Maranda ODonnell v. Harris County, Texas, e

Case: 17-20333 Document: 00514497059 Page: 1 Date Filed: 06/01/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 17-20333

Fifth Circuit

FILED

June 1, 2018

MARANDA LYNN ODONNELL, Lyle W. Cayce

Clerk

Plaintiff - Appellee

v.

HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH

LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ;

JILL WALLACE; PAULA GOODHART; BILL HARMON; NATALIE C.

FLEMNG; JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY;

PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON; DAN

SPJUT; JUDGE DIANE BULL; JUDGE ROBIN BROWN; DONALD

SMYTH; JEAN HUGHES,

Defendants - Appellants

-----------------------------------------------------

LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD,

Plaintiffs - Appellees

v.

HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART

HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA

ESTELA VILLAGOMEZ,

Defendants - Appellants

Appeals from the United States District Court

for the Southern District of Texas

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ON PETITION FOR REHEARING

Before CLEMENT and HAYNES, Circuit Judges.*

EDITH BROWN CLEMENT, Circuit Judge:

The appellees’ petition for panel rehearing is granted. The prior panel

opinion, ODonnell v. Harris County, No. 17-20333 (5th Cir. 2018) is withdrawn,

and the following opinion is substituted:

Maranda ODonnell and other plaintiffs (collectively, “ODonnell”)

brought a class action suit against Harris County, Texas, and a number of its

officials—including County Judges, 1 Hearing Officers, and the Sheriff

(collectively, the “County”)—under 42 U.S.C. § 1983. ODonnell alleged the

County’s system of setting bail for indigent misdemeanor arrestees violated

Texas statutory and constitutional law, as well as the equal protection and due

process clauses of the Fourteenth Amendment. ODonnell moved for a

preliminary injunction, and the County moved for summary judgment. After

eight days of hearings, at which the parties presented numerous fact and

expert witnesses and voluminous written evidence, the district court denied

the County’s summary judgment motion and granted ODonnell’s motion for a

preliminary injunction. The County then applied to this court for a stay of the

injunction pending appeal, but the motion was denied, and the injunction went

into effect. Before this court now is the County’s appeal, seeking vacatur of the

injunction and raising numerous legal challenges.

* Judge Prado was a member of the original panel and participated in the initial

decision. He retired from the Court on April 2, 2018, and therefore did not participate in the

panel’s review of the petitions for panel rehearing. The case is being decided by a quorum. 28

U.S.C. § 46(d).

1 The parties use the term “County Judges” to refer to the judges of the County

Criminal Courts of Harris County, and we will use that same term. This term does not refer

to the County Judge who is the head of the County Commissioners’ Court of Harris County.

2

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For the reasons set forth, we affirm most of the district court’s rulings,

including its conclusion that ODonnell established a likelihood of success on

the merits of its claims that the County’s policies violate procedural due

process and equal protection. We disagree, however, with the district court’s

analysis in three respects: First, its definition of ODonnell’s liberty interest

under due process was too broad, and the procedures it required to protect that

interest were too onerous. Second, it erred by concluding that the County

Sheriff can be considered a County policymaker under § 1983. Finally, the

district court’s injunction was overbroad. As a result, we will vacate the

injunction and order the district court to modify its terms in a manner

consistent with this opinion.

I.

We need not conduct an exhaustive review of the facts. The district

court’s account is expansive: It comprised over 120 pages of factual findings,

including not only the specific details of the County’s bail-setting procedures,

but also the history of bail and recent reform attempts nationwide.

Bail in Texas is either secured or unsecured. Secured bail requires the

arrestee to post bond either out of the arrestee’s pocket or from a third-party

surety (often bail bondsmen, who generally require a 10% non-refundable

premium in exchange for posting bond). Unsecured bail, by contrast, allows the

arrestee to be released without posting bond, but if he fails to attend his court

date and/or comply with any nonfinancial bail conditions, he becomes liable to

the County for the bail amount. Both secured and unsecured bail may also

include nonfinancial conditions to assure the detainee’s attendance at future

hearings.

The basic procedural framework governing the administration of bail in

Harris County is set by the Texas Code of Criminal Procedure and local rules

promulgated by County Judges. See Tex. Gov’t Code § 75.403(f). When a

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misdemeanor defendant is arrested, the prosecutor submits a secured bail

amount according to a bond schedule established by County Judges. See Harris

County Criminal Courts at Law Rule 9 (hereinafter, “Local Rule”). Bonds are

then formally set by Hearing Officers and County Judges. Tex. Code. Crim.

Pro. art. 2.09, 17.15. Hearing Officers are generally responsible for setting bail

amounts in the first instance. This often occurs during the arrestee’s initial

probable cause hearing, which must be held within 24 hours of arrest. Tex.

Code Crim. Pro. art. 17.033; Local Rule 4.2.1.1. County Judges review the

Hearing Officers’ determinations and can adjust bail amounts at a “Next

Business Day” hearing. Local Rule 4.3.1.

The Hearing Officers and County Judges are legally proscribed from

mechanically applying the bail schedule to a given arrestee. Instead, the Texas

Code requires officials to conduct an individualized review based on five

enumerated factors, which include the defendant’s ability to pay, the charge,

and community safety. Tex. Code of Crim. Pro. art. 17.15. The Local Rules

explicitly state the schedule is not mandatory. They also authorize a similar,

individualized assessment using factors which partially overlap with those

listed in the Code. Local Rule 4.2.4. Hearing Officers and County Judges

sometimes receive assessments by Pretrial Services, which interviews the

detainees prior to hearings, calculates the detainees flight and safety risk

based on a point system, and then makes specific recommendations regarding

bail. 2

Despite these formal requirements, the district court found that, in

practice, County procedures were dictated by an unwritten custom and

Individualized assessment is also assured by a preexisting federal consent decree,

2

which requires County officials to make individualized assessments of each misdemeanor

defendant’s case and adjust the scheduled bail amount accordingly, or else release the

defendant on unsecured or nonfinancial conditions.

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practice that was marred by gross inefficiencies, did not achieve any

individualized assessment in setting bail, and was incompetent to do so. The

district court noted that the statutorily-mandated probable cause hearing

(where bail is usually set) frequently does not occur within 24 hours of arrest.

The hearings often last seconds, and rarely more than a few minutes. Arrestees

are instructed not to speak, and are not offered any opportunity to submit

evidence of relative ability to post bond at the scheduled amount.

The court found that the results of this flawed procedural framework

demonstrate the lack of individualized assessments when officials set bail.

County officials “impose the scheduled bail amounts on a secured basis about

90 percent of the time. When [they] do change the bail amount, it is often to

conform the amount to what is in the bail schedule.” The court further found

that, when Pretrial Services recommends release on personal bond, Hearing

Officers reject the suggestion 66% of the time. Because less than 10% of

misdemeanor arrestees are assigned an unsecured personal bond, some

amount of upfront payment is required for release in the vast majority of cases.

The court also found that the “Next Business Day” hearing before a

County Judge fails to provide a meaningful review of the Hearing Officer’s bail

determinations. Arrestees routinely must wait days for their hearings. County

Judges adjust bail amounts or grant unsecured bonds in less than 1% of cases.

Furthermore, prosecutors routinely offer time-served plea bargains at the

hearing, and arrestees are under immense pressure to accept the plea deals or

else remain incarcerated for days or weeks until they are appointed a lawyer.

The district court further noted the various ways in which the imposition

of secured bail specifically targets poor arrestees. For example, under the

County’s risk-assessment point system used by Pretrial Services, poverty

indicators (such as not owning a car) receive the same point value as prior

criminal violations or prior failures to appear in court. Thus, an arrestee’s

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impoverishment increased the likelihood he or she would need to pay to be

released.

The court also observed that Hearing Officers imposed secured bails

upon arrestees after having been made aware of an arrestee’s indigence by the

risk-assessment reports or by the arrestee’s own statements. And further, after

extensive review of numerous bail hearings, the court concluded Hearing

Officers were aware that, by imposing a secured bail on indigent arrestees,

they were ensuring that those arrestees would remain detained.

The court rejected the argument that imposing secured bonds served the

County’s interest in ensuring the arrestee appeared at the future court date

and committed no further crime. The court’s review of reams of empirical data

suggested the opposite: that “release on secured financial conditions does not

assure better rates of appearance or of law-abiding conduct before trial

compared to release on unsecured bonds or nonfinancial conditions of

supervision.” Instead, the County’s true purpose was “to achieve pretrial

detention of misdemeanor defendants who are too poor to pay, when those

defendants would promptly be released if they could pay.” In short, “secured

money bail function[ed] as a pretrial detention order” against the indigent

misdemeanor arrestees.

The district court also reviewed voluminous empirical data and academic

literature to evaluate the impact of pretrial detention on an arrestee. The court

found that the expected outcomes for an arrestee who cannot afford to post

bond are significantly worse than for those arrestees who can. In general,

indigent arrestees who remain incarcerated because they cannot make bail are

significantly more likely to plead guilty and to be sentenced to imprisonment.

They also receive sentences that are on average twice as long as their bonded

counterparts. Furthermore, the district court found that pretrial detention can

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lead to loss of job, family stress, and even an increase in likeliness to commit

crime.

The court concluded that ODonnell had established a likelihood of

success on the merits of their claim that the County violated both the

procedural due process rights and the equal protection rights of indigent

misdemeanor detainees. It granted the motion for a preliminary injunction,

requiring the implementation of new safeguards and the release of numerous

detainees subjected to the insufficient procedures.

II.

This court reviews a “district court’s grant of a preliminary injunction . . .

for abuse of discretion.” Women’s Med. Cty. of Nw. Hous. v. Bell, 248 F.3d 411,

418–19 (5th Cir. 2001). “Findings of fact are reviewed only for clear error; legal

conclusions are subject to de novo review.” Id. at 419. “Issuance of an injunction

rests primarily in the informed discretion of the district court. Yet injunctive

relief is a drastic remedy, not to be applied as a matter of course.” Marshall v.

Goodyear Tire & Rubber Co., 554 F.2d 730, 733 (5th Cir. 1977) (internal

citations omitted). A district court abuses its discretion if it issues an injunction

that “is not narrowly tailored to remedy the specific action which gives rise to

the order as determined by the substantive law at issue.” Scott v. Schedler, 826

F.3d 207, 211 (5th Cir. 2016) (internal quotation marks and alterations

omitted).

III.

The County raises a number of arguments that do not implicate the

merits of ODonnell’s constitutional claims. We address these first.

A. Status of County Judges and Sheriff as County Policymakers under

§ 1983

The County appeals the district court’s ruling that the County Judges

and Sheriff qualified as Harris County policymakers under 42 U.S.C. § 1983.

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Liability under § 1983 attaches to local government officers “whose [unlawful]

decisions represent the official policy of the local governmental unit.” Jett v.

Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989). Whether an officer has been

given this authority is “a question of state law.” Pembaur v. City of Cincinnati,

475 U.S. 469, 483 (1986). “Official policy” includes unwritten widespread

practices that are “so common and well settled as to constitute a custom that

fairly represents municipal policy.” Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.

1992) (quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en

banc)). And unlawful decisions include “acquiescence in a longstanding

practice or custom which constitutes the standard operating procedure of the

local governmental entity.” Jett, 491 U.S. at 737 (internal quotation marks

omitted).

Though a judge is not liable when “acting in his or her judicial capacity

to enforce state law,” Moore, 958 F.2d at 94, we agree with the district court

that the County Judges are policymakers for the municipality. Texas law

explicitly establishes that the Judges are “county officers,” TEX. CONST. art. V

§ 24, imbued with broad authority to promulgate rules that will dictate post-

arrest policies consistent with the provisions of state law, Tex. Gov’t Code

§ 75.403(f). Here, ODonnell alleged that, despite having this authority, County

Judges acquiesced in an unwritten, countywide process for setting bail that

violated both state law and the Constitution. In other words, they sue the

County Judges as municipal officers in their capacity as county policymakers.

Section 1983 affords them an appropriate basis to do so.

We agree with the County that its Sheriff is not an appropriate party for

attaching municipal liability, however. The Sheriff does not have the same

policymaking authority as the County Judges. To the contrary, the Sheriff is

legally obliged to execute all lawful process and cannot release prisoners

committed to jail by a magistrate’s warrant—even if prisoners are committed

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“for want of bail.” See Tex. Code Crim. Pro. arts. 2.13, 2.16, 2.18; Tex. Loc. Gov’t

Code § 351.041(a) (noting the Sheriff’s authority is “subject to an order of the

proper court”). State statutes, in other words, do not authorize the County

Sheriff to avoid executing judicial orders imposing secured bail by unilaterally

declaring them unconstitutional. Accordingly, the County Sheriff does not

qualify as a municipal policymaker under § 1983.

B. Younger Abstention

The County next argues that Younger abstention precludes our review of

ODonnell’s claims. We are not persuaded.

The Supreme Court held in Younger v. Harris that, when a party in

federal court is simultaneously defending a state criminal prosecution, federal

courts “should not act to restrain [the state] criminal prosecution, when the

moving party has an adequate remedy at law and will not suffer irreparable

injury if denied equitable relief.” 401 U.S. 37, 43–44 (1971). Its conclusion was

motivated by the “basic doctrine of equity jurisprudence,” “notion[s] of

‘comity,’” and “Our Federalism.” Id. Courts apply a three-part test when

deciding whether to abstain under Younger. There must be (1) “an ongoing

state judicial proceeding” (2) that “implicate[s] important state interests” and

(3) offers “adequate opportunity” to “raise constitutional challenges.”

Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432

(1982).

The third prong of this test is not met. As the Supreme Court has already

concluded, the relief sought by ODonnell—i.e., improvement of pretrial

procedures and practice—is not properly reviewed by criminal proceedings in

state court. See Gerstein v. Pugh, 420 U.S. 103, 108 n.9 (1975) (noting that

abstention did not apply because “[t]he injunction was not directed at the state

prosecutions as such, but only at the legality of pretrial detention without a

judicial hearing, an issue that could not be raised in defense of the criminal

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prosecution”); see also Pugh v. Rainwater, 483 F.2d 778, 781–82 (5th Cir. 1973)

(noting that a federal question whose “resolution . . . would [only] affect state

procedures for handling criminal cases . . . . is not ‘against any pending or

future court proceedings as such’” (quoting Fuentes v. Shevin, 407 U.S. 67, 71

n.3 (1971))), rev’d on other grounds by Gerstein, 420 U.S. 103. As the district

court noted, the adequacy of the state court review of bail-setting procedures

is essential to ODonnell’s federal cause of action. In short, “[t]o find that the

plaintiffs have an adequate hearing on their constitutional claim in state court

would decide [its] merits.”

We also note that the policy concerns underlying this doctrine are not

applicable here. The injunction sought by ODonnell seeks to impose

“nondiscretionary procedural safeguard[s],” which will not require federal

intrusion into pre-trial decisions on a case-by-case basis. Tarter v. Hurry, 646

F.2d 1010, 1013–14 (5th Cir. Unit A June 1981); compare O’Shea v. Littleton,

414 U.S. 488, 499–502 (1974) (noting that the enforcement of the improper

injunction in question required “continuous supervision by the federal court

over the conduct of the petitioners in the course of future criminal trial

proceedings involving any of the members of the respondents’ broadly defined

class”). Such relief does not implicate our concerns for comity and federalism. 3

C. The County’s Eighth Amendment Argument

The County contends that ODonnell’s complaint “is an Eighth

Amendment case wearing a Fourteenth Amendment costume.” The Eighth

3 The County also argues that we are precluded from reviewing ODonnell’s claims

because they should have been raised as a petition for habeas corpus. See Preiser v.

Rodriguez, 411 U.S. 475 (1973). We agree with the district court that this argument has been

waived. The County neither mentioned Preiser nor pressed the habeas argument until its

motion for a stay of the injunction. The closest the County came to preserving this argument

was one sentence in its response to ODonnell’s motion for preliminary injunction. This

passing reference is insufficient to preserve the argument, especially given that it is

dispositive of the case at the threshold stage.

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Amendment states in relevant part that “[e]xcessive bail shall not be required.”

U.S. CONST. amend. VIII. It is certainly true that, when a constitutional

provision specifically addresses a given claim for relief under 42 U.S.C. § 1983,

a party should seek to apply that provision directly. See Graham v. Connor,

490 U.S. 386, 394 (1989); cf. Manuel v. City of Joliet, 137 S. Ct. 911, 917 (2017).

But we have already concluded that “[t]he incarceration of those who cannot

[pay money bail], without meaningful consideration of other possible

alternatives, infringes on both due process and equal protection requirements.”

Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (en banc). ODonnell’s

present claims do not run afoul of Graham.

IV.

We now address the merits of ODonnell’s constitutional claims. For the

reasons set forth below, we affirm the court’s rulings that the County’s bail

system violates both due process and equal protection, though we modify the

basis for its conclusion as to due process.

A. Due Process Claim

Procedural due process claims are subject to a two-step inquiry: “The

first question asks whether there exists a liberty or property interest which

has been interfered with by the State; the second examines whether the

procedures attendant upon that deprivation were constitutionally sufficient.”

Meza v. Livingston, 607 F.3d 392, 399 (5th Cir. 2010) (internal quotation marks

omitted). Applying this framework, we disagree with the district court’s

formulation of the liberty interest created by state law, but agree that the

procedural protections of bail-setting procedures are nevertheless

constitutionally deficient.

Liberty interests protected by the due process clause can arise from two

sources, “the Due Process Clause itself and the laws of the States.” Ky. Dep’t of

Corr. v. Thompson, 490 U.S. 454, 460 (1989) (internal citation omitted). Here,

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our focus is the law of Texas, which has acknowledged the two-fold, conflicting

purpose of bail. This tension defines the protected liberty interest at issue here.

On the one hand, bail is meant “to secure the presence of the defendant

in court at his trial.” Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim. App.

1980). Accordingly, “ability to make bail is a factor to be considered, [but]

ability alone, even indigency, does not control the amount of bail.” Ex parte

Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980). On the other hand,

Texas courts have repeatedly emphasized the importance of bail as a means of

protecting an accused detainee’s constitutional right “in remaining free before

trial,” which allows for the “unhampered preparation of a defense, and . . .

prevent[s] the infliction of punishment prior to conviction.” Ex parte Anderer,

61 S.W.3d 398, 404–05 (Tex. Crim. App. 2001) (en banc). Accordingly, the

courts have sought to limit the imposition of “preventive [pretrial] detention”

as “abhorrent to the American system of justice.” Ex parte Davis, 574 S.W.2d

166, 169 (Tex. Crim. App. 1978). Notably, state courts have recognized that

“the power to . . . require bail,” not simply the denial of bail, can be an

“instrument of [such] oppression.” Taylor v. State, 667 S.W.2d 149, 151 (Tex.

Crim. App. 1984) (en banc) (emphasis added).

These protections are also ensconced in the Texas Constitution.

Specifically, Article 1 § 11 reads in relevant part, “[a]ll prisoners shall be

bailable by sufficient sureties.” TEX. CONST. art. 1, § 11. The provision is

followed by a list of exceptions—i.e., circumstances in which an arrestee may

be “denied release on bail.” Id. §§ 11b, 11c. The only exception tied to

misdemeanor charges pertains to family violence offenses. See id. § 11c. The

scope of these exceptions has been carefully limited by state courts, which

observe that they “include the seeds of preventive detention.” Davis, 574

S.W.2d at 169.

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The district court held that § 11 creates a state-made “liberty interest in

misdemeanor defendants’ release from custody before trial. Under Texas law,

judicial officers . . . have no authority or discretion to order pretrial preventive

detention in misdemeanor cases.” This is too broad a reading of the law. The

Constitution creates a right to bail on “sufficient sureties,” which includes both

a concern for the arrestee’s interest in pretrial freedom and the court’s interest

in assurance. Since bail is not purely defined by what the detainee can afford,

see Charlesworth, 600 S.W.2d at 317, the constitutional provision forbidding

denial of release on bail for misdemeanor arrestees does not create an

automatic right to pretrial release. 4

Instead, Texas state law creates a right to bail that appropriately weighs

the detainees’ interest in pretrial release and the court’s interest in securing

the detainee’s attendance. Yet, as noted, state law forbids the setting of bail as

an “instrument of oppression.” Thus, magistrates may not impose a secured

bail solely for the purpose of detaining the accused. And, when the accused is

indigent, setting a secured bail will, in most cases, have the same effect as a

detention order. Accordingly, such decisions must reflect a careful weighing of

the individualized factors set forth by both the state Code of Criminal

Procedure and Local Rules.

Having found a state-created interest, we turn now to whether the

procedures in place adequately protect that interest. As always, we are guided

by a three-part balancing test that looks to “the private interest . . . affected by

the official action”; “the risk of an erroneous deprivation of such interest

through the procedure used, and the probable value, if any, of additional or

4 We also note that Texas courts have never sought to eliminate the use of bail bonds.

To the contrary, the use of secured bail was affirmed by the Texas Court of Criminal Appeals

in Anderer, despite the opinion’s strong language in support of an accused’s pretrial freedom.

Anderer, 61 S.W.3d at 403.

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substitute procedural safeguards”; and “the Government’s interest, including

the function involved and the fiscal and administrative burdens” that new

procedures would impose. Meza, 607 F.3d at 402 (quoting Mathews v. Eldridge,

424 U.S. 319, 335 (1976)).

As the district court found, the current procedures are inadequate—even

when applied to our narrower understanding of the liberty interest at stake.

The court’s factual findings (which are not clearly erroneous) demonstrate that

secured bail orders are imposed almost automatically on indigent arrestees.

Far from demonstrating sensitivity to the indigent misdemeanor defendants’

ability to pay, Hearing Officers and County Judges almost always set a bail

amount that detains the indigent. In other words, the current procedure does

not sufficiently protect detainees from magistrates imposing bail as an

“instrument of oppression.”

The district court laid out specific procedures necessary to satisfy

constitutional due process when setting bail. Specifically, it found that,

Due process requires: (1) notice that the financial and other

resource information Pretrial Services officers collect is for the

purpose of determining a misdemeanor arrestee’s eligibility for

release or detention; (2) a hearing at which the arrestee has an

opportunity to be heard and to present evidence; (3) an impartial

decisionmaker; (4) a written statement by the factfinder as to the

evidence relied on to find that a secured financial condition is the

only reasonable way to assure the arrestee’s appearance at

hearings and law-abiding behavior before trial; and (5) timely

proceedings within 24 hours of arrest. 5

5 The district court analyzed new efforts by both the County and State to improve their

bail-setting procedures. We need not review its discussion here. We note, however, that we

agree with its conclusions that the County’s proposed remedies, which are beginning to be

implemented, fail to address the constitutional violations at issue. We also agree that the

changes proposed by the State would provide a more adequate remedy. Should these

provisions become law, the need for the court’s intervention must be revisited.

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The County challenges these requirements on appeal. We find some of their

objections persuasive.

As this court has noted, the quality of procedural protections owed a

defendant is evaluated on a “spectrum” based on a case-by-case evaluation of

the liberty interests and governmental burdens at issue. Meza, 607 F.3d at

408–09. We note that the liberty interest of the arrestees here are particularly

important: the right to pretrial liberty of those accused (that is, presumed

innocent) of misdemeanor crimes upon the court’s receipt of reasonable

assurance of their return. See id. So too, however, is the government’s interest

in efficiency. After all, the accused also stands to benefit from efficient

processing because it “allow[s] [for his or her] expeditious release.” United

States v. Chagra, 701 F.2d 354, 363 (5th Cir. 1983); cf. Cty. of Riverside v.

McLaughlin, 500 U.S. 44, 53 (1991) (noting that defendants might be disserved

by adding procedural complexity into an already complicated system). The

sheer number of bail hearings in Harris County each year—according to the

court, over 50,000 people were arrested on misdemeanor charges in 2015—is a

significant factor militating against overcorrection.

With this in mind, we make two modifications to the district court’s

conclusions regarding the procedural floor. First, we do not require factfinders

to issue a written statement of their reasons. While we acknowledge “the

provision for a written record helps to insure that [such officials], faced with

possible scrutiny by state officials . . . [and] the courts . . . will act fairly,” Wolff

v. McDonnell, 418 U.S. 539, 565 (1974), such a drastic increase in the burden

imposed upon Hearing Officers will do more harm than good. We decline to

hold that the Constitution requires the County to produce 50,000 written

opinions per year to satisfy due process. Cf. United States v. McConnell, 842

F.2d 105, 110 (5th Cir. 1988) (concluding that, under the Bail Reform Act of

1984, the “court must [merely] explain its reasons for concluding that the

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particular financial requirement is a necessary part of the conditions for

release” when setting a bond that a detainee cannot pay). Moreover, since the

constitutional defect in the process afforded was the automatic imposition of

pretrial detention on indigent misdemeanor arrestees, requiring magistrates

to specifically enunciate their individualized, case-specific reasons for so doing

is a sufficient remedy.

Second, we find that the district court’s 24-hour requirement is too strict

under federal constitutional standards. The court’s decision to impose a 24-

hour limit relied not on an analysis of present Harris County procedures and

their current capacity; rather, it relied on the fact that a district court imposed

this requirement thirty years ago (that is, prior to modern advancements in

computer and communications technology). See Sanders v. City of Hous., 543

F. Supp. 694 (S.D. Tex. 1982). But Sanders’s holding, which was not grounded

in procedural due process but in the Fourth Amendment, relied on the

Supreme Court opinion, Gerstein, 420 U.S. 103. Id. at 699. And Gerstein was

later interpreted as establishing a right to a probable cause hearing within 48

hours. McLaughlin, 500 U.S. at 56–57. Further, McLaughlin explicitly

included bail hearings within this deadline. Id. at 58.

We conclude that the federal due process right entitles detainees to a

hearing within 48 hours. Our review of the due process right at issue here

counsels against an expansion of the right already afforded detainees under

the Fourth Amendment by McLaughlin. We note in particular that the heavy

administrative burden of a 24-hour requirement on the County is evidenced by

the district court’s own finding: the fact that 20% of detainees do not receive a

probable cause hearing within 24 hours despite the statutory requirement.

Imposing the same requirement for bail would only exacerbate such issues.

The court’s conclusion was also based on its interpretation of state law.

But while state law may define liberty interests protected under the procedural

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due process clause, it does not define the procedure constitutionally required

to protect that interest. See Wansley v. Miss. Dep’t of Corr., 769 F.3d 309, 313

(5th Cir. 2014) (noting that state law cannot serve as “the source of . . . process

due”); Giovanni v. Lynn, 48 F.3d 908, 912 (5th Cir. 1995) (“[W]here a liberty

. . . interest is infringed, the process which is due under the United States

Constitution is that measured by the due process clause, not that called for by

state regulations. Mere failure to accord the procedural protections called for

by state law or regulation does not of itself amount to a denial of due process.”

(internal citation omitted)). Accordingly, although the parties contest whether

state law imposes a 24- or 48-hour requirement, we need not resolve this issue

because state law procedural requirements do not impact our federal due

process analysis.

The district court’s definition of ODonnell’s liberty interests is too broad,

and the procedural protections it required are too strict. Nevertheless, even

under our more forgiving framework, we agree that the County procedures

violate ODonnell’s due process rights.

B. Equal Protection

The district court held that the County’s bail-setting procedures violated

the equal protection clause of the Fourteenth Amendment because they treat

otherwise similarly-situated misdemeanor arrestees differently based solely on

their relative wealth. The County makes three separate arguments against

this holding. It argues: (1) ODonnell’s disparate impact theory is not cognizable

under the equal protection clause, see Johnson v. Rodriguez, 110 F.3d 299, 306

(5th Cir. 1997); (2) rational basis review applies and is satisfied; (3) even if

heightened scrutiny applies, it is satisfied. We disagree.

First, the district court did not conclude that the County policies and

procedures violated the equal protection clause solely on the basis of their

disparate impact. Instead, it found the County’s custom and practice

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purposefully “detain[ed] misdemeanor defendants before trial who are

otherwise eligible for release, but whose indigence makes them unable to pay

secured financial conditions of release.” The conclusion of a discriminatory

purpose was evidenced by numerous, sufficiently supported factual findings,

including direct evidence from bail hearings. This custom and practice resulted

in detainment solely due to a person’s indigency because the financial

conditions for release are based on predetermined amounts beyond a person's

ability to pay and without any “meaningful consideration of other possible

alternatives.” Rainwater, 572 F.2d at 1057. Under this circuit’s binding

precedent, the district court was therefore correct to conclude that this

discriminatory action was unconstitutional. Id. at 1056–57 (noting that pre-

trial “imprisonment solely because of indigent status is invidious

discrimination and not constitutionally permissible” under both “due process

and equal protection requirements”); see also Griffin v. Illinois, 351 U.S. 12, 18

(1956) (noting that the indigent are protected by equal protection “at all stages

of [criminal] proceedings”). Because this conclusion is sufficient to decide this

case, we need not determine whether the equal protection clause requires a

categorical bar on secured money bail for indigent misdemeanor arrestees who

cannot pay it.

Second, the district court’s application of intermediate scrutiny was not

in error. It is true that, ordinarily, “[n]either prisoners nor indigents constitute

a suspect class.” Carson v. Johnson, 112 F.3d 818, 821–22 (5th Cir. 1997). But

the Supreme Court has found that heightened scrutiny is required when

criminal laws detain poor defendants because of their indigence. See, e.g., Tate

v. Short, 401 U.S. 395, 397–99 (1971) (invalidating a facially neutral statute

that authorized imprisonment for failure to pay fines because it violated the

equal protection rights of indigents); Williams v. Illinois, 399 U.S. 235, 241–42

(1970) (invalidating a facially neutral statute that required convicted

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defendants to remain in jail beyond the maximum sentence if they could not

pay other fines associated with their sentences because it violated the equal

protection rights of indigents). Reviewing this case law, the Supreme Court

later noted that indigents receive a heightened scrutiny where two conditions

are met: (1) “because of their impecunity they were completely unable to pay

for some desired benefit,” and (2) “as a consequence, they sustained an absolute

deprivation of a meaningful opportunity to enjoy that benefit.” San Antonio

Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 20 (1973).

We conclude that this case falls into the exception created by the Court.

Both aspects of the Rodriguez analysis apply here: indigent misdemeanor

arrestees are unable to pay secured bail, and, as a result, sustain an absolute

deprivation of their most basic liberty interests—freedom from incarceration.

Moreover, this case presents the same basic injustice: poor arrestees in Harris

County are incarcerated where similarly situated wealthy arrestees are not,

solely because the indigent cannot afford to pay a secured bond. Heightened

scrutiny of the County’s policy is appropriate. 6

Third, we discern no error in the court’s conclusion that the County’s

policy failed to meet the tailoring requirements of intermediate scrutiny. In

other words, we will not disturb the court’s finding that, although the County

had a compelling interest in the assurance of a misdemeanor detainee’s future

6 We acknowledge that the cited Supreme Court cases applied to indigents who were

already found guilty. But this court in Rainwater concluded that the distinction between post-

conviction detention targeting indigents and pretrial detention targeting indigents is one

without a difference. We found that, regardless of its timing, “imprisonment solely because

of indigent status is invidious discrimination and not constitutionally permissible.”

Rainwater, 572 F.2d at 1056 (citing Williams and Tate). Our conclusion was based on the

“punitive and heavily burdensome nature of pretrial confinement” and the fact that it

deprives someone who has only been “accused but not convicted of crime” of their basic

liberty. Id.; see also Anderson v. Nosser, 438 F.2d 183, 190 (5th Cir. 1971) (noting that the

pre-trial detainment of “unconvicted misdemeanants” was a “[p]unitive measure[ ] . . . out of

harmony with the presumption of innocence”). We are bound by this analysis.

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appearance and lawful behavior, its policy was not narrowly tailored to meet

that interest.

The court’s thorough review of empirical data and studies found that the

County had failed to establish any “link between financial conditions of release

and appearance at trial or law-abiding behavior before trial.” For example,

both parties’ experts agreed that the County lacked adequate data to

demonstrate whether secured bail was more effective than personal bonds in

securing a detainee’s future appearance. Notably, even after analyzing the

incomplete data that were available, neither expert discerned more than a

negligible comparative impact on detainees’ attendance. Additionally, the

court considered a comprehensive study of the impact of Harris County’s bail

system on the behavior of misdemeanor detainees between 2008 and 2013. The

study found that the imposition of secured bail might increase the likelihood of

unlawful behavior. See Paul Heaton et al., The Downstream Consequences of

Misdemeanor Pretrial Detention, 69 STAN. L. REV. 711, 786–87 (2017)

(estimating that the release on personal bond of the lowest-risk detainees

would have resulted in 1,600 fewer felonies and 2,400 fewer misdemeanors

within the following eighteen months). These findings mirrored those of

various empirical studies from other jurisdictions.

The County, of course, challenges these assertions with empirical studies

of its own. But its studies at best cast some doubt on the court’s conclusions.

They do not establish clear error. We are satisfied that the court had sufficient

evidence to conclude that Harris County’s use of secured bail violated equal

protection.

In sum, the essence of the district court’s equal protection analysis can

be boiled down to the following: take two misdemeanor arrestees who are

identical in every way—same charge, same criminal backgrounds, same

circumstances, etc.—except that one is wealthy and one is indigent. Applying

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the County’s current custom and practice, with their lack of individualized

assessment and mechanical application of the secured bail schedule, both

arrestees would almost certainly receive identical secured bail amounts. One

arrestee is able to post bond, and the other is not. As a result, the wealthy

arrestee is less likely to plead guilty, more likely to receive a shorter sentence

or be acquitted, and less likely to bear the social costs of incarceration. The

poor arrestee, by contrast, must bear the brunt of all of these, simply because

he has less money than his wealthy counterpart. The district court held that

this state of affairs violates the equal protection clause, and we agree.

V.

Having largely affirmed the district court’s determinations that

constitutional violations occurred, we turn to the court’s remedy. When

crafting an injunction, district courts are guided by the Supreme Court’s

instruction that “the scope of injunctive relief is dictated by the extent of the

violation established.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). A

district court abuses its discretion if it does not “narrowly tailor an injunction

to remedy the specific action which gives rise to the order.” John Doe # 1 v.

Veneman, 380 F.3d 807, 818 (5th Cir. 2004). Thus, an injunction must be

vacated if it “fails to meet these standards” and “is overbroad.” Id. “The

broadness of an injunction refers to the range of proscribed activity . . . . [and]

is a matter of substantive law.” U.S. Steel Corp. v. United Mine Workers of Am.,

519 F.2d 1236, 1246 n.19 (5th Cir. 1975).

The County argues that, even if the panel credits every one of the district

court’s factual findings and conclusions of law, the injunction it ultimately

crafted is still overbroad. We agree. There is a significant mismatch between

the district court’s procedure-focused legal analysis and the sweeping

injunction it implemented.

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The fundamental source of constitutional deficiency in the due process

and equal protection analyses is the same: the County’s mechanical application

of the secured bail schedule without regard for the individual arrestee’s

personal circumstances. Thus, the equitable remedy necessary to cure the

constitutional infirmities arising under both clauses is the same: the County

must implement the constitutionally-necessary procedures to engage in a case-

by-case evaluation of a given arrestee’s circumstances, taking into account the

various factors required by Texas state law (only one of which is ability to pay).

These procedures are: notice, an opportunity to be heard and submit evidence

within 48 hours of arrest, and a reasoned decision by an impartial decision-

maker.

That is not what the preliminary injunction does, however. Rather, it

amounts to the outright elimination of secured bail for indigent misdemeanor

arrestees. That remedy makes some sense if one assumes a fundamental

substantive due process right to be free from any form of wealth-based

detention. But, as the foregoing analysis establishes, no such right is in view.

The sweeping injunction is overbroad.

We therefore conclude that the district court abused its discretion in

crafting an injunction that was not “narrowly tailor[ed] . . . to remedy the

specific action which gives rise to the order.” Veneman, 380 F.3d at 818. We

will vacate the injunction and remand to allow the court to craft a remedy more

finely tuned to address the harm.

The following represents the sort of modification that would be

appropriate here, although we leave the details to the district court’s

discretion:

With these principles in mind, the court will order the following relief, to

take effect within 30 days, unless those enjoined move for and show good cause

for a reasonable, brief extension. Any motions for extension will be set for

prompt hearing and resolution.

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• Harris County is enjoined from imposing prescheduled bail amounts

as a condition of release on arrestees who attest that they cannot

afford such amounts without providing an adequate process for

ensuring that there is individual consideration for each arrestee of

whether another amount or condition provides sufficient sureties.

• Pretrial Services officers, as County employees and subject to its

policies, must verify an arrestee’s ability to pay a prescheduled

financial condition of release by an affidavit, and must explain to

arrestees the nature and significance of the verification process.

• The purpose of the explanation is to provide the notice due process

requires that a misdemeanor defendant’s state constitutional right to

be bailable by sufficient sureties is at stake in the proceedings.

Pretrial Services may administer either the form of the affidavit

currently used to determine eligibility for appointed counsel or the

adapted form that Dr. VanNostrand testified was prepared for

Pretrial Services to be administered by July 1, 2017, if they comply

with the below guidelines. Pretrial Services must deliver completed

affidavits to the Harris County Sheriff’s Office before a declarant’s

probable cause hearing.

• The affidavit must give the misdemeanor arrestee sufficient

opportunity to declare under penalty of perjury, after the significance

of the information has been explained, the maximum amount of

financial security the arrestee would be able to post or pay up front

within 24 hours of arrest. The affidavit should ask the arrestee to

provide details about their financial situation sufficient to help the

County make reliable determinations regarding the amount of bail

that would provide sufficient sureties, including: 1) arrestee and

spouse’s income from employment, real property, interest and

dividends, gifts, alimony, child support, retirement, disability,

unemployment payments, public-assistance, and other sources; 2)

arrestee and spouse’s employment history for the prior two years and

gross monthly pay; 3) arrestee and spouse’s present cash available

and any financial institutions where cash is held; 4) assets owned,

e.g., real estate and motor vehicles; 5) money owed to arrestee and

spouse; 6) dependents of arrestee and spouse, and their ages; 7)

estimation of itemized monthly expenses; 8) taxes and legal costs; 9)

expected major changes in income or expenses; 10) additional

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information the arrestee wishes to provide to help explain the

inability to pay. The question is neither the arrestee’s immediate

ability to pay with cash on hand, nor what assets the arrestee could

eventually produce after a period of pretrial detention. The question

is what amount the arrestee could reasonably pay within 24 hours of

his or her arrest, from any source, including the contributions of

family and friends.

• The purpose of this requirement is to provide a better, easier, and

faster way to get the information needed to determine a misdemeanor

defendant’s ability to pay. The Hearing Officers and County Judges

testified that they presently do not know who has the ability to pay.

The affidavit can be completed within 24 hours after arrest; the

current process of verifying references by phone extends for days after

arrest.

• The court does not order relief against the Hearing Officers or against

the County Judges in their judicial or legislative capacities.

• Misdemeanor defendants who are not subject to: (1) formal holds

preventing their release from detention; (2) pending mental-health

evaluations to determine competency; or (3) pretrial preventive

detention orders for violating a condition of release for a crime of

family violence, have a constitutionally protected state-created liberty

interest in being bailable by sufficient sureties before trial. If a

misdemeanor defendant has executed an affidavit showing an

inability to pay prescheduled money bail and has not been released

either: (1) on an unsecured personal bond with nonfinancial

conditions of release; or (2) on a secured money bond for which the

defendant could pay a commercial surety’s premium, as indicated on

the affidavit, then the defendant is entitled to a hearing within 48

hours of arrest in which an impartial decision-maker conducts an

individual assessment of whether another amount of bail or other

condition provides sufficient sureties. At the hearing, the arrestee

must have an opportunity to describe evidence in his or her favor, and

to respond to evidence described or presented by law enforcement. If

the decision-maker declines to lower bail from the prescheduled

amount to an amount the arrestee is able to pay, then the decision-

maker must provide written factual findings or factual findings on the

record explaining the reason for the decision, and the County must

provide the arrestee with a formal adversarial bail review hearing

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before a County Judge. The Harris County Sheriff is therefore

authorized to decline to enforce orders requiring payment of

prescheduled bail amounts as a condition of release for said

defendants if the orders are not accompanied by a record showing that

the required individual assessment was made and an opportunity for

formal review was provided. All nonfinancial conditions of release

ordered by the Hearing Officers, including protective orders, drug

testing, alcohol intake ignition locks, or GPS monitoring, will remain

in effect.

• The purpose of this requirement is to provide timely protection for the

state-created liberty interest in being bailable by sufficient sureties

and to prevent the automatic imposition of prescheduled bail amounts

without an adequate process for ensuring that there is individualized

consideration of whether another amount or condition provides

sufficient sureties.

• To enforce the 48-hour timeline, the County must make a weekly

report to the district court of misdemeanor defendants identified

above for whom a timely individual assessment has not been held.

The County must also notify the defendant’s counsel and/or next of

kin of the delay. A pattern of delays might warrant further relief from

the district court. Because the court recognizes that the County might

need additional time to comply with this requirement, the County

may propose a reasonable timeline for doing so.

• The purpose of this requirement is to give timely protection to the

state-created liberty interest in being bailable by sufficient sureties

by enforcing federal standards indicating that 48 hours is a

reasonable timeframe for completing the administrative incidents to

arrest. The 48-hour requirement is intended to address the endemic

problem of misdemeanor arrestees being detained until case

disposition and pleading guilty to secure faster release from pretrial

detention.

• For misdemeanor defendants who are subject to formal holds and who

have executed an affidavit showing an inability to pay the

prescheduled financial condition of release, the Sheriff must treat the

limitations period on their holds as beginning to run the earliest of:

(1) after the probable cause hearing; or (2) 24 hours after arrest. The

purpose of this requirement is to ensure that misdemeanor

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defendants are not prevented from or delayed in addressing their

holds because they are indigent and therefore cannot pay a

prescheduled financial condition of release.

• Misdemeanor defendants who do not appear competent to execute an

affidavit may be evaluated under the procedures set out in the Texas

Code of Criminal Procedure Article 16.22. If competence is found, the

misdemeanor defendant is covered by the relief the court orders, with

the exception that the 48-hour period begins to run from the finding

of competence rather than from the time of arrest. As under Article

16.22, nothing in this order prevents the misdemeanor arrestee from

being released on secured bail or unsecured personal bond pending

the evaluation.

VI.

For the forgoing reasons, we AFFIRM the district court’s findings of fact.

We AFFIRM its conclusions of law except its conclusion that the County Sheriff

qualifies as a municipal policymaker under § 1983 and its determination of the

specific procedural protections owed under procedural due process. On those

issues, we REVERSE the district court’s conclusions. Accordingly, we VACATE

the preliminary injunction as overbroad and REMAND to the district court to

craft a revised injunction—one that is narrowly tailored to cure the

constitutional deficiencies the district court properly identified. But we also

STAY the vacatur pending implementation of the revised injunction, so as to

maintain a stable status quo.

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