Daves v. Dallas County

Case: 18-11368 Document: 00516696104 Page: 1 Date Filed: 03/31/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

March 31, 2023

No. 18-11368

Lyle W. Cayce

Clerk

Shannon Daves; Shakena Walston; Erriyah Banks;

Destinee Tovar; Patroba Michieka; James Thompson, On

Behalf of Themselves and All Others Similarly

Situated; Faith in Texas; Texas Organizing Project

Education Fund,

Plaintiffs—Appellants Cross-Appellees,

versus

Dallas County, Texas; Ernest White, 194th; Hector

Garza, 195th; Raquel Jones, 203rd; Tammy Kemp, 204th;

Jennifer Bennett, 265th; Amber Givens-Davis, 282nd;

Lela Mays, 283rd; Stephanie Mitchell, 291st; Brandon

Birmingham, 292nd; Tracy Holmes, 363rd; Tina Yoo

Clinton, Number 1; Nancy Kennedy, Number 2; Gracie

Lewis, Number 3; Dominique Collins, Number 4; Carter

Thompson, Number 5; Jeanine Howard, Number 6; Chika

Anyiam, Number 7 Judges of Dallas County, Criminal

District Courts,

Defendants—Appellees Cross-Appellants,

Marian Brown; Terrie Mcvea; Lisa Bronchetti; Steven

Autry; Anthony Randall; Janet Lusk; Hal Turley,

Dallas County Magistrates; Dan Patterson, Number 1;

Julia Hayes, Number 2; Doug Skemp, Number 3; Nancy

Mulder, Number 4; Lisa Green, Number 5; Angela King,

Number 6; Elizabeth Crowder, Number 7; Carmen White,

Number 8; Peggy Hoffman, Number 9; Roberto Canas, Jr.,

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Number 10; Shequitta Kelly, Number 11 Judges of Dallas

County, Criminal Courts at Law,

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:18-CV-154

Before Richman, Chief Judge, and Jones, Smith, Stewart,

Dennis, Elrod, Southwick, Haynes, Graves, Higginson,

Willett, Ho, Duncan, Engelhardt, and Wilson, Circuit

Judges.*

Edith H. Jones, Circuit Judge:

In a second round of en banc review, we conclude that this case, whose

aim was to revise by federal decree the Texas state court procedures for

felony and misdemeanor pretrial bail, should never have been brought in

federal court. We hold that a string of consistent Supreme Court authority

commencing with Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971),

requires federal courts to abstain from revising state bail bond procedures on

behalf of those being criminally prosecuted, when state procedures allow the

accused adequate opportunities to raise their federal claims.

Recent years saw a surge of interest in criminal procedure reform.

Lawsuits have been filed nationwide seeking to mitigate state and local bail

bonding requirements.1 One such suit resulted in a decision by this court that

*

Judge Ho concurs in the court’s ruling on abstention only, and not in the court’s

ruling on mootness. Judge Oldham is recused and did not participate. Judge Douglas was

not a member of the court when this case was submitted to the court en banc and did not

participate in this decision.

1

See, e.g., H.C. v. Chudzik, No. 5:22-cv-1588 (E.D. Pa. Apr. 25, 2022), ECF No. 1;

The Bail Project, Inc. v. Comm’r, Ind. Dep’t of Ins., No. 1:22-cv-862 (S.D. Ind. May 4, 2022),

2

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approved broad changes to misdemeanor bail bond procedures in Harris

County, Texas. Compare ODonnell v. Harris Cnty., 882 F.3d 528 (5th Cir.

2018), withdrawn and superseded on panel reh’g, 892 F.3d 147 (5th Cir. 2018)

(ODonnell I), with ODonnell v. Goodhart, 900 F.3d 220 (5th Cir. 2018)

(ODonnell II) (trimming terms of original remedial order). This case

followed in its wake. But ODonnell’s analysis was debatable, though it bound

the district court and our initial three-judge appellate panel in regard to

Dallas County procedures. See Daves v. Dallas Cnty., 984 F.3d 381 (5th Cir.

2020), vacated, 988 F.3d 834 (5th Cir. 2021). The panel decision here

affirmed in part preliminary injunctive relief mirroring that in ODonnell and

remanded for further proceedings. Id. at 388, 414.

In due course, our court voted to reconsider this case en banc. Daves

v. Dallas Cnty., 988 F.3d 834 (5th Cir. 2021). While the en banc case was

pending, the Texas legislature passed a new law (Act of August 31, 2021, 87th

Tex. Leg. 2d C.S., S.B. 6) (“S.B. 6”) that adopted some of ODonnell’s

innovations while tightening other bonding requirements. With this complex

backdrop, the en banc court resolved several issues raised by ODonnell,2

deferred deciding others,3 and remanded for the district court to consider two

issues: whether the case has been mooted by the new law’s taking effect, and

ECF No. 1; Allison v. Allen, No. 1:19-cv-01126 (M.D.N.C. Nov. 12, 2019), ECF No. 1; Ross

v. Blount, No. 2:19-cv-11076 (E.D. Mich. Apr. 14, 2019), ECF No. 1.

2

We held that district and county court at law judges are protected by state

sovereign immunity in promulgating bail bond schedules and that plaintiffs lacked standing

to sue them on that basis. ODonnell I’s contrary conclusions regarding county court at law

judges were overruled. Daves v. Dallas Cnty., 22 F.4th 522, 540, 544 (5th Cir. 2022)

(en banc).

3

The en banc decision did not resolve whether the Dallas County Sheriff and

Dallas County are proper defendants, and it clarified that because only declaratory relief

was issued by the district court against the magistrate judges, they did not appeal, and we

issued no decision as to them. Id. at 545.

3

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whether the federal courts should have abstained pursuant to the body of

caselaw rooted in Younger v. Harris.4 The district court then declared moot

the plaintiffs’ challenge to Dallas County bail procedures, but it concluded

the federal court should not have abstained.

This opinion completes our en banc review by addressing the district

court’s decisions on the remanded questions. Although the parties’ dispute

has become moot in light of S.B. 6, the antecedent question of federal

jurisdiction remains.

BACKGROUND

A complete factual and procedural background appears in the initial

en banc decision in this case. Daves v. Dallas Cnty., 22 F.4th 522, 529–31

(5th Cir. 2022). A few relevant highlights may be recapitulated.

The plaintiffs, proceeding as a class, comprised people who had been charged

with misdemeanor and felony crimes in Dallas County and who were

allegedly unconstitutionally incarcerated pretrial solely because they were

financially unable to post required bail. Bail decisions, they claimed, were

made via an offense-based schedule promulgated by the district and county

court at law judges.5 The schedule allegedly prevented consideration of the

defendants’ ability to pay, and it was rigidly enforced by the magistrate judges

who initially make these decisions. The County Sheriff correspondingly

violated arrestees’ constitutional rights by jailing them for failure to make

4

The defendants have preserved the issue of abstention throughout this litigation.

5

It bears noting that Texas law at the time this suit was filed plainly required bail

decisions to rest on a number of factors, including, inter alia, the nature of the offense, the

“future safety of a victim,” the detainee’s “ability to make bail,” and a proscription against

using bail “to make it an instrument of oppression.” Tex. Code Crim. P. art. 17.15

(1993).

4

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bail. Thus, the plaintiffs were all subject to ongoing state criminal

proceedings.

Were the federal court to agree that pretrial incarceration despite

inability to pay for bail is unconstitutional, the plaintiffs proposed a variety of

fundamental alterations in the pretrial decisional process, including but not

limited to obtaining detailed financial assessments from each arrestee, strict

time limits for decisionmaking, and the possibility of immediate appeal.

As had happened in the ODonnell case, the plaintiffs sought the appointment

of a federal monitor over the Dallas County criminal justice system.

Among other things, the monitor would receive periodic reports and be

empowered to respond to any individual defendant or his counsel or family

member who believed at any time that the federally installed bail procedures

were not being followed. The district court held a hearing, found the local

processes unconstitutional on the above-stated basis,6 and ordered a

preliminary injunction essentially in accord with plaintiffs’ prescription.

After this court’s en banc decision winnowed nonjusticiable claims

and remanded, there remained potential liability of the Dallas magistrates

(for declaratory relief only pursuant to Section 1983(e)), the Sheriff, and the

County. The district court thoroughly considered the two issues we

remanded. The district court now declared that the controversy had become

moot by the passage and December 2, 2021, effective date of S.B. 6.

Substantial changes to statewide bail bond procedures had been wrought,

which directly affected the plaintiffs’ claims.7 Overall, the court found, it

6

The court upheld plaintiffs’ procedural due process and equal protection claims

but denied claims sounding in substantive due process.

7

Among other things, S.B. 6 requires “individualized consideration of all

circumstances” and all statutory factors within 48 hours of arrest. Tex. Code Crim. P.

art. 17.028(a). The magistrate must “impose the least restrictive conditions” necessary to

“reasonably ensure the defendant’s appearance in court” considering the safety of “the

5

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could not assess the impact of the statutory changes based on a superseded

legal regime and proceedings that had occurred years earlier. S.B. 6 had

mooted the controversy.

With respect to Younger abstention, the court focused on the

doctrine’s requirement that a plaintiff must have an “adequate opportunity”

in the state proceedings to raise his constitutional challenges. The court

relied on a statement in Gibson v. Berryhill that “[Younger] naturally

presupposes the opportunity to raise and have timely decided by a competent

state tribunal the federal issues involved.” 411 U.S. 564, 577, 93 S. Ct. 1689,

1697 (1973). The district court deduced, “for an alternative mechanism to

press federal claims in state court to qualify as adequate, it must be timely.”

(emphasis original). But state habeas proceedings to challenge bail amounts

would be “inadequate, i.e., too slow.” The court therefore declined to

abstain based on Younger and its progeny.

Having retained jurisdiction, the en banc court obtained supplemental

briefing from the parties before re-evaluating the remanded issues. Plaintiffs

continue to contend that Dallas bail bond hearings fall short under the

Constitution because there is no requirement of adversary procedures to

determine bail, no requirement of factfindings on the record that pretrial

detention is necessary to satisfy a compelling state interest, and no

presumption against cash bail. The district court’s decision on abstention is

discretionary, but we review de novo whether the prerequisites of abstention

community, law enforcement, and the victim of the alleged offense.” Id. art. 17.028(b).

A financial affidavit is required to be provided for each arrestee charged with an offense

punishable as a Class B misdemeanor or higher and who is unable to provide the amount of

bail required by a schedule or judicial order. Id. art. 17.028(f). Any defendant who

completes a financial affidavit and cannot pay the amount of bail is entitled to a “prompt

review . . . on the bail amount.” Id. art. 17.028(h). If the magistrate does not lower the bail

for that defendant, the magistrate must make written factfindings. Id.

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have been satisfied. See Tex. Ass’n of Bus. v. Earle, 388 F.3d 515, 518 (5th Cir.

2004). A ruling on mootness is reviewed de novo.

DISCUSSION

1. Abstention

Despite the possibility of mootness, this court has discretion to

determine whether a federal court should have proceeded to the merits of

plaintiffs’ bail “reform” lawsuit in the first place. Justice Ginsburg

succinctly restated the applicable principles in Sinochem International v.

Malaysia International Shipping, 549 U.S. 422, 430–31, 127 S. Ct. 1184, 1191

(2007). To paraphrase her writing, a federal court may not rule on the merits

of a case without first determining its jurisdiction, 8 but there is no mandatory

“sequencing of jurisdictional issues,”9 and a federal court has leeway “to

choose among threshold grounds for denying audience to a case on the

merits.” Id. at 431, 127 S. Ct. at 1191 (quoting Ruhrgas AG v. Marathon Oil

Co., 526 U.S. 574, 585, 119 S. Ct. 1563, 1570 (1999)). As Sinochem further

illustrated, “a federal court [need not] decide whether the parties present an

Article III case or controversy before abstaining under Younger v. Harris.”

Id.

The imperative of reconsidering abstention here is clear. A number

of cases in this circuit and others are asking federal courts to judicially order

and enforce state court bail reforms. Several federal courts, including the

ODonnell I court, have rejected abstention without exhaustive consideration.

8

See Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 93–95, 118 S. Ct. 1003,

1012–13 (1998).

9

Sinochem Int’l v. Malaysia Int’l Shipping, 549 U.S. 422, 431, 127 S. Ct. 1184, 1191

(2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S. Ct. 1563, 1570

(1999)).

7

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But if abstention is mandated by Younger’s rationale, much time and money,

as well as judicial resources, will be saved on litigation in federal court.

The complexity of handling claims for institutional state bail reform in

federal court is well demonstrated by the justiciability issues we confronted,

and avoided, in the initial en banc proceeding. Friction exists with state

criminal courts where, overlooking or misinterpreting abstention, federal

courts have forced bail bond changes.10 Finally, the ultimate impact of

abstention does not deprive plaintiffs of a remedy. If required by Younger,

abstention means they must pursue their claims, or whatever remains of them

after S.B. 6, in state courts, with the possibility of final oversight by the U.S.

Supreme Court. Our Federalism, the guiding light behind Younger, seems to

have been forgotten, especially in regard to this species of direct federal

intervention into ongoing state criminal proceedings that already provide an

opportunity to raise constitutional challenges.

To counteract judicial amnesia, it is necessary to recall the origin of

the Younger abstention doctrine. By the early 1970s, federal courts were

awash (by the standards of that day)11 in adjudicating a heady mix of newly

created constitutional rights. Naming just a few subjects of litigation, courts

were reviewing collateral attacks on state criminal convictions, adjudicating

the constitutionality of state jail and prison conditions, and addressing due

process questions that arose in every public setting from elementary school

discipline and welfare termination to employee disputes. Ideas of deference

10

In the ODonnell case, for instance, the federal monitor for Harris County has

determined “errors” made by judicial officers in setting bail and identified “violations” of

the federal consent decree. See, e.g., Fourth Six-Month Monitor Report, ODonnell v.

Harris County, 4:16-cv-1414 (S.D. Tex. Mar. 3, 2022), ECF No. 732-1 at 15–18.

11

See, e.g., Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal

Judgments, 38 U. Chi. L. Rev. 142 (1970); Henry J. Friendly, Federal

Jurisdiction: A General View 15–54 (1973).

8

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to state governmental systems or state courts seemed to have been

overshadowed by the Supreme Court’s enthusiasm for effectuating novel

notions of social justice and personal rights.

Most pertinent here, federal courts had begun hearing a variety of

First Amendment challenges to various state criminal laws. Their direct

incursions into state criminal proceedings were spurred by the Supreme

Court’s decision in Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116 (1965),

where the Court held that an injunction could properly be issued against

enforcement of certain state criminal statutes in the face of ongoing

prosecutorial actions.

Six years later, however, the Court signaled a major retreat from

Dombrowski in Younger v. Harris, an 8-1 decision with the principal opinion

by Justice Black.12 Younger rejected two notions: that adverse impacts on

First Amendment rights alone could justify federal intervention, and that the

ordinary pains of undertaking a defense against criminal charges could

constitute sufficiently irreparable injury for equitable relief. 410 U.S. at 49,

53, 91 S. Ct. at 753, 755. Thus, as succinctly stated in a companion case,

Younger held that “a federal court should not enjoin a state criminal

prosecution begun prior to the institution of the federal suit except in very

unusual situations, where necessary to prevent immediate irreparable

injury.” Samuels v. Mackell, 401 U.S. 66, 69, 91 S. Ct. 764, 766 (1971).

Justice Black’s opinion traces a “longstanding public policy against

federal interference with state court proceedings,” based in part on “the

basic doctrine of equity jurisprudence that courts of equity should not act,

12

Technically, Younger was decided along with five companion cases: Samuels v.

Mackell, 401 U.S. 66, 91 S. Ct. 764 (1971); Boyle v. Landry, 401 U.S. 77, 91 S. Ct. 758 (1971);

Perez v. Ledesma, 401 U.S. 82, 91 S. Ct. 674 (1971); Dyson v. Stein, 401 U.S. 200, 91 S. Ct.

769 (1971); Byrne v. Karalexis, 401 U.S. 216, 91 S. Ct. 777 (1971).

9

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and particularly should not act to restrain a criminal prosecution, when the

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

injury if denied equitable relief.” Younger, 401 U.S. at 43–44, 91 S. Ct.

at 750.13 The Court’s opinion relied heavily for this proposition on Fenner v.

Boykin, 271 U.S. 240, 244, 46 S. Ct. 492, 493 (1926) (“The accused should

first set up and rely upon his defense in the state courts, even though this

involves a challenge of the validity of some statute, unless it plainly appears

that this course would not afford adequate protection.”). Citing Fenner in an

earlier case, Justice Frankfurter emphasized that “[f]ew public interests have

a higher claim upon the discretion of a federal chancellor than the avoidance

of needless friction with state policies . . . [relating to] . . . the enforcement of

the criminal law.” R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500,

61 S. Ct. 643, 645 (1941) (citations omitted). The legacy of federal court

noninterference in equity with state proceedings is over a century old.

But there is also a deeper reason for restraining federal courts acting

in equity from getting involved in state criminal prosecutions. Justice Black

explained

the notion of “comity,” that is, a proper respect for state

functions, a recognition of the fact that the entire country is

made up of a Union of separate state governments, and a

continuance of the belief that the National Government will

fare best if the States and their institutions are left free to

perform their separate functions in their separate ways.

13

The Court distinguished cases filed under the doctrine of Ex parte Young,

209 U.S. 123, 28 S. Ct. 441 (1908), because, “when absolutely necessary for the protection

of constitutional rights,” “under extraordinary circumstances, where the danger of

irreparable loss is both great and immediate,” federal courts may enjoin potential state

prosecutions. Younger, 401 U.S. at 45, 91 S. Ct. at 751 (quoting Fenner v. Boykin, 271 U.S.

240, 243–44, 46 S. Ct. 492, 493 (1926)).

10

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Id. at 44, 91 S. Ct. at 750. This arrangement he deemed “Our Federalism,”

with roots in the profound debates and compromises that shaped the

Constitution. Id.

Controversial as Younger has seemed to those steeped in the judicial

activism of the last half century,14 the Supreme Court, far from disavowing

or materially narrowing the doctrine, repeatedly expanded its reach in the

succeeding cases.15 The doctrine remains controlling today, with particular

application to interventions into state criminal procedures. Younger requires

federal court abstention when three criteria are met: “(1) the federal

proceeding would interfere with an ‘ongoing state judicial proceeding’;

(2) the state has an important interest in regulating the subject matter of the

claim; and (3) the plaintiff has ‘an adequate opportunity in the state

proceedings to raise constitutional challenges.’” Bice v. La. Pub. Def. Bd.,

14

“There is no more controversial, or more quickly changing, doctrine in the

federal courts today than the doctrine of ‘Our Federalism,’ which teaches that federal

courts must refrain from hearing constitutional challenges to state action under certain

circumstances in which federal action is regarded as an improper intrusion on the right of

a state to enforce its laws in its own courts.” 17B Charles Alan Wright, Arthur

R. Miller & Vikram D. Amar, Federal Practice & Procedure § 4251 (3d

ed.) (April 2022 Update) (footnotes omitted).

15

See, e.g., Samuels, 401 U.S. 66, 91 S. Ct. 764 (extending Younger, in the state

criminal prosecution context, to actions seeking declaratory relief); Huffman v. Pursue,

Ltd., 420 U.S. 592, 95 S. Ct. 1200 (1975) (extending Younger to civil proceedings in which

important state interests are involved); Kugler v. Helfant, 421 U.S. 117, 95 S. Ct. 1524

(1975) (prohibiting federal court intervention in state criminal proceedings to suppress

illegally obtained evidence); Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211 (1977) (extending

Younger to state civil contempt procedures); Trainor v. Hernandez, 431 U.S. 434, 97 S. Ct.

1911 (1977) (extending Younger to state civil enforcement proceedings); Moore v. Sims,

442 U.S. 415, 99 S. Ct. 2371 (1979) (extending Younger to state child welfare proceedings);

Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 102 S. Ct. 2515

(1982) (Younger applied to attorney discipline proceeding); Pennzoil Co. v. Texaco, Inc.,

481 U.S. 1, 107 S. Ct. 1519 (1987) (extending Younger to prevent federal court interference

with the posting of bond pending appeal).

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677 F.3d 712, 716 (5th Cir. 2012) (quoting Middlesex Cnty. Ethics Comm. v.

Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S. Ct. 2515, 2521 (1982)).16

Rather than expound on unrelated nuances of Younger, we principally

rely on the Supreme Court’s decision in O’Shea v. Littleton, 414 U.S. 488,

94 S. Ct. 669 (1974), which is closely on point.17 In O’Shea, the Court held

that a group of plaintiffs had no standing to challenge various Cairo, Illinois

criminal practices, notably including the imposition of excessive bail, which

were alleged to be racially discriminatory and discriminatory against

indigents. Id. at 498, 94 S. Ct. at 677. The Court alternatively held that even

if some plaintiffs had standing, the principles of Younger mandated that no

federal equitable relief could be granted in the absence of irreparable injury

16

Further, although none is applicable here, there are three exceptions to Younger:

“(1) the state court proceeding was brought in bad faith or with the purpose of harassing

the federal plaintiff, (2) the state statute is ‘flagrantly and patently violative of express

constitutional prohibitions in every clause, sentence, and paragraph, and in whatever

manner and against whomever an effort might be made to apply it,’ or (3) application of the

doctrine was waived.” Tex. Ass’n of Bus., 388 F.3d at 519 (quoting Younger, 401 U.S. at

53–54, 91 S. Ct. at 755).

17

Judge Southwick’s solo opinion purports to be agnostic on whether Younger

abstention ought to apply to constitutional challenges to bail bond procedures, which he

considers somehow severable from a state’s overall criminal process. In light of that

threshold ambiguity, it seems unnecessary to discuss his lengthy arguendo reasoning as to

why Younger should not apply in this case. Suffice it to say, first, that categorically

excluding from the ambit of Younger abstention (other abstention prerequisites being

present) constitutional claims involving bits and pieces of the criminal process, e.g., bail

bonding or public defenders appointments, is fundamentally at odds with comity and

federalism. In addition, the remainder of this opinion explains why Judge Southwick’s

arguendo assertions denying application of Younger here are in error: A federal equitable

remedy for allegedly unconstitutional bail bond procedures would seriously interfere with

ongoing criminal proceedings. And requiring “timeliness” of bail bond review to forestall

abstention is not supported by any Younger precedent, is contradicted by O’Shea and other

precedent, and is contraindicated by a multitude of available, adequate Texas procedures.

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“both great and immediate.” Id. at 499, 94 S. Ct. at 678 (quoting Younger,

401 U.S. at 46, 91 S. Ct. at 751).18

In O’Shea, “[t]he Court of Appeals disclaimed any intention of

requiring the District Court to sit in constant day-to-day supervision of these

judicial officers, but the ‘periodic reporting’ system it thought might be

warranted would constitute a form of monitoring of the operation of state

court functions that is antipathetic to established principles of comity.” Id.

at 501, 94 S. Ct. at 679 (footnote omitted). The Supreme Court also pointed

out that any person charged with crime, who became dissatisfied with the

officials’ compliance with a federal injunction, would have recourse to

federal court seeking compliance or even contempt. Enforcement of the

injunction would mark “a major continuing intrusion . . . into the daily

conduct of state criminal proceedings.” Id. at 502. Such extensive federal

oversight would constitute “an ongoing federal audit of state criminal

proceedings . . . indirectly accomplish[ing] the kind of interference that

Younger v. Harris . . . and related cases sought to prevent.” Id. at 500,

94 S. Ct. at 678.19

The Supreme Court coupled its concerns about the interference with

ongoing criminal proceedings with its description of various adequate legal

remedies available to the plaintiff class members in the course of criminal

defense. Id. at 502, 94 S. Ct. at 679. These included, inter alia, direct or

postconviction collateral review; disciplinary proceedings against judges; and

18

Note the procedural similarity between O’Shea and this case: standing was at

issue as well as Younger abstention.

19

Judge Southwick avers that the proposed injunction in O’Shea seems far broader

than whatever relief might be ordered in this case. His surmise is contradicted by the actual

injunction ordered in ODonnell I and copied by the district court here, and by the plaintiffs’

continued insistence on monitoring the details of bail bond procedures, i.e., adversary

hearings, written factfindings, and the enforcement of a presumption against cash bail.

13

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federal habeas relief. The Court did not engage in extensive factbound

review of the “adequacy” or “timeliness” of state procedures in practice.

Only a few years after O’Shea, this court found it controlling when

faced with a Galveston County, Texas prisoner’s complaint on behalf of

himself and others against a bevy of local pretrial practices, including

allegedly excessive bail determinations made against indigent defendants.

See Tarter v. Hury, 646 F.2d 1010, 1013 (5th Cir. Unit A June 1981)

(discussing O’Shea). This court affirmed the dismissal of the plaintiff’s

complaint. The court held that “[b]ecause O’Shea involved a challenge to

the imposition of excessive bail, it is conclusive as to Tarter’s claim for

equitable relief based on that ground.” Id. (footnote omitted). Just before

stating this conclusion, the panel had recapitulated that the Supreme Court

refused to consider declaratory or injunctive relief in O’Shea that would

“require excessive federal interference in the operation of state criminal

courts.” Id.20

Together, O’Shea and Tarter supply compelling precedent for

withholding federal adjudication of the bail complaint in both ODonnell I and

Daves. Yet ODonnell I held these decisions inapposite for two reasons.

First, after listing the three prerequisites for Younger abstention,21 the court

20

In Judge Southwick’s view, the en banc decision in Pugh v. Rainwater, 572 F.2d

1053 (5th Cir. 1978) (en banc), is our court’s “last word” on Younger although it does not

mention Younger. Besides the obvious paradox, which probably arises from the litigation

relationship between Gerstein and Pugh, that view is counterintuitive because two of the

judges who sat on the Pugh en banc court joined in Tarter. It is also irrelevant, because

Pugh, if it represented a decision not to abstain, was superseded by O’Shea, which bound the

Tarter panel.

21

The plaintiffs in ODonnell I conceded that the second prong of Younger is met.

Indeed, states have a vital interest in regulating their pretrial criminal procedures including

assessment of bail bonds. See Pugh, 572 F.2d at 1056 (holding that a state has “a compelling

interest in assuring the presence at trial of persons charged with crime”); see also Stack v.

Boyle, 342 U.S. 1,4, 72 S. Ct. 1, 3 (1951) (“The right to release before trial is conditioned

14

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held the third prong—adequate opportunity to raise constitutional questions

in the state proceedings—was unsatisfied due to the Supreme Court’s

decision in Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854 (1975). Second,

dispatching Younger’s first prong, ODonnell I held that the abstention

principles of comity and federalism were not implicated because “[t]he

injunction sought by ODonnell seeks to impose ‘nondiscretionary procedural

safeguard[s],’ . . . [and] will not require federal intrusion into pre-trial

decisions on a case-by-case basis.” ODonnell I, 892 F.3d at 156 (citing Tarter,

646 F.2d at 1013–14; O’Shea, 414 U.S. at 499–502, 94 S Ct. at 677–79).

Both of these reasons are incorrect.

Gerstein at first blush appears inconsistent with Younger abstention

because the Supreme Court there upheld a federal court injunction requiring

a judicial hearing in Florida courts on probable cause for pretrial detention.

Gerstein, 420 U.S. at 125, 95 S. Ct. 868–69. And in footnote nine, the Court’s

opinion states that abstention was inappropriate.22 The ODonnell I panel

relied on this footnote almost exclusively. ODonnell I interpreted this

footnote to find Younger inapt because “the Supreme Court has already

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

upon the accused’s giving adequate assurance that he will stand trial and submit to sentence

if found guilty.”).

22

Gerstein’s footnote nine states, “The District Court correctly held that

respondents’ claim for relief was not barred by the equitable restrictions on federal

intervention in state prosecutions, Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971). The

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 prosecution. The order to hold preliminary hearings could not prejudice the

conduct of the trial on the merits.” Gerstein, 420 U.S. at 108 n.9, 95 S. Ct. at 860 n.9 (citing

Conover v. Montemuro, 477 F.2d 1073, 1082 (3d Cir. 1972); Perez, 401 U.S. 82, 91 S. Ct. 674;

Stefanelli v. Minard, 342 U.S. 117, 72 S. Ct. 118 (1951)).

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

state court.” ODonnell I, 892 F.3d at 156 (emphasis added).

But Gerstein is distinguishable on a number of grounds. As the Second

Circuit noted, “it is elementary that what the Court said must be viewed in

the light of the factual and legal setting the Court encountered.” Wallace v.

Kern, 520 F.2d 400, 406 (2d Cir. 1975). The Wallace court explained in detail

why, under principles established in Younger and its progeny, Gerstein did not

authorize a New York federal district court to require an evidentiary hearing

on bail determinations within a certain period of time. See id. at 404–08.

Wallace accordingly reversed the lower court’s injunction. Like Tarter,

Wallace is directly on point.

To explain Younger, the Wallace court regarded as insupportable

“[t]he proposition that the principles underlying Younger are applicable only

where the federal court is seeking to enjoin a pending state criminal

prosecution.” Id. at 405. Observing that the Supreme Court had extended

Younger to civil cases in which the state has a “particular interest,” Wallace

reasoned that it would be anomalous to require abstention in such civil cases

“but not [in] a bail application proceeding in which the people of the State of

New York have a most profound interest.” Id.23 The court moved on to

discuss O’Shea’s rebuke to the lower courts against conducting an “ongoing

federal audit of state criminal proceedings.” Id. at 406 (quoting O’Shea,

414 U.S. at 500, 94 S. Ct. at 678). The Wallace court commented:

This is precisely the mischief created by the order below.

Having provided for new bail hearing procedures which fix the

time of, the nature of and even the burden of proof in the

23

Further, “[t]he assurance that a defendant who has been indicted for a crime be

present to stand his state trial and be sentenced if convicted is patently of prime concern to

the state.” Id.

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evidentiary hearings, the order would permit a pre-trial

detainee who claimed that the order was not complied with to

proceed to the federal court for interpretations thereof. This

would constitute not only an interference in state bail hearing

procedures, but also the kind of continuing surveillance found

to be objectionable in O’Shea.24

The Wallace court further distinguished Gerstein legally and factually.

Gerstein, the court noted, is literally surrounded by other Supreme Court

decisions extending the principles of Younger abstention, two of which were

decided within a few months of Gerstein.25 Accordingly, the Wallace court

found Gerstein “clearly not decisive” due to the Supreme Court’s

explanation that in Florida, “the federal plaintiffs there had no right to

institute state habeas corpus proceedings . . . and that their only other state

remedies were a preliminary hearing which could take place only after 30 days

or an application at an arraignment, which was often delayed a month or more

after arrest.” Id. (emphasis added). The Wallace court stated, “[w]e do not

consider this discussion feckless.” Id. New York law, in contrast, was not

bereft of remedies allowing defendants timely to challenge bail

determinations. Id. at 407. Thus, Younger controlled, and the Wallace court

reversed injunctive relief that would have compelled federal oversight of

New York state bail procedures. Wallace remains good law in the Second

Circuit. See Kaufman v. Kaye, 466 F.3d 83, 86 (2d Cir. 2006).

Not only did ODonnell I misperceive the context and limited

implications of Gerstein, but the court also strayed far off the mark in asserting

Younger abstention is avoidable if the state court review procedures are not

“properly” addressing certain constitutional claims. As the Supreme Court

24

Id. at 406.

25

See Huffman, 420 U.S. 592, 95 S. Ct. 1200; Schlesinger v. Councilman, 420 U.S.

738, 95 S. Ct. 1300 (1975).

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later explained, “the teaching of Gerstein was that the federal plaintiff must

have an opportunity to press his claim in the state courts.” Moore v. Sims,

442 U.S. 415, 432, 99 S. Ct. 2371, 2381 (1979) (citing Juidice v. Vail, 430 U.S.

327, 336–37, 97 S. Ct. 1211, 1217–18 (1977)). Juidice had applied Younger

where “it is abundantly clear that appellees had an opportunity to present

their federal claims in the state proceedings. No more is required to invoke

Younger abstention. . . . [F]ailure to avail themselves of such opportunities

does not mean that the state procedures were inadequate.” Juidice, 430 U.S.

at 337, 97 S. Ct. at 1218 (emphases added).

As noted, Gerstein addressed detention without a probable cause

finding and without any avenue for judicial review.26 All that Younger and its

progeny mandate, however, is an opportunity to raise federal claims in the

course of state proceedings. Texas law expressly provides mechanisms for

challenging excessive bail. A person may move for bond reduction, as one of

the named plaintiffs in this case successfully did. See Tex. Code

Crim. P. art. 17.09(3). Further, “[t]he accused may at any time after being

confined request a magistrate to review the written statements of the

witnesses for the State as well as all other evidence available at that time in

determining the amount of bail.” Id. art. 17.33. In addition, “[t]he accused

in any felony case shall have the right to an examining trial before indictment

in the county having jurisdiction of the offense . . . at which time the

magistrate at the hearing shall determine the amount or sufficiency of bail, if

a bailable case.” Id. art. 16.01. And there appears to be no procedural bar to

filing a motion for reconsideration of any of these rulings.

A petition for habeas corpus is also available. “Where a person has

26

In Middlesex County, the Court stated that in Gerstein, “the issue of the legality

of a pretrial detention could not be raised in defense of a criminal prosecution.” 457 U.S. at

436 n.14, 102 S. Ct. at 2523 n. 14 (emphasis added).

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been committed to custody for failing to enter into bond, he is entitled to the

writ of habeas corpus, if it be stated in the petition that there was no sufficient

cause for requiring bail, or that the bail required is excessive.” Id. art. 11.24.

The remedy is release or reduction in bail. Id. This provision is no dead

letter.27 Texas courts have shown themselves capable of reviewing bail

determinations. See, e.g., Ex parte Gomez, 2022 WL 2720459 (Tex. App.

July 14, 2022);28 Ex parte McManus, 618 S.W.3d 404, 406–09 (Tex. App.

2021) (performing a holistic analysis of an excessive bail claim, including the

ability to make bail); Ex parte Robles, 612 S.W.3d 142, 146–49 (Tex. App.

2020) (same); Ex parte Castille, No. 01-20-00639-CR, 2021 WL 126272, at

*2–6 (Tex. App. Jan. 14, 2021) (same).

Summing up why the ODonnell I court went wrong on the third

Younger prong—adequacy of state remedies—is the response offered by the

Supreme Court in Middlesex County Ethics Committee: “Minimal respect for

the state processes, of course, precludes any presumption that the state courts

will not safeguard federal constitutional rights.” 457 U.S. at 431, 102 S. Ct.

at 2521. That presumption was violated in ODonnell I’s rejection of adequate

state remedies because Texas detainees have opportunities, beyond those

27

Plaintiffs argue that because Younger’s third prong requires that there be an

adequate opportunity in the state proceedings to raise constitutional challenges, collateral

proceedings like habeas cannot, by definition, qualify as adequate. This is refuted by

O’Shea, which specifically referenced the availability of state postconviction collateral

review as constituting an adequate opportunity. 414 U.S. at 502, 94 S. Ct. at 679; see also

Tex. Ass’n of Bus., 388 F.3d at 521 (referencing mandamus as an adequate opportunity to

raise constitutional challenges).

28

Ex parte Gomez is cited by plaintiffs for the proposition that Texas habeas courts

will not review “procedural issues” related to bail. 2022 WL 2720459, at *5–6 (considering

the procedural issue of the appointment of counsel at a bail hearing). But in that habeas

case, the court adjudicated a defendant’s challenge to his bail, which entailed review of the

relevant factors, including ability to pay. That constitutes an adequate opportunity.

See O’Shea, 414 U.S. at 502, 94 S. Ct. at 679.

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deemed adequate in O’Shea, to raise their federal claims.

Moving to the first Younger factor—whether equitable relief by a

federal court would interfere with ongoing state proceedings—the

ODonnell I court concluded that the supervisory bail injunction at issue did

not implicate concerns about comity and federalism because it “will not

require federal intrusion into pre-trial decisions on a case-by-case basis.”

ODonnell I, 892 F.3d at 156 (comparing with O’Shea, 414 U.S. at 499–502,

94 S. Ct. at 678–79). But the injunction issued in ODonnell I, and mirrored

by Daves, flatly contradicts the very language in O’Shea. The ODonnell I

“model injunction” expressly mandated the type of “periodic reporting”

scheme the Supreme Court precluded. Compare id. at 164–66 (“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.”), with O’Shea, 414 U.S. at 501,

94 S. Ct. at 679 (“‘periodic reporting’ . . . would constitute a form of

monitoring of the operation of state court functions that is antipathetic to

established principles of comity”).29 And it opens the federal courts any time

an arrestee cries foul. ODonnell I, 892 F.3d at 165–66. Even before this court

reconsidered ODonnell I’s rulings en banc, we found it necessary to

disapprove several of that decision’s overreaching injunctive provisions. See

ODonnell II, 900 F.3d at 224–28 (overruling provisions that would have freed

defendants for technical noncompliance with federal orders).

In addition to these requirements, considerable mischief remains.30

29

The district court in Daves implemented the same reporting requirement

authorized in ODonnell I.

30

In fact, in their supplemental briefing, plaintiffs’ claims for relief including on-

the-record hearings and detailed factual opinions concerning bail determinations reify how

far federal courts would have to intrude into daily magistrate practices.

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To paraphrase Wallace, “[t]his is precisely the mischief created by the order

below . . . . [T]he order would permit a pre-trial detainee who claimed that

the order was not complied with to proceed to the federal court for

interpretations thereof.” 520 F.2d at 406. Such extensive federal oversight

constitutes “an ongoing federal audit of state criminal proceedings . . .

indirectly accomplish[ing] the kind of interference that Younger v. Harris . . .

and related cases sought to prevent.” O’Shea, 414 U.S. at 500, 94 S. Ct. at

678.

For all of these reasons, we hold that pursuant to Younger, O’Shea,

Tarter, and Wallace, neither ODonnell I nor this case should have been

adjudicated in federal court. We overrule ODonnell I’s holding against

abstention.31 The injunctions issued in Houston and Dallas plainly show

federal court involvement to the point of ongoing interference and “audit”

of state criminal procedures. Further, in stark contrast to Gerstein, Texas

courts are neither unable nor unwilling to reconsider bail determinations

under the proper circumstances, thus providing state court detainees the

chance to raise federal claims without the need to come to federal court.

The availability of state court remedies counsels that federal courts may not

intervene under equity jurisprudence to decide these disputes. 32

Plaintiffs and the district court raise objections to the requirement of

Younger abstention. We address them in turn.

31

In line with Judge Southwick’s agnosticism about abstention, he does not seem

to disagree with overruling ODonnell I.

32

For those concerned that no final federal remedy is available, please recall that

the relevant Supreme Court decisions prohibiting incarceration of indigent defendants for

their inability to pay post-conviction fines arose, respectively, from direct appeal (Williams

v. Illinois, 399 U.S. 235, 90 S. Ct. 2018 (1970)) and state habeas (Tate v. Short, 401 U.S. 395,

91 S. Ct. 668 (1971)). Indeed, Tate’s ruling issued only a week after Younger itself.

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First, plaintiffs rely on decisions from other courts. The most

significant appellate court decision that stands in tension with our conclusion

is the Eleventh Circuit opinion in Walker v. City of Calhoun, 901 F.3d 1245

(11th Cir. 2018), which brushed away Younger because “[a]bstention . . . has

become disfavored in recent Supreme Court decisions.” Id. at 1254. This is

very strange. The case cited for that proposition involves state

administrative litigation, not interference in criminal proceedings. See Sprint

Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72, 134 S. Ct. 584, 588 (2013).

The Court in Sprint detracted not a whit from Younger’s ongoing force in

respect of criminal adjudication. See Sprint, 571 U.S. at 78, 134 S. Ct. at 591

(reaffirming that Younger continues to preclude “federal intrusion into

ongoing state criminal prosecutions”).33 Additionally, the Walker court

distinguished O’Shea on the basis, contrary to this case, that the injunction

sought by the Walker plaintiffs did not contemplate ongoing interference with

the prosecutorial process. Walker, 901 F.3d at 1255. Finally, because the

Walker court ended up vacating a “modest” remedial injunction (“modest”

in comparison with those imposed in ODonnell I and II and in Daves),34 it may

not have viewed Younger abstention as a decisive threshold issue.35

We disagree with some or all of the reasoning in other appellate court

33

Pace the Walker court, Wright & Miller’s long and detailed section on

Younger abstention nowhere implies that the doctrine has become “disfavored,” and the

paper supplements continue to cite cases applying Younger. See generally §§ 4251–55.

34

See Walker, 901 F.3d at 1255 (“Walker does not ask for the sort of pervasive

federal court supervision of State criminal proceedings that was at issue in O’Shea.”).

Notably, the district court injunction contained no ongoing reporting or supervisory

components. See Walker v. City of Calhoun, No. 4:15-CV-0170, 2017 WL 2794064, at *4–

5 (N.D. Ga. June 16, 2017), vacated, 901 F.3d 1245 (11th Cir. 2018).

35

A recent Eleventh Circuit decision also rejected a challenge to bail bond

procedures but of course followed Walker on Younger abstention. See Schultz v. Alabama,

42 F.4th 1298, 1312 (11th Cir. 2022).

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cases where Younger abstention was rejected, but in any event, they are

factually far afield from this one. Arevalo v. Hennessy, for example, is factually

distinguishable because the plaintiff challenging a bail determination had

fully exhausted his state remedies without success, so there remained no state

remedies available in which to raise his individual constitutional claims. See

882 F.3d 763, 767 (9th Cir. 2018). Two other cases found Younger

inapplicable where plaintiffs challenged law enforcement practices that, in

parallel with Gerstein, essentially prescribed pretrial detention without

probable cause. See Stewart v. Abraham, 275 F.3d 220, 225–26 (3d Cir. 2001)

(no abstention for “rearrest” policy implemented despite magistrates’

denials of probable cause); Fernandez v. Trias Monge, 586 F.2d 848, 851–53

(1st Cir. 1978) (rejecting abstention in the face of a law requiring juvenile

detentions without probable cause). The Sixth Circuit’s decision in Habich

v. City of Dearborn is inapposite because, as the defendant city conceded, the

plaintiff there could not assert any of her constitutional claims in the course

of a wholly distinct local administrative matter. 331 F.3d 524, 530–32 (6th

Cir. 2003). Without any available state law remedy, Younger did not apply.

Id.36

Second, the plaintiffs, the district court, and Judge Southwick fix

talismanic significance on one line in one Supreme Court case: “[Younger]

materially presupposes the opportunity to raise and have timely decided by a

competent state tribunal the federal issues involved.” Gibson, 411 U.S. at

577, 93 S. Ct. at 1697. They would infer that timeliness of state remedies is

required to prevent Younger abstention. But Gibson did not find an exception

36

Plaintiffs’ citation to DeSario v. Thomas is misleading because, despite the

court’s apparently belittling Wallace (on which we rely), the court also made clear that

Younger abstention is required where a plaintiff may avail himself of remedies in an ongoing

state criminal proceeding. 139 F.3d 80, 85, 86 n.3 (2d Cir. 1998). See also the Second

Circuit’s subsequent express approval of Wallace in Kaufman, 466 F.3d at 86.

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to Younger because of untimely state remedies. Instead, the case represents an

exception to abstention predicated on the bias of a state administrative

tribunal. In context, the quoted sentence reiterated that Younger

contemplated alternative mechanisms for raising federal claims in ongoing

state proceedings before a competent state tribunal. See id.; see also Juidice,

430 U.S. at 337, 97 S. Ct. at 1218 (“Appellees need be accorded only an

opportunity to fairly pursue their constitutional claims in the ongoing state

proceedings.” (citing Gibson)).

More to the point, neither the plaintiffs nor the district court nor

Judge Southwick cite a single case in which the alleged untimeliness of state

remedies rendered Younger abstention inapplicable. The reason for this

seems plain: Younger holds that “the cost, anxiety, and inconvenience of

having to defend against a single criminal prosecution” cannot amount to

irreparable injury. 401 U.S. at 46, 91 S. Ct. at 751. A few years after Gibson,

the Supreme Court clarified that state remedies are inadequate only where

“state law clearly bars the interposition of the constitutional claims.” Moore,

442 U.S. at 425–26, 99 S. Ct. 2379 (emphasis added); see also Pennzoil Co. v.

Texaco, Inc., 481 U.S. 1, 14, 107 S. Ct. 1519, 1528 (1987); J.B. ex rel. Hart v.

Valdez, 186 F.3d 1280, 1292 (10th Cir. 1999). Even more specifically, the

Court holds that arguments about delay and timeliness pertain not to the

adequacy of a state proceeding, but rather to “conventional claims of bad

faith,” a well-established exception to Younger abstention. Moore, 442 U.S.

at 432, 99 S. Ct. at 2382. Here, plaintiffs do not allege bad faith. And it bears

repeating that Texas state court procedures do not clearly bar the raising of

federal claims regarding bail because Texas requires that bail be set

individually in each case rather than on a mechanical, unalterable basis.

Tex. Code Crim. P. art. 17.15(a).

Plaintiffs’ broadside against all the available state remedies ultimately

rests on the incorrect assumption that each moment in erroneous pretrial

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detention is a constitutional violation. But this case does not present the

situation that arose in Gerstein, where preliminary detention could occur

without any judicial finding of probable cause and without legal recourse.

An order for cash bail accompanies a judicial determination of probable

cause, which means that the defendant has presumably violated the criminal

law. At that point, the question becomes how to balance the interests of the

defendant in being released pending trial against society’s need to enforce the

law, protect innocent citizens, and secure attendance at court proceedings.

See, e.g., Tex. Code Crim. P. art. 17.15(a). Certainly, any kind of error

in assessing excessive bail is lamentable, whether it pertains to the

defendant’s criminal history, the nature of the instant charge, the protection

of potential victims, or his ability to pay cash bail. Even more unfortunate is

the plight of a person unconstitutionally convicted who remains incarcerated

pending the outcome of appeal or postconviction remedies; yet that is

precisely what Younger held despite the “untimeliness” of the state criminal

process. The gist of Younger’s test for availability, however, lies in the fact

that errors can be rectified according to state law, not that they must be

rectified virtually immediately.

2. Mootness

The preceding discussion suffices to explain why federal courts must

abstain from invoking equity to interfere with ongoing state criminal

proceedings where plaintiffs have adequate opportunities to raise

constitutional issues. A coequal ground for dismissing this case is mootness.

The substantial changes made by the Texas legislature to procedures for

assessing bail have been outlined above. S.B. 6 was enacted after the initial

panel decision in this case and pending our en banc review. Referencing these

changes on remand from the en banc court, the district court analyzed

mootness as follows:

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There is more than one way to ensure that a bail system

upholds due process rights. Texas has chosen its way, and

Plaintiffs are not entitled to have this Court immediately

intervene to tinker with the rules that the Legislature has just

recently enacted. Accordingly, the Court holds that Plaintiffs’

request for injunctive relief should be dismissed as moot.

Accord [13C Wright & Miller], Federal Practice

and Procedure [§ 3533.6], at Supp. 73 (“A challenge to

the validity of a new enactment, however, may be deferred to

later litigation when the new enactment is amended while an

appeal is pending and the record does not support adjudication

as to the new enactment.”) (citing Am. Charities for Reas. Fund.

Reg., Inc. v. O’Bannon, 909 F.3d 329, 332–34 (10th Cir.

2018)).37

We substantially agree with the district court’s analysis and add in

support our previous en banc decision in Pugh v. Rainwater, 572 F.2d 1053

(5th Cir. 1978) (en banc). Like this case, Pugh addressed new bail legislation

in Florida enacted during the pendency of the case on appeal. A panel of the

Fifth Circuit held the new bail rules unconstitutional as “wealth-based”

“discrimination.” Pugh v. Rainwater, 557 F.2d 1189, 1198, 1201–02 (5th Cir.

1977), reversed en banc, 572 F.2d 1053 (5th Cir. 1978). The en banc court

found the new law not facially unconstitutional and dismissed the case for

mootness. The court considered plaintiffs’ arguments against the operation

of state bail procedures to be an as-applied challenge. But the evidence

supporting that claim predated the new law. Consequently, “[a]s an attack

on the Florida procedures which existed as of the time of trial, the case has

lost its character as a present, live controversy and is therefore moot.”

37

The Tenth Circuit opinion states: “The law materially changed, fundamentally

altering the issues that had been presented in district court. This change in the law renders

the appeal moot.” O’Bannon, 909 F.3d at 332–34.

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Pugh, 572 F.2d at 1058.

We are not bound by Pugh, but the resolution of that identical dispute

is compelling. To rule on the status of S.B. 6 and its procedures at this point,

based on evidence largely generated during proceedings that occurred pre-

amendment, would constitute no more than an advisory opinion. Under

Article III of the Constitution, federal courts may adjudicate only “actual,

ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317, 108 S. Ct. 592, 601

(1988). That the named plaintiffs have not been subject to bail proceedings

since years before the advent of S.B. 6 calls into question their ability to

pursue this litigation for ongoing injunctive relief as injured parties, much

less class representatives. And although the plaintiffs submitted some kind

of video evidence purporting to demonstrate deficient proceedings in the

immediate wake of the new law, we agree with the district court’s statement

that “there is minimal evidence in the record reflecting what actually

happens in Dallas County after the effective date of S.B. 6.” In sum, the case

is moot because “the issues presented are no longer ‘live’ or the parties lack

a legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc.,

568 U.S. 85, 91, 133 S. Ct. 726 (2013) (internal quotation omitted). Thus,

even if federal courts were not compelled by Younger and O’Shea to abstain,

the present controversy must be considered moot.

Plaintiffs challenge mootness in light of two Supreme Court cases.

Neither is helpful to plaintiffs. One of these stated that a change in the law

during litigation does not moot a claim unless it “completely and irrevocably

eradicated the effects of the alleged violation.” Los Angeles Cnty. v. Davis,

440 U.S. 625, 631, 99 S. Ct. 1379, 1383 (1979). Davis recited the importance

of completely eradicating the “effects of the alleged violation” where the

question was mootness owing to the city’s voluntary cessation of racially

discriminatory practices. As a general rule, voluntary cessation of illegal

practices does not render a case moot. See id. On the facts before it, the

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Court held that the case had become moot under the high standard for

voluntary cessation. Voluntary cessation is not involved here. More

recently, the Supreme Court disclaimed mootness unless the new law affords

plaintiffs “the precise relief . . . requested in the prayer for relief in their

complaint.” New York State Rifle & Pistol Ass’n v. City of New York,

140 S. Ct. 1525, 1526 (2020) (per curiam). That case actually favors the

defendants, as it held that the controversy before the Supreme Court became

moot due to New York City’s amendment of its ordinance “[a]fter we

granted certiorari.” Id. This suggests that this court was exactly right in

Pugh.38

According to the plaintiffs, their complaint is not moot because it is

essentially unrelated to the changes made by the Texas legislature. Dallas

County’s bail practices allegedly remain unconstitutional irrespective of

S.B. 6 and irrespective of the existence of bail schedules. Plaintiffs argue that

they seek relief “beyond what ODonnell held to be required,” such that the

legislature’s adoption of measures originally required by ODonnell fails to

assuage their demands for on-the-record hearings and detailed factfindings

that prove in each bail proceeding whether pretrial “detention is necessary

to further any state interest.” This argument is incoherent. The overhaul

accomplished by S.B. 6 specifically requires, within 48 hours of arrest, a bail

decision reflecting individual consideration of the relevant Article 17.15(a)

statutory factors and “impos[ition of] the least restrictive conditions” that

will “reasonably ensure the defendant’s appearance in court as required and

the safety of the community, law enforcement, and the victim of the alleged

38

Plaintiffs’ attempt to shoehorn Pugh within these two cases is quite misguided.

They assert that the Pugh en banc court held that “a new state rule cured the alleged

violations and there was no evidence that the challenged conduct persisted.” As we

explained above, Pugh did no such thing in simply holding the new law facially

constitutional and declaring any further challenge to be moot.

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offense.” Tex. Code Crim. P. art. 17.028(a), (b).39 The crux of this case

is now whether the new state law, if applied assiduously by Dallas County

magistrates, measures up to plaintiffs’ proffered constitutional minima.40

S.B. 6 is heavily procedural in nature, just like the alleged claims of these

plaintiffs. Thus, both the provisions of S.B. 6 and their implementation are

alleged to raise constitutional issues beyond the scope of this case and the

circumstances of the plaintiffs who filed it. The case is moot.41

CONCLUSION

Exercising our discretion to review both justiciability issues following

remand, we hold that Younger v. Harris and its progeny required the district

court to abstain; that the ODonnell I decision to the contrary is overruled; and

that the case is moot by virtue of intervening state law.

We REMAND with instructions to DISMISS.

39

In setting the amount of bail, the magistrate must consider: (1) the “nature of the

offense”; (2) the detainee’s “ability to make bail”; (3) the “future safety of a victim of the

alleged offense, law enforcement, and the community”; (4) the detainee’s “criminal

history”; and (5) the detainee’s “citizenship status.” Tex. Code Crim. P.

art. 17.15(a).

40

If the Dallas County magistrates are not in compliance with state law, this raises

issues for state courts to resolve. Pursuant to Pennhurst State Sch. & Hosp. v. Halderman,

federal courts may not grant injunctive relief against the defendants on the basis of state

law. 465 U.S. 89, 106, 121, 124, 104 S. Ct. 900, 911, 919, 920 (1984).

41

Plaintiffs urge the court to vacate our previous en banc decision should the case

be deemed moot. In Daves (en banc), the court considered only threshold questions of

justiciability, rightly recognizing that “there is no mandatory sequencing of jurisdictional

issues.” Daves, 22 F.4th at 532 (quoting Sinochem, 549 U.S. at 431, 127 S. Ct. at 1191).

Here, we resolve additional threshold questions—those of abstention and mootness—

without reaching the merits. Vacatur of the previous en banc decision is unwarranted.

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Priscilla Richman, Chief Judge, concurring in the judgment:

I concur in the judgment holding that this case is moot in light of new

legislation passed by the Texas legislature. I would not reach whether

Younger abstention1 applies in the present case since the new statutory regime

now governs and there is no live case or controversy before this court that

requires us to determine whether pre-trial detainees in Texas had an avenue

under the former bail regime to present federal claims in challenges to bail

determinations and pre-trial detention.2

I cannot say, categorically, that Younger abstention will always be

required when a defendant brings federal claims challenging bail bond

procedures. If there is no adequate avenue under state law to challenge bail

procedures or pre-trial detentions on federal grounds, then the Younger

abstention doctrine would, in all likelihood, be inapplicable.3

1

Younger v. Harris, 401 U.S. 37 (1971).

2

See, e.g., Juidice v. Vail, 430 U.S. 327, 337 (1977) (holding that “it is abundantly

clear that appellees had an opportunity to present their federal claims in the state

proceedings. No more is required to invoke Younger abstention.” (footnote omitted)).

3

See, e.g., Gerstein v. Pugh, 420 U.S. 103, 106, 108 n.9 (1975) (holding that Younger

abstention did not apply because defendants were detained without a timely judicial

determination of probable cause and state courts had also “held that habeas corpus could

not be used, except perhaps in exceptional circumstances, to test the probable cause for

detention under an information”).

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Leslie H. Southwick, Circuit Judge, concurring in judgment:

I start with expressing admiration for the clarity and erudition of the

opinion for the court. Expected qualities for that author’s writings, certainly,

but worth noting. I differ with that opinion as to abstention, but I am able to

join the majority in dismissing the suit.

My agreement with the majority is with the analysis of mootness. The

Texas legislature’s adoption of new rules for addressing bail in trial courts

has entirely changed the relevant factual and legal underpinnings for the

dispute. If a federal district court is the proper venue for a challenge to those

procedures, it needs to be based on a new complaint in a new lawsuit.

Of course, the majority opinion also determined that challenges to bail

practices under the new enactment may not properly be pursued in federal

court. Abstention would block any decision. My view, though, is that we

cannot decide in the abstract whether abstention would apply to future claims

about bail. Specific claims made and facts shown will matter.

Preliminary to discussing abstention itself, I offer a word or two about

whether we should even address the issue. Our holding that claims against

Dallas County’s former bail practices are moot resolves this appeal. An

appeal that no longer contains a live controversy is an especially poor vehicle

for issuing a significant additional holding. Several members of the court

opine that we should leave the analysis of abstention for another day. In the

main, I agree. Nonetheless, with a majority of the court reaching the

abstention issue, then expressing a view that differs from my own, I hope

there is some benefit in offering a contrasting, even if solitary, analysis.

I. Abstention — some background

“Jurisdiction existing,” the Supreme Court explained, “a federal

court’s ‘obligation’ to hear and decide a case is ‘virtually unflagging.’”

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Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (quoting Colorado

River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)).

The abstention doctrine identified in Younger v. Harris, 401 U.S. 37 (1971), is

an “exception to this general rule.” Id. It provides that in suits requesting

injunctive or declaratory interference with certain kinds of state adjudicatory

proceedings, federal courts generally must “refus[e] to decide a case in

deference to the States.” New Orleans Pub. Serv., Inc. v. Council of City of

New Orleans, 491 U.S. 350, 368 (1989).

As the majority opinion explains, Younger abstention was a fairly

quickly imposed limit on the expansiveness of a right to enjoin state

prosecutions that had been recognized just six years earlier in Dombrowski v.

Pfister, 380 U.S. 479 (1965). See 17B CHARLES ALAN WRIGHT & ARTHUR R.

MILLER, ET AL., FED. PRAC. & PROC. § 4251, at 3 (3d ed. 2007). The

Dombrowski Court held that overbroad state statutes that criminalized

subversive activity had a chilling effect on the exercise of First Amendment

rights, and that an injunction should be granted blocking pending and future

prosecutions under the statutes. Dombrowski, 380 U.S. at 493–97. Younger

was a “major retreat” from Dombrowski. 17B WRIGHT & MILLER, FED.

PRAC. & PROC. § 4251, at 7.

The event that was a portent, at least to the discerning, that the

Supreme Court would sound retreat was the federal court injunction

obtained by John Harris and three other defendants barring Los Angeles

County District Attorney Evelle J. Younger from prosecuting them under a

statute the district court held was unconstitutional. Harris v. Younger, 281 F.

Supp. 507, 509–10, 516–17 (C.D. Cal. 1968) (citing Dombrowski and holding

the statute violated the First Amendment), rev’d, Younger, 401 U.S. 37. The

Supreme Court reversed, holding that principles of equity and comity

prohibited federal judicial interference with the ongoing state-court

prosecution. Younger, 401 U.S. at 43–44, 53–54. On equity, the Court

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adhered to “the basic doctrine of equity jurisprudence that courts of equity

should not act, and particularly should not act to restrain a criminal

prosecution, when the moving party has an adequate remedy at law and will

not suffer irreparable injury if denied equitable relief.” Id. at 43–44. On

comity, “an even more vital consideration,” the Court emphasized that the

need for “proper respect for state functions” counseled against interference

“with the legitimate activities of the States.” Id. at 44.

In time, the Court announced that abstention is appropriate if: (1) the

requested judicial relief would unduly interfere with the ongoing state

proceeding; (2) the state proceeding implicates an important state interest in

the subject-matter of the federal claim; and (3) the federal plaintiff has an

adequate opportunity to raise the federal claim in state court. Middlesex Cnty.

Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982).

More recently in its unanimous 2013 Sprint opinion, the Court

summarized Younger abstention after 40 years. See Sprint, 571 U.S. 69. “The

Court made clear that the circumstances fitting within the Younger abstention

doctrine are exceptional and include: (1) state criminal prosecutions; (2) civil

enforcement proceedings; and (3) civil proceedings involving certain orders

that are uniquely in furtherance of the state courts’ ability to perform their

judicial functions.” 17B WRIGHT & MILLER, FED. PRAC. & PROC. § 4254

(Supp. 2022) (explaining Sprint, 571 U.S. at 69, 78). The Younger abstention

doctrine goes “no further” than those three proceedings. Sprint, 571 U.S. at

82. As to the three Middlesex factors, they are “not dispositive” but are

merely “additional factors appropriately considered by the federal court

before invoking Younger.” Id. at 81 (emphasis in original).

A gateway question for us is whether the Sprint Court’s category of

“state criminal prosecutions” includes preliminary proceedings such as

deciding on bail. One reason to say bail determinations are subject to

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abstention is the Court’s reasoning for applying Younger to some state civil

proceedings. The Court stated that Younger principles apply to state civil

proceedings “‘akin to a criminal prosecution’ in ‘important respects.’” Id.

at 79 (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975)).

It could be argued that disruptions of state procedures regarding bail

are different only in degree from disruptions to the prosecution, and the state

interests are of similar weight. As the majority here puts it, the “mischief”

arising from detailed equitable relief that “fix[es] the time of, the nature of

and even the burden of proof in the evidentiary hearings . . . would permit a

pre-trial detainee who claimed that the order was not complied with to

proceed to the federal court for interpretations thereof.” Majority op. at 16–

17 (quoting Wallace v. Kern, 520 F.2d 400, 406 (2d Cir. 1975)). Supportive

of the majority’s view is the statement in one of the preeminent federal

procedure treatises that a federal court should abstain if relief “would intrude

on a state’s administration of justice, even in the absence of a particular,

individual, ongoing state proceeding.” 17A JAMES W. MOORE, ET AL.,

MOORE’S FED. CIV. PRAC. § 122.72[1][c], at 122-10 (Rev. 2022) (emphasis

added). If that phrasing accurately captures the doctrine, abstention

certainly could extend beyond the prosecution itself.

On the other hand, Dombrowski and Younger, though having much

different results, both address whether the unconstitutionality of a criminal

statute supporting a state prosecution can be presented in federal court.

Constitutional arguments can be presented in a prosecution and have the

potential to alter its result. Dombrowski held the prosecution could be blocked

before it even began if the criminal statute were unconstitutional, while

Younger said the constitutional arguments needed to be presented in the state

criminal proceedings. Certainly, Younger has been stretched beyond that, as

the majority opinion discusses, and so will I. Those extensions, though, are

more similar to criminal prosecutions than is the bail determination. In those

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extensions, the constitutional claims can be part of the principal proceedings

and will thwart those proceedings if accepted. Hence, abstention makes

sense at least at the level of not having duplicative forums for the same claims.

Rather differently, the validity of equal protection claims about bail

would not affect the validity of or intrude into the criminal prosecution. Even

so, depending on the complexity of the relief a court orders as to bail, the

courts that handle the prosecutions could be significantly burdened.

I conclude inconclusively. The applicability of Younger’s abstention

to bail proceedings has no clear answer. One reason I hesitate to agree with

the majority that the Younger analysis should be applied to bail proceedings

is that a clear purpose of Sprint was to stop abstention proliferation.

“Divorced from their quasi-criminal context,” the Court wrote, “the three

Middlesex conditions would extend Younger to virtually all parallel state and

federal proceedings, at least where a party could identify a plausibly

important state interest.” Sprint, 571 U.S. at 81. That must not occur,

because “abstention from the exercise of federal jurisdiction is the

‘exception, not the rule.’” Id. at 81–82 (quoting Hawaii Housing Authority v.

Midkiff, 467 U.S. 229, 236 (1984)). Certainly, Sprint did not announce that

Younger was dying. Instead, the Court was saying Younger had gotten older;

its reach had fully matured; it should not be given more tasks.

For me, then, whether abstention could apply here turns on whether

bail decisions are in Sprint’s category of “criminal prosecutions.” In order

to engage with the majority and show how my analysis differs, I assume for

purposes of this case that abstention is not categorically inapplicable to bail

proceedings. I start with the assumption that bail proceedings are

“exceptional circumstances.” Abstention still must be justified by the

“additional factors appropriately considered by the federal court before

invoking Younger.” Sprint, 571 U.S. at 81 (emphasis in original). The Sprint

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Court stated that these factors are not “dispositive,” id., but absent some

significant overriding factual or legal considerations in the case, I treat them

as guiding the result.

In the following analysis, whether abstention applies here turns on two

of the Middlesex factors.1 First, would injunctive or other relief from the

federal court impermissibly interfere with ongoing state-court proceedings?

Middlesex, 457 U.S. at 431–32, 437. Further, “is there an adequate

opportunity in the state proceedings to raise constitutional challenges”? Id.

at 432. My separate analysis of each factor follows.

II. Impermissible interference with ongoing state proceedings

“Our Federalism” is the rubric Justice Hugo Black used for Younger

abstention. Younger, 401 U.S. at 44. We must avoid both “blind deference”

to states and “centralization of control over every important issue.” Id.

Even though the Younger doctrine has expanded since its 1971 origin,

federalism remains key.

As I begin, I request forbearance. My effort to explain some of the

caselaw requires me to detail what those cases actually involved and, thus,

how to interpret their wording. Though I seek to give context without

overburdening, the direction I am willing to err will become obvious.

One case that began in the Fifth Circuit, with multiple opinions

including one from the Supreme Court and one from our en banc court, is a

good source for early and still applicable analysis of prohibited interference

with state courts. See, e.g., Gerstein v. Pugh, 420 U.S. 103 (1975); Pugh v.

1

I will not discuss whether the proceedings involve important state interests, as the

state’s interests in its own bail proceedings are certainly substantial.

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Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc).2 The case led to one of

the earliest Supreme Court opinions rejecting Younger abstention. The case

began as a class-action challenge in the former, six-state Fifth Circuit that had

Florida within its boundaries. The named plaintiffs were arrested and

detained in Dade County, Florida, based solely on a prosecutor’s

information3 charging them with offenses. The lead plaintiff was Robert

Pugh, jailed at the time of the complaint on an information charging him with

robbery and other offenses. Gerstein v. Pugh, 420 U.S. at 105 n.1.

One defendant was Richard Gerstein, the State Attorney (i.e., chief

prosecutor) for the judicial circuit containing Miami and Dade County. Id.

at 107. Gerstein had statutory authority to file an information against those

alleged to have committed a crime under state law, leading to a suspect’s

detention based on Gerstein’s own, unreviewed determination about

probable cause. Id. at 105–06. Plaintiffs asserted that Gerstein’s policy was

“to refuse to provide a defendant in custody by virtue of a directly filed

information an opportunity for a binding preliminary hearing to determine

probable cause for his incarceration.” Complaint at 28, Pugh v. Rainwater,

2

I offer an explanation about shortform case names used in my opinion. In

following what I consider to be the proper convention, the usual one-party names for some

opinions are spurned. I believe proper practice is not to use the name of the governmental

official. For example, multiple opinions arose from litigation brought by plaintiff Robert

Pugh after he was detained in Dade County jail. Gerstein v. Pugh, 420 U.S. at 105–06.

Defendant Richard E. Gerstein was the State Attorney for Dade County, Florida, id. at 107,

while James Rainwater was one of three defendant Small Claims Court judges. See

Complaint at 2–4, Pugh v. Rainwater, No. 71-CV-448 (S.D. Fla. Mar. 22, 1971), in Appendix

filed with Petitioner’s Brief after grant of Writ of Certiorari, Gerstein v. Pugh, 420 U.S. 103

(No. 73-477). Thus, Pugh is my shortform. In order to combine the exigencies of reader

clarity with the eccentricities of writer preference, I will refer to both parties when rejecting

a standard shortform for a case. Yet, I do not wish to be ridiculous. The governmental

party was Younger, the private party Harris, but I refer to that case as Younger.

3

“Information. A formal criminal charge made by a prosecutor without a grand-

jury indictment.” BLACK’S LAW DICTIONARY 795 (8th ed. 2004).

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supra n.2. The relief sought against Gerstein included a declaratory judgment

that a prompt probable-cause hearing was constitutionally necessary, and an

injunction requiring such hearings. Id. at 11–13.4 Prosecutor Gerstein’s part

of the case would be considered by the Supreme Court.

Relief was also sought against eight state-court judges. Id. at 4. Three

were Small Claims Court judges, James Rainwater being the first named. Id.

The other five were Justices of the Peace. Id. Plaintiffs asserted that the eight

judges unconstitutionally set monetary bail for all arrestees, regardless of the

arrestee’s ability to pay. Id. at 10. The plaintiffs alleged that the practice

“discriminates against poor persons solely because of their poverty without

any rational basis,” in violation of the Equal Protection Clause of the

Fourteenth Amendment. Id. On that claim, the plaintiffs requested a

declaratory judgment that secured money bail for indigent arrestees was

discrimination under the Fourteenth Amendment, and an injunction

prohibiting the use of monetary bail in this manner. Id. at 13. The Supreme

Court did not consider the Rainwater bail issues.

The district court ruled for the plaintiffs on the probable-cause issue

but for the defendants on the bail issue. Pugh v. Rainwater, 332 F. Supp. 1107,

1115 (S.D. Fla. 1971). That decision led to separate appeals to this court. In

the probable-cause appeal, we upheld the district court’s injunction and

declined to abstain. Pugh v. Rainwater, 483 F.2d 778 (5th Cir. 1973). State

Attorney Gerstein then petitioned the Supreme Court for a writ of certiorari;

we held the issue of bail in abeyance. With some modifications to the Fifth

4

The complaint also alleged that the defendant judges had authority to provide

preliminary hearings but would not do so for “persons incarcerated in the Dade County Jail

by virtue of a direct information filed by defendant Gerstein.” Id. at 4, 7–8.

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Circuit decision, the Supreme Court affirmed and remanded for further

proceedings. Gerstein v. Pugh, 420 U.S. at 126.

The Gerstein v. Pugh Court’s discussion of Younger was relegated to a

footnote; there, the Court rejected abstention:

The District Court correctly held that respondents’ claim for

relief was not barred by the equitable restrictions on federal

intervention in state prosecutions, Younger v. Harris, 401 U.S.

37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The 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 prosecution.

The order to hold preliminary hearings could not prejudice the

conduct of the trial on the merits.

Id. at 108 n.9. This language certainly supports that Younger is inapplicable

to bail. Even so, a legal doctrine can evolve from its original terms.

Because the Supreme Court stated the district court “correctly held”

that the claims were not barred by Younger, I examine the district court’s

holding. The district court quoted Younger as permitting an injunction when

there is “‘great and immediate’ ‘irreparable injury’ other than the ‘cost,

anxiety, and inconvenience of having to defend against a single criminal

prosecution,’ and the injury must be one that cannot be eliminated by the

defense therein.” Pugh v. Rainwater, 332 F. Supp. at 1111 (quoting Younger,

401 U.S. at 46). This is the district court’s description of Pugh’s injury:

Plaintiffs at bar are challenging the validity of their

imprisonment pending trial with no judicial determination of

probable cause. These facts present an injury which is both

great and immediate and which goes beyond cost, anxiety, and

inconvenience. Furthermore, the state has consistently denied

the right asserted, so that the injury is irreparable in that it

cannot be eliminated either by the defense to the prosecution

or by another state proceeding.

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Id.

The district court’s correct understanding of Younger was that injury

arising from being detained without a probable cause hearing cannot be

dismissed as simply the “cost, anxiety, and inconvenience” of a criminal

prosecution. Id. Generally, a prosecution does not violate someone’s

constitutional rights even when the result is an acquittal. Cost, anxiety, and

inconvenience are inherent in being prosecuted for a crime. Gerstein v. Pugh,

though, supports that detention without any judicial determination that there

is probable cause causes an injury that is not inherent, and indeed is

abhorrent, to our criminal justice system. The Court elaborated in 1979 by

stating that “the injunction [in Gerstein v. Pugh] was not addressed to a state

proceeding and therefore would not interfere with the criminal prosecutions

themselves.” Moore v. Sims, 442 U.S. 415, 431 (1979). More on Sims later.

After the Supreme Court’s Pugh opinion but before this court made

its final decision as to the bail portion of the suit, the Florida Supreme Court

promulgated a new rule concerning bail. See Pugh v. Rainwater, 557 F.2d

1189, 1194, 1200–01 (5th Cir. 1977). After a panel decision, we reheard the

bail issue en banc. See Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en

banc). The en banc court held that the plaintiffs’ original bail challenge was

mooted by the new Florida rule. Id. at 1058. We then held that the new

Florida rule was not facially unconstitutional. Id. at 1059. We explained that

the automatic detention of indigent arrestees “without meaningful

consideration of other possible alternatives” would violate the Fourteenth

Amendment, but that the new Florida rule did not facially preclude

meaningful consideration. Id. at 1057–59. The en banc opinion remains valid

that indigents’ constitutional rights can be violated by bail decisions.

We did not discuss Younger in the panel or en banc Pugh v. Rainwater

opinions as to bail following the Supreme Court’s Gerstein v. Pugh opinion

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concerning probable-cause determinations. Reasons for the failures can be

proposed now, but I conclude that silence should be accepted as our court’s

last word in the Pugh collection of opinions on Younger.

I have discussed the series of Pugh decisions first because of the

litigation’s origins in this circuit and the importance of the decisions to our

subsequent jurisprudence. The lodestar precedent for the majority here,

though, is a decision three years after Younger, namely, O’Shea v. Littleton,

414 U.S. 488 (1974).5 Plaintiffs were 17 black and two white residents of

Cairo, Illinois, and its surrounding county; they were not detainees. Id. at

491. They brought a class action to challenge alleged racial discrimination in

the setting of bail, imposing of fines, and sentencing in a municipal court

system. Id. at 490–91. The Seventh Circuit gave substantial detail about their

claims and categorized them by groups of defendants such as the local

prosecutor Berbling, magistrate judge O’Shea, trial judge Spomer, and the

prosecutor’s investigator Shepherd. Littleton v. Berbling, 468 F.2d 389, 392–

93 (7th Cir. 1972). Claims against the prosecutor included discriminating

against black arrestees in multiple ways, while those against the investigator

were conspiring with the prosecutor to discriminate. Id.

Importantly for us, the claims against the judges were broad, including

their use of a bond schedule that did not consider the individual defendant:

Spomer and O’Shea, as judges, engage in a pattern and practice

of discriminatory conduct based on race as follows: They set

bond in criminal cases by following an unofficial bond schedule

without regard to the facts of a case or circumstances of an

individual defendant. They sentence black persons to longer

criminal terms and impose harsher conditions than they do for

5

Yet again, I will apply my convention to this opinion and use plaintiff Littleton’s

name as the shortform, not the governmental defendant Judge O’Shea’s.

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white persons who are charged with the same or equivalent

conduct. They require plaintiffs and members of their class,

when charged with violations of city ordinances which carry

fines and possible jail penalties, if the fine cannot be paid, to

pay for a trial by jury.

Id. at 393.

The Seventh Circuit reversed the district court’s dismissal of the suit

and gave guidance on potential remedies:

Obviously, since this case is before us on a motion to dismiss,

it would be improper for us to attempt to spell out in detail any

relief the district court might grant if the plaintiffs can prove

what they allege. Nevertheless, as this appears to be a case of

first impression as to the type of relief approved, we feel

obligated to give the district court some guidelines as to what

type of remedy might be imposed. We do not mean to require the

district court to sit in constant, day-to-day supervision of either state

court judges or the State’s attorney. An initial decree might set

out the general tone of rights to be protected and require only

periodic reports of various types of aggregate data on actions on bail

and sentencing and dispositions of complaints.

Id. at 414–15 (footnotes omitted; emphasis added). The italicized statement

about periodic reports was quoted disapprovingly by the Supreme Court

when it reversed. See Littleton, 414 U.S. at 493 n.1.

The Seventh Circuit’s allowing a federal court to get periodic reports

and then to inject itself even further into the operation of local criminal courts

was central to the Supreme Court’s reversal. The plaintiffs had requested

“an injunction aimed at controlling or preventing the occurrence of specific

events that might take place in the course of future state criminal trials.” Id.

at 500. “An injunction of the type contemplated by respondents and the

Court of Appeals would disrupt the normal course of proceedings in the state

courts via resort to the federal suit for determination of the claim ab initio.”

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Id. at 501. Such an injunction “would require for its enforcement the

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.” Id.

My difference with the majority on what to make of the combination

in Littleton of extravagantly broad intrusion into state court functions, and

the fact that one of the intrusions concerned bail, is mirrored in different

views expressed by other circuit courts. The First Circuit distinguished

Littleton as involving “continuing federal judicial supervision of local

criminal procedures” and found no Younger barrier in its case because the

plaintiff’s “challenge to pretrial detention procedures could not be raised as

a defense at trial.” Fernandez v. Trias Monge, 584 F.2d 848, 851 n.2, 853 (1st

Cir. 1978). The Ninth Circuit distinguished the broad relief sought in

Littleton from an exclusive challenge to bail procedures. See Arevalo v.

Hennessy, 882 F.3d 763, 766 n.2 (9th Cir. 2018). It concluded that abstention

would be inappropriate when the claims solely concern bail. Id. at 766. The

Eleventh Circuit reached a similar conclusion in a decision I will discuss in

more detail later. See Walker v. City of Calhoun, 901 F.3d 1245, 1254–55 (11th

Cir. 2018). For now, I state only that I largely agree with Walker.

The Fifth Circuit stated a different view of Littleton from that of the

just-cited opinions. See Tarter v. Hury, 646 F.2d 1010 (5th Cir. Unit A June

1981). After describing abstention in O’Shea v. Littleton, we held: “Because

O’Shea involved a challenge to the imposition of excessive bail, it is

conclusive as to Tarter’s claim for equitable relief based on that ground.” Id.

at 1013. With trepidation, I am bold to say I disagree with that opinion’s

author, one of the ablest of judges ever on this court, John Minor Wisdom.

Of course, I have already been worrisomely bold by disagreeing with able

current colleagues. Tarter seems to mean that abstention categorically

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applies to claims about bail in state court. Even if it does, Judge Wisdom

detailed a narrower understanding of Littleton:

The plaintiffs sought declaratory and injunctive relief. The

Supreme Court held that dismissal of those claims was

appropriate because the granting of such equitable relief would

require excessive federal interference in the operation of state

criminal courts. The enforcement of any remedial order

granting the relief requested would require federal courts to

interrupt state proceedings to adjudicate allegations of asserted

non-compliance with the order.

Id. at 1013. That quotation supports that the claims were dismissed not

simply because they dealt with bail but because of how they dealt with bail.

Though I have acknowledged what is contrary to my views about

Tarter, I close with what I find quite accurate. After resolving the claim about

bail, the court stated that a different request for relief — “an injunction

requiring clerks to file all pro se motions [—] would not require the same sort

of interruption of state criminal processes that an injunction against excessive

bail would entail.” Id. Here, Judge Wisdom made a fact-based analysis and

found certain relief would not be improperly intrusive. In my view, that also

should have been the form of analysis applied to bail.

Another opinion that the majority here embraces is one in which the

Second Circuit abstained. See Wallace v. Kern, 520 F.2d 400 (2d Cir. 1975).

That court held that abstention was rejected in Gerstein v. Pugh because the

plaintiffs had no opportunity to raise their federal claims in the state-court

system, whether directly or collaterally. Id. at 407. Collateral opportunities

to present federal claims such as in state habeas, the court stated, provide

adequate opportunities for abstention purposes. Id. at 406–07.

Because of the importance the majority here gives to the Wallace

opinion, I will analyze it in detail. The claims in that suit by indigent pretrial

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detainees in a Brooklyn jail were extensive: legal aid attorneys had staggering

caseloads they could not possibly handle; plaintiffs’ speedy trial rights were

denied by lengthy delays; “bail [was] denied where no imposition of money

conditions [was] reasonably necessary”; lengthy pretrial detention caused

loss of employment and other harms; and several other claims concerning the

effects of delay. Wallace v. McDonald, 369 F. Supp. 180, 184 (E.D.N.Y.

1973).6 District Judge Orrin Judd, in a series of decisions, generally accepted

each of the plaintiffs’ claims. In a slightly later series of decisions, the Second

Circuit reversed them all, one by one.7

The Second Circuit summarized this history in its third opinion:

In Wallace I, Judge Judd had granted an application for a

preliminary injunction against the Legal Aid Society’s

acceptance of any additional felony cases in the Kings County

Supreme Court if the average caseload of its attorneys

6

The lead defendant was Miles F. McDonald; he was dismissed from the case

because he had retired as a trial judge before suit was even filed. Wallace v. McDonald, No.

72-C-898 (E.D.N.Y. Feb. 27, 1973), at *16, *18-19 (the published opinion cited in the text

redacted these details). The full 1973 opinion and a 1975 unpublished opinion I cite later

are no longer in the district court records. They were provided by Sarah Wharton of the

Harvard Law School Library after being located in Historical & Special Collections; Orrin

Grimmell Judd papers; Opinions & Speeches, Sept. 1972–July 1973, and Aug. 1974–Aug.

1975. A Fifth Circuit librarian, Judy McClendon, was the intermediary. My thanks to both.

Justice Michael Kern was the lead defendant in subsequent opinions.

7

Judge Judd’s boldness more generally is shown by his order of July 25, 1973, two

months after his first Wallace injunction, enjoining the Secretary of Defense from

conducting combat operations in Cambodia, Vietnam, and Laos. See Holtzman v.

Schlesinger, 361 F. Supp 553, 565–66 (E.D.N.Y. 1973). On July 27, the Second Circuit

stayed the injunction; on August 1, the Second Circuit Justice, Thurgood Marshall, refused

to vacate the stay; heedless, on August 3, Justice William Douglas vacated the stay; and on

August 4, the full Court stayed the injunction. See Holtzman v. Schlesinger, 414 U.S. 1304,

1304–05, 1316, 1321 (1973). On August 8, the Second Circuit reversed and ordered

dismissal. Holtzman v. Schlesinger, 484 F.2d 1307, 1314–15 (2d Cir. 1973). A lot happened

fast, but the Supreme Court’s message to all judges (and to Justice Douglas, too) was —

stay in your lane. How that obligation applies to bail is the central issue before us.

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exceeded 40. The district court also had ordered the Clerk of

the Criminal Term of the Kings County Supreme Court to

place on the calendar all pro se motions filed by inmates of the

Brooklyn House of Detention.

Wallace v. Kern, 520 F.2d at 401 (summarizing Wallace v. Kern, 392 F. Supp.

834 (E.D.N.Y. 1973), rev’d, 481 F.2d 621 (2d Cir. 1973)) (Wallace I). The

circuit court was so insistent about vacating the injunction that its opinion

was delivered from the bench after argument. See Wallace I, 481 F.2d at 622.

The court did not cite Younger, indeed, it cited only one precedent, but it did

say that “under the principle known as comity a federal district court has no

power to intervene in the internal procedures of the state courts.” Id.

The circuit court in 1975 described the second rejected order this way:

In Wallace II, Judge Judd had granted an application for a

preliminary injunction ordering that each detainee held for trial

for more than six months be allowed to demand a trial and be

released on his own recognizance if not brought to trial within

45 days of his demand. This court reversed on the ground that

questions concerning the right to a speedy trial are properly to

be determined on a case-by-case basis rather than by a broad

and sweeping order.

Wallace, 520 F.2d at 401 (summarizing Wallace v. Kern, 371 F. Supp. 1384

(E.D.N.Y. 1974), rev’d, 499 F.2d 1345 (2d Cir. 1974)) (Wallace II). “Relief

from unconstitutional delays in criminal trials is not available in wholesale

lots,” the court stated. Wallace II, 499 F.2d at 1351. Younger was not cited.

Finally, Wallace III dealt with bail. The relief ordered was extensive,

including time limits for bail determinations, granting a right to an

evidentiary hearing, and requiring consideration of other forms of release:

Judge Judd ordered that an evidentiary hearing be had on

demand at any time after 72 hours from the original

arraignment and whenever new evidence or changes in facts

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may justify. At the hearing, the People would be required to

present evidence of the need for monetary bail and the reasons

why alternate forms of release would not assure the

defendant’s return for trial, and the defendant would be

permitted to present evidence showing why monetary bail

would be unnecessary. The defendant was also held to be

entitled to a written statement of the judge’s reasons for

denying or fixing bail.

Wallace v. Kern, 520 F.2d at 403 (Wallace III) (summarizing and reversing

Wallace v. Kern, No. 72-C-898 (E.D.N.Y. Feb. 14, 1975)).

The Wallace III opinion accurately equated the Wallace injunction to

the remedy in Littleton of having periodic reporting to the federal court on

state court proceedings. The Wallace district court had “provided for new

bail hearing procedures which fix the time of, the nature of and even the

burden of proof in the evidentiary hearings.” Id. at 406. That “order would

permit a pre-trial detainee who claimed that the order was not complied with

to proceed to the federal court for interpretations thereof.” Id. The

similarities to Littleton are highlighted by the fact the Wallace district court

cited the not-yet-reversed Seventh Circuit Littleton opinion four times to

justify refusing to dismiss the suit, then the Second Circuit’s Wallace III

opinion cited the Supreme Court’s Littleton opinion eight times when it

reversed the district court. See Wallace v. McDonald, 369 F. Supp. at 186–87

(citing Littleton v. Berbling, 468 F.2d 389); Wallace III, 520 F.2d at 404–08

(citing O’Shea v. Littleton, 414 U.S. 488).

The Wallace III court interpreted Littleton to invalidate the

restrictions on state court bail procedures imposed by the district court

because they were an “ongoing federal audit of state criminal proceedings.”

Id. at 405–06 (quoting Littleton, 414 U.S. at 500). Indeed, the district court’s

“order created an intrusion upon existing state criminal process which is

fissiparous and gratuitous and it further ignored the prior rulings of this court

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on appeals in this case.” Id. at 408. My vocabulary is not as extensive as that

court’s, but the obvious point is that the district court order was overly

intrusive. The district court had rejected abstention, though, because

“[i]mproper pre-trial confinement would not be an issue on a defendant’s

trial on the criminal charge.” Wallace, No. 72-C-898 (Feb. 14, 1975), at *62.

The Wallace III opinion distinguished Gerstein v. Pugh, which had

rejected abstention in the (in)famous footnote 9. Wallace III, 520 F.2d at

406–07. To remind, that footnote relied on the absence of a direct challenge

to any specific prosecution and the fact the claims were only about “the

legality of pretrial detention without a judicial hearing, an issue that could not

be raised in defense of the criminal prosecution.” Gerstein v. Pugh, 420 U.S.

at 108 n.9. The Wallace III court determined that in the context of the Florida

procedures at issue, the Supreme Court was implicitly relying on its

statement earlier in its opinion that no adequate procedures were available

under state law to contest the absence of a judicial determination of probable

cause. Wallace III, 520 F.2d at 406.

I doubt, though, that the Supreme Court in 1975 was incorporating by

reference some implied factual limitation to its statement. Footnote 9 makes

no hint of such reliance — to my eyes at least. It is a categorical statement,

not qualified by earlier detailed factual background. I will discuss in the final

section of this opinion how I would apply the factor of whether adequate

procedures exist under Texas law in our case. Taken literally, the footnote

means abstention does not apply to pretrial bail. I have conceded for

purposes of analyzing Younger here that the force of the footnote has waned.

In summary, the three Wallace decisions from the Second Circuit are

the seriatim equivalent of what the Supreme Court in Littleton dealt with in

one decision. The Wallace district court entered orders that controlled how

Legal Services would operate, including the number of cases individual

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attorneys could be assigned; controlled the court’s pro se docket; required

detainees to be tried or released on their own recognizance if not timely

brought to trial after a demand; and, most relevantly to us, required prompt

evidentiary bail hearings, with the government needing to substantiate

imposing bail as opposed to alternative release conditions and the court

having to give written reasons for it decision. Id. at 401–03. This was a

wholesale federal intrusion into the operation of state criminal prosecutions.

The fact that some of the intrusion is pretrial, such as regarding bail, did not

remove the considerations for abstention.

My key point, after all this discussion of the Wallace opinions, is that

the intrusion into “the domain of the state,” id. at 408, was indeed severe,

not just as to bail but for the entire range of measures the district court

imposed. What I see absent from the Supreme Court decisions and from the

Wallace opinions is that if bail is involved, the Middlesex factor of undue

interference with ongoing state proceeding is always satisfied. (Ironically, a

fair interpretation of Gerstein v. Pugh footnote 9 is that this factor is never

satisfied as to bail.) Instead, it is necessary to examine just what the plaintiffs

are seeking as to bail. I accept the phrasing of some learned commentary that,

under Littleton, it is proper to “rely on a fact-intensive evaluation of how state

courts conduct their business and whether the federal exercise of jurisdiction

would constitute an ongoing intrusion into the state’s administration of

justice.” 17A MOORE’S FED. PRAC., § 122.72[1][c], at 122–107. We must

focus on how a federal court is asked to exercise its jurisdiction as a fact-based

issue. There is not a categorical answer just because bail is involved.

I give brief attention to the recent decisions from our court regarding

injunctive relief governing bail in another large Texas county, the one

containing the city of Houston. See, e.g., ODonnell v. Harris Cnty., 892 F.3d

147 (5th Cir. 2018). The majority opinion here overrules ODonnell. The

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extent of injunctive relief granted there was arguably too similar to what the

Supreme Court rejected in O’Shea v. Littleton.

Finally, I review an opinion with which I mostly agree. See Walker,

901 F.3d at 1255. Ninth Circuit Judge O’Scannlain, sitting by designation in

the Eleventh Circuit, analyzed whether a federal court could enjoin a Georgia

city’s “policy of using a secured-money bail schedule with bond amounts

based on the fine an arrestee could expect to pay if found guilty, plus

applicable fees.” Id. at 1252. I start with a mild disagreement. The court

wrote that Younger abstention is now “disfavored.” Id. at 1254 (citing Sprint,

571 U.S. at 77–78). It is true that Sprint sought to halt the expansion of

Younger’s reach. See Sprint, 571 U.S. at 81 (stating that misapplying the

“three Middlesex conditions would extend Younger to virtually all parallel

state and federal proceedings”). Instead of indicating disfavor, I find Sprint

simply announced that the doctrine was now fully defined.8

I return to Walker. The court implied that footnote 9 in Gerstein v.

Pugh should be taken on its own terms: abstention “does not readily apply

here because Walker is not asking to enjoin any prosecution. Rather, he

merely seeks prompt bail determinations for himself and his fellow class

members.” Walker, 901 F.3d at 1254 (citing Gerstein v. Pugh, 420 U.S. 103).

The Walker court concluded that Littleton required abstention when broad

8

The Wright & Miller treatise described Sprint as a “clarification”:

The Court clarified the meaning of the Middlesex and Dayton Christian Schools cases

in 2013 in Sprint Communications, Inc. v. Jacobs. The Court made clear that the

circumstances fitting within the Younger abstention doctrine are exceptional and

include: (1) state criminal prosecutions; (2) civil enforcement proceedings; and (3)

civil proceedings involving certain orders that are uniquely in furtherance of the state

courts’ ability to perform their judicial functions.

17B WRIGHT & MILLER § 4254, at 79 & n.21 (Supp. 2022).

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relief was sought that “amounted to ‘an ongoing federal audit of state

criminal proceedings.” Id. at 1254–55 (quoting Littleton, 414 U.S. at 500).

Much less was being sought in Walker:

Instead, as in Gerstein, Walker merely asks for a prompt pretrial

determination of a distinct issue, which will not interfere with

subsequent prosecution. At the very least, the district court

could reasonably find that the relief Walker seeks is not

sufficiently intrusive to implicate Younger. Because we review

a Younger abstention decision for abuse of discretion, we are

satisfied that the district court was not required to abstain.

Id. at 1255 (citation omitted).

Charting that analysis, I conclude the Walker court found the plaintiffs

were not seeking nearly as broad of relief as in Littleton, that the resulting

potential intrusion on state procedures was not severe, and that without

considering adequacy of other remedies or the significance of the state’s

interest, that the district court did not abuse its discretion by deciding the

merits of the claims. Id. at 1256–57. The Walker court never held that

abstention was categorially inapplicable, but the considerations I have

highlighted allowed the claims to be resolved in that case.

Though the court addressed only the interference factor, Sprint stated

that the three Middlesex factors are not dispositive but are “appropriately

considered by the federal court before invoking Younger.” Sprint, 571 U.S.

at 81. Further, the key justification for Younger abstention, i.e., Our

Federalism, is to allow state courts to function without federal court

oversight absent exceptional circumstances. Once the Walker court

concluded there was no interference, the federalism concerns were satisfied.

Equally significant is the Walker analysis after it refused to abstain.

“Under the [City’s] Standing Bail Order, arrestees are guaranteed a hearing

within 48 hours of arrest to prove their indigency (with court-appointed

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counsel) or they will be released.” Walker, 901 F.3d at 1265. The district

court insisted that the hearing must be within 24 hours even though “[b]oth

procedures agree on the standard for indigency and that those found indigent

are to be released on recognizance.” Id. at 1265–66. The Eleventh Circuit

held that the district court’s imposing the 24-hour obligation was an abuse of

discretion. Id. at 1266–67.

The district court also had ordered the City to use an affidavit-based

system to determine indigency, while the Standing Bail Order provided for

judicial hearings. Id. The Eleventh Circuit rejected that judicial alteration to

the City’s policies. “Whatever limits may exist on a jurisdiction’s flexibility

to craft procedures for setting bail, it is clear that a judicial hearing with court-

appointed counsel is well within the range of constitutionally permissible

options. The district court’s unjustified contrary conclusion was legal error

and hence an abuse of discretion.” Id. at 1268–69.

The circuit court vacated the preliminary injunction imposed by the

district court and allowed the City’s Standing Bail Order to stand. Id. at 1272.

Judge O’Scannlain has shown us our way. Well, obviously, he has

shown only me the way. Abstention requires fact-based analysis on what the

plaintiffs seek and how burdensome it would be. We know that injunctive

relief cannot “require for its enforcement the continuous supervision by the

federal court over the conduct of the [officials involved in setting bail] in the

course of future criminal trial proceedings.” Littleton, 414 U.S. at 501.

Neither can the relief be “a form of monitoring of the operation of state court

functions that is antipathetic to established principles of comity.” Id.

One difficulty in my conception is how to deal with the fact that

plaintiffs’ complaints often are excessive in their demands, anticipating being

pared back as the case proceeds. Courts may grant relief that is far less than

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plaintiffs sought. That reality can be handled by courts’ dismissing suits that

require abstention unless plaintiffs can revise to curb their claims.

In conclusion on whether resolving claims about bail procedures on

the merits automatically leads to an impermissible interference with ongoing

state proceedings, I find the answer to be “no.” A complaint seeking the

kind of relief that was rejected in Littleton and Wallace should cause the court

to abstain. Claims seeking some procedural safeguards, that do not require

monitoring by the federal court and otherwise avoid the excessiveness of

claims in caselaw discussed here, might not require abstention. That

depends on the claims, the existing bail procedures, and other facts. We err

to make a categorical ruling that all such claims would impermissibly involve

the federal court in state criminal procedures.

III. Adequacy of opportunity to raise the federal claim in state court

A consideration for Younger abstention is whether the state provides

an adequate opportunity to bring the same constitutional claims in state court.

Middlesex, 457 U.S. at 432. It is not enough to identify a procedure. The

procedure must be measured for adequacy. I will examine some of the

caselaw already discussed to see how it addressed adequacy of state remedies.

Early in describing Younger adequacy is Gerstein v. Pugh, 420 U.S. 103.

Of course, the opinion concerned determinations of probable cause to detain

someone, not bail, but the adequacy of state procedures is equally relevant to

both issues. The five-justice majority opinion stated that “the Fourth

Amendment requires a judicial determination of probable cause as a

prerequisite to extended restraint of liberty following arrest.” Id. at 114.

Requiring judicial action before an “extended restraint of liberty” occurs

means delay has significance. In addition, the Court reviewed the roadblocks

for a detainee in getting judicial review of probable cause: the prosecutor’s

filing an information meant there would be no preliminary hearing, and

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habeas corpus was only available, if ever, in “exceptional circumstances.” Id.

at 106. “The only possible methods for obtaining a judicial determination of

probable cause were a special statute allowing a preliminary hearing after 30

days, and arraignment, which the District Court found was often delayed a

month or more after arrest.” Id. (citing Pugh v. Rainwater, 332 F. Supp. at

1110) (footnote and statutory citations omitted; emphasis added). The Court

closed its summary by stating “a person charged by information could be

detained for a substantial period solely on the decision of a prosecutor.” Id.

The Court’s emphasis on timeliness is undeniable.

The four concurring justices stated they joined the part of the majority

opinion I just detailed “since the Constitution clearly requires at least a timely

judicial determination of probable cause as a prerequisite to pretrial

detention.” Id. at 126 (Stewart, J., concurring) (emphasis added). The

majority did not take issue with the concurring justice’s using the word

“timely.” The Court had not stated Florida detainees could never obtain

judicial determinations of probable cause, only that it “often” would not be

made for at least a month. Id. at 106. Thus, a lack of a timely determination

was at least part of the reason the majority rejected abstention.

There are other Supreme Court opinions indicating the importance of

timely remedies. One explicit statement is in an opinion analyzing abstention

in the context of a state administrative scheme for disciplining optometrists.

See Gibson v. Berryhill, 411 U.S. 564 (1973). Proceedings were ongoing against

plaintiff Berryhill and others at a state administrative board. Berryhill and

other optometrists sued board members in federal court, claiming that board

members were biased against them. Id. at 570. The Supreme Court stated

that dismissing a federal suit based on Younger abstention “naturally

presupposes the opportunity to raise and have timely decided by a competent

state tribunal the federal issues involved.” Id. at 577 (emphasis added). The

presupposition failed because of the district court’s finding that the board

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members were biased. Id.9 Admittedly, the timeliness portion of the

presupposition did not come into play, only the competence factor.

Nevertheless, Supreme Court dicta “is entitled to great weight.” Hignell-

Stark v. City of New Orleans, 46 F.4th 317, 330 n.21 (5th Cir. 2022).

Berryhill is cited in later significant precedents. In Middlesex, the

Court analyzed abstention in the context of disciplinary proceedings before

an attorney-ethics committee. Such proceedings were held to involve “vital

state interests.” Middlesex, 457 U.S. at 432 (citing Moore v. Sims, 442 U.S. at

426). The Court then wrote that the “pertinent inquiry is whether the state

proceedings afford an adequate opportunity to raise the constitutional

claims.” Id. (quoting Moore v. Sims, 442 U.S. at 430, then citing Berryhill,

411 U.S. 564). The Court found “the state court desired to give Hinds a swift

judicial resolution of his constitutional claims.” Id. at 437 n.16 (emphasis

added). The Court closed with this:

Because respondent Hinds had an ‘opportunity to raise and

have timely decided by a competent state tribunal the federal

issues involved,’ Gibson v. Berryhill, 411 U.S., at 577, 93 S.Ct.,

at 1697, and because no bad faith, harassment, or other

exceptional circumstances dictate to the contrary, federal

courts should abstain from interfering with the ongoing

proceedings.

Id. at 437 (emphasis added).

The Moore v. Sims opinion cited in Middlesex analyzed abstention in a

case involving the Texas Family Code, which allowed the state to take

custody of abused children. Moore v. Sims, 442 U.S. at 418–19. The parents

9

In discussing whether state procedures were “adequate,” the Court summarized

that federal courts have found state agency remedies inadequate “on a variety of grounds.

Most often this has been because of delay by the agency.” Id. at 575 n.14 (emphasis added).

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of children who had been taken into state custody brought suit in federal

court; the district court enjoined the state from prosecuting any suit under

the relevant statutory provisions pending a final decision on their

constitutionality. Id. at 422. The Supreme Court disagreed, holding that

“the only pertinent inquiry [for Younger abstention] is whether the state

proceedings afford an adequate opportunity to raise the constitutional claims.”

Id. at 430 (emphasis added). An earlier, similar statement was supported by

the signal of “see” for Berryhill. Id. at 425 (citing Berryhill, 411 U.S. 564).

A phrase with a possibly different emphasis in both Moore v. Sims and

Middlesex is that “a federal court should abstain ‘unless state law clearly bars

the interposition of the constitutional claims.’” Middlesex, 457 U.S. at 432

(quoting Moore v. Sims, 442 U.S. at 426). Does that mean that absent a clear

prohibition in the state proceedings to raising constitutional claims —

regardless of questions about adequacy — abstention is required? That

hardly makes sense, as the Court in both opinions included the analysis I have

already detailed about adequacy and, in Middlesex, timeliness.

To understand the Court’s use of “clearly bars,” we need its context.

In Sims, the facts about delay were detailed in the district court opinion. That

factual recitation reveals the parents moved for a hearing in state court five

days after a March 26 ex parte order that had removed their children. Sims v.

State Dept. of Public Welfare, 438 F. Supp. 1179, 1184 (S.D. Tex. 1977), rev’d,

Moore v. Sims, 442 U.S. 415. The judge was absent. Id. A hearing was held

on April 5 on a newly filed writ of habeas corpus, but the court decided the

matter needed to be transferred to another county. Id. A hearing was finally

conducted there on May 5. Id. at 1185.

The federal district court stated that the 42-day delay for a hearing

revealed that “in practice the state procedures operate in such a manner as

to prevent or, at the very minimum, substantially delay the presentation of

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constitutional issues,” which meant “abstention would be inappropriate.”

Id. at 1189. Obviously, there were state procedures to hear the constitutional

claims almost immediately after the children were taken from their parents,

but it took over a month for a hearing finally to be held. The plaintiffs

complained about not being “granted a hearing at the time that they thought

they were entitled to one.” Moore v. Sims, 442 U.S. at 430. The Supreme

Court rejected that such episodic delays defeated abstention, as there was no

indication of bad faith on behalf of anyone. Id. at 432. That is the context for

the statement that abstention should apply “unless state law clearly bars the

interposition of the constitutional claims.” Id. at 425–26.

The use of that phrase in Middlesex had similar purposes. The

attorney being disciplined argued there was no opportunity in the ethics

proceedings to have constitutional issues considered. Middlesex, 457 U.S. at

435. The Supreme Court found no support for such a contention:

[Attorney] Hinds failed to respond to the complaint filed by the

local Ethics Committee and failed even to attempt to raise any

federal constitutional challenge in the state proceedings.

Under New Jersey’s procedure, its Ethics Committees

constantly are called upon to interpret the state disciplinary

rules. Respondent Hinds points to nothing existing at the time

the complaint was brought by the local Committee to indicate

that the members of the Ethics Committee, the majority of

whom are lawyers, would have refused to consider a claim that

the rules which they were enforcing violated federal

constitutional guarantees.

Id. (emphasis in original). The Court emphasized that a party must “‘first

set up and rely upon his defense in the state courts, even though this involves

a challenge of the validity of some statute, unless it plainly appears that this

course would not afford adequate protection.’” Id. (quoting Younger, 401 U.S.

at 45 (quoting Fenner v. Boykin, 271 U.S. 240, 244 (1926)) (emphasis added).

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There was no evidence in either Middlesex or Moore v. Sims that

adequate consideration of constitutional challenges was generally unavailable

in state court. Missteps along the way in receiving a hearing or failure even

to use the available procedures did not show inadequacy. Each case cited

Berryhill, which included timeliness as part of adequacy.

The necessity of taking advantage of available state procedures before

claiming inadequacy is the point in other opinions. In one case, plaintiffs held

in contempt by a state court sued in federal court to have the contempt

statute declared unconstitutional; they had not made that claim in state court.

Juidice v. Vail, 430 U.S. 327, 330 (1977). The Court held they “had an

opportunity to present their federal claims in the state proceedings. No more

is required” for abstention; the opportunity could not be flouted. Id. at 337.

The Court discussed the state procedure, which seemingly could have

provided effective relief. Id. at 337 n.14.

Another Supreme Court decision relying in large part on a party’s

shunning state procedures is Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987).

An historically large jury verdict of $10.5 billion was entered against Texaco

after a jury trial in state court. Id. at 4. In Texas, an appellant had to post a

bond in the amount of the judgment, plus interest and costs. Id. at 5. Texaco

could not afford the bond; instead of seeking relief in the state court itself, it

filed suit in federal court and alleged the application of the requirement of so

large a bond violated Texaco’s constitutional rights. Id. at 6.

Texaco insisted “that Younger abstention was inappropriate because

no Texas court could have heard Texaco’s constitutional claims within the

limited time available.” Id. at 14. The Supreme Court responded: “But the

burden on this point rests on the federal plaintiff to show ‘that state

procedural law barred presentation of [its] claims.’” Id. (quoting Moore v.

Sims, 442 U.S. at 432). “Moreover, denigrations of the procedural

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protections afforded by Texas law hardly come from Texaco with good grace,

as it apparently made no effort under Texas law to secure the relief sought in

this case.” Id. at 15. The Court also quoted the same Younger language I

earlier quoted: “‘The accused should first set up and rely upon his defense

in the state courts, even though this involves a challenge of the validity of

some statute, unless it plainly appears that this course would not afford

adequate protection.’” Id. at 14–15 (quoting Younger, 401 U.S. at 45).

In sum, the Supreme Court did not say timeliness was irrelevant. It

wrote that before arguments about adequacy would be entertained, the party

seeking to avoid abstention must be able to prove the inadequacy of the state

procedures. Texaco had failed even to try. Yes, the Court also again referred

to whether state procedures “barred” the claims. Also, again, the context

for the reference includes whether state remedies would “afford adequate

protection.” Id. (emphasis added).

Some of the circuit court opinions I discussed earlier are useful here

too. In Wallace III, the Second Circuit highlighted the Gerstein v. Pugh

concern about delay in Florida procedures:

It is significant, therefore, that the Supreme Court’s opinion in

Gerstein emphasizes at the outset that the federal plaintiffs

there had no right to institute state habeas corpus proceedings

except perhaps in exceptional circumstances and that their

only other state remedies were a preliminary hearing which

could take place only after 30 days or an application at

arraignment, which was often delayed a month or more after

arrest.

Wallace III, 520 F.2d at 406. The court then stated: “We do not consider

this discussion feckless,” i.e., the discussion of limited procedures and

inherent delays was meaningful; it affected the result. Id.

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In “sharp contrast” to Florida procedures, the Wallace III court

explained that New York procedures “provide that a pre-trial detainee may

petition for a writ of habeas corpus in the [trial-level] Supreme Court, that its

denial may be appealed and that an original application for habeas may be

made in the Appellate Division of the Supreme Court.” Id. at 407 (statutory

citations omitted). The Second Circuit faulted the district court for first

making a fact finding “that state habeas relief was available to the plaintiff

class with provision for appeal to the Appellate Division,” but then not

discussing “the availability of this remedy in that part of the opinion which

rejected” the application of Younger abstention. Id. at 404–05. In addition,

the Wallace III opinion stated that the record supported that one remedy —

an evidentiary hearing on bail — had never been requested by any prisoner,

and had it been, a hearing would have been conducted. Id. at 407.

Though the Wallace III court identified delay as important in Gerstein

v. Pugh, the Second Circuit was silent on how quickly New York procedures

could be employed.10 The explanation in Middlesex, 457 U.S. at 435, may

apply: inadequacy of state remedies must be shown. In Wallace, no one had

even sought an evidentiary hearing on bail. In other words, available

procedures were not tried and found wanting; they were not even tried.

A Second Circuit opinion relying on Wallace III held that timeliness

mattered. See Kaufman v. Kaye, 466 F.3d 83 (2d Cir. 2006). Kaufman

brought a federal suit to challenge the manner in which appeals were assigned

among panels of judges in state court. Id. at 87. Abstention was necessary

10

I obtained the unpublished district court opinion reversed by Wallace III to see if

it had fact-findings about delay. Findings included existence of lengthy pretrial detention,

long delay in indicting those arrested for felonies, and substantial delays for trial. Wallace,

No. 72-C-898 (Feb. 14, 1975), at *7–9. As to habeas, though, all the district court stated

was that a prisoner could apply to the state trial court, and review of its decision would then

be available in that court’s appellate division. Id. at *9. Nothing useful there.

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because “the plaintiff has an ‘opportunity to raise and have timely decided by

a competent state tribunal’ the constitutional claims at issue in the federal

suit.’” Id. (quoting Spargo v. New York State Comm’n on Judicial Conduct,

351 F.3d 65, 77 (2d Cir. 2003) (emphasis added).

The quoted Spargo case was brought by state judges claiming that

judicial ethics rules restricted their First Amendment rights. Spargo, 351 F.3d

at 69–70. The Second Circuit stated that “to avoid abstention, plaintiffs

must demonstrate that state law bars the effective consideration of their

constitutional claims.” Id. at 78 (emphasis added). That decision quoted the

Supreme Court that plaintiffs, if they have an “opportunity to raise and have

timely decided by a competent state tribunal” their constitutional claims, the

federal courts should abstain. Id. at 77 (quoting Middlesex, 457 U.S. at 437)

(emphasis added). The court summarized by stating that plaintiffs can

proceed in federal court if they can “demonstrate that state law bars the

effective consideration of their constitutional claims.” Id. at 78. The

Kaufman court later quoted this statement in Spargo about “effective

consideration.” Kaufman, 466 F.3d at 87. Effectiveness, not just existence,

of state procedures for raising constitutional claims is needed. Depending on

the issue, effectiveness can turn on timeliness.

This review of the caselaw revealed no precedents that refused to

abstain because of untimely state procedures as to bail. Even so, the Supreme

Court in Berryhill and Middlesex and the Second Circuit in Kaufman and

Spargo all explicitly required timely state procedures. The Court also held

that the Fourth Amendment required judicial intervention before there was

an “extended restraint of liberty following arrest.” Gerstein v. Pugh, 420 U.S.

at 114. Adequacy generally of the available state procedures was discussed

by the Supreme Court in Gerstein v. Pugh, Moore v. Sims, and Middlesex, and

by the Second Circuit in Wallace III, Kaufman, and Spargo. The adequacy,

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including timeliness, of state procedures did not require measurement in

Middlesex, Juidice, Texaco, or in Wallace III because they had not been tried.

A distinction is appropriate here. Delays in a criminal prosecution do

not allow a defendant to seek federal court relief unless there is bad faith in

the proceedings. Moore v. Sims, 442 U.S. at 432. “[T]he cost, anxiety, and

inconvenience of having to defend against a single criminal prosecution”

cannot amount to irreparable injury. Younger, 401 U.S. at 46. The

prosecution likely violates no rights, so its tribulations must be endured.

Quite differently, unconstitutional pretrial detention leads to injury that is

different in kind as well as degree to the cost, anxiety, and inconvenience of

being prosecuted. An unconstitutional pretrial detention is an immediate

violation of a right. It should not have to be endured any longer than

necessary. It is difficult for me to see, when dealing with a potentially

unconstitutional “restraint of liberty following arrest,” Gerstein v. Pugh, 420

U.S. at 114, how adequacy of a remedy can be divorced from its timeliness.

The majority discusses the statutory procedures available in Dallas

County and in Texas. See Majority op. at 18–19. Of importance, though, the

Supreme Court in 1975 stated that procedures available in Dade County and

in Florida were too delayed to support abstention. Gerstein v. Pugh, 420 U.S.

at 106, 123–25. The district court on remand in this case was not given much

evidence, but it identified one example (from four decades ago) of quite slow

habeas procedures. See Ex parte Keller, 595 S.W.2d 531 (Tex. Crim. App.

1980). Any future case regarding bail procedures should create a factual

record that allows a determination of adequacy — including timeliness.

IV. Conclusion

This appeal is moot. Any future litigation about bail in Dallas County

would need to address the new law labeled S.B.6. See Act of August 31, 2021,

87th Tex. Leg. 2d C.S., S.B. 6). Those procedures are the ones that now

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must provide adequate, timely mechanisms for adjudicating constitutional

claims.

For purposes of this opinion, I accept that Younger analysis should be

applied to claims about bail. I do not see that impermissible interference with

state courts will always result if a federal court enters orders regarding state

court bail procedures and policies. We know that what some district courts

have done, such as the relief granted in Littleton or in Wallace, is

unacceptable. Those actions were impermissibly intrusive, and abstention

was invoked. Lesser claims and remedies as in Walker might be permissible.

There are guardrails for intrusions as to bail but not a locked gate.

As to the adequacy of state court remedies, a significant point of

departure for me from the majority is that I believe the timeliness for any

review of the constitutional claim is relevant. When dealing with whether

someone is unconstitutionally being detained before trial, abstention due to

too-slow-to-matter review in state court is an abdication of the federal court’s

“virtually unflagging obligation” to decide a case for which it has jurisdiction.

See Colorado River Water Conservation Dist., 424 U.S. at 817.

In closing, I acknowledge plaintiffs’ goal in bail litigation may be to

require release of almost all arrestees without money bail. Regardless, our en

banc statement was correct that “[r]esolution of the problems concerning

pretrial bail requires a delicate balancing of the vital interests of the state with

those of the individual.” Pugh v. Rainwater, 572 F.2d at 1056.

Indigents have constitutional rights after an arrest. See id. at 1056–59.

States must strive to protect those rights. In populous jurisdictions such as

Dallas County, individualized determinations of the need for bail for each

arrestee may seem all but impossible. The record as to past practices

supports that each arrestee was rapidly processed by a magistrate judge as to

bail so the judge could then advance to the next arrestee. Even so, not

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releasing those who are dangerous or likely to disappear, or at least not

releasing without some form of restraint such as bail, are vital state interests.

Whether the constitutional rights of arrestees are protected while the

state seeks to uphold its interests in Dallas County must now to be analyzed

under the new legislation. Any litigation would need to be in state court if

the conditions for abstention are met. We cannot answer now whether those

conditions will be satisfied. Therefore, though I concur in judgment, I do not

join the portion of the majority’s opinion analyzing abstention.

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Stephen A. Higginson, Circuit Judge, joined by Stewart, Dennis

and Haynes, Circuit Judges, concurring in part, dissenting in part:

Fifth Circuit precedent states, “[I]n some limited instances, ‘a federal

court has leeway to choose among threshold grounds for denying audience to

a case on the merits.’” Env’t Conservation Org. v. City of Dallas, 529 F.3d 519,

525 (5th Cir. 2008) (emphasis added) (quoting Sinochem Int’l v. Malaysia

Int’l Shipping, 549 U.S. 428, 431 (2007)). This is not “one of those

instances.” Id.

With our sister circuits, we have recognized that the leeway granted

by Sinochem is not boundless, but “carefully circumscribed” to cases

“‘where subject-matter or personal-jurisdiction is difficult to determine,’

and dismissal on another threshold ground is clear.” Snoqualmie Indian Tribe

v. Washington, 8 F.4th 853, 863 (9th Cir. 2021) (quoting Sinochem, 549 U.S.

at 436), cert. denied sub nom. Samish Indian Nation v. Washington, 142 S. Ct.

1371 (2022), and cert. denied, 142 S. Ct. 2651 (2022); accord Env’t

Conservation Org., 529 F.3d at 524-25 (Where a “res judicata analysis is no

less burdensome than” an inquiry into mootness—the “doctrine of standing

in a time frame”—we may not decide the case on grounds of res judicata.).

One danger of the discretion Sinochem affords is that courts will “use the

pretermission of the jurisdictional question as a device for reaching a question

of law that otherwise would have gone unaddressed.” In re Facebook, Inc.,

Initial Pub. Offering Derivative Litig., 797 F.3d 148, 158-59 (2d Cir. 2015)

(emphases added) (quoting Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 98 (1998)).

I would decline the narrow discretion Sinochem permits. It is notable

that the majority’s discussion of Younger spans more than four times the

length of its discussion of mootness. There is no plausible suggestion the

court is motivated by judicial economy. Instead, I fear, our court today uses

Sinochem as a device to expansively critique Supreme Court, prior Fifth

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Circuit, and sister circuit case law. See ante, at 17 (limiting Gerstein v. Pugh,

420 U.S. 103 (1975)); id. at 19-21 (criticizing then overruling ODonnell v.

Harris Cnty., 892 F.3d 147 (5th Cir. 2018)); id. at 21-22 (criticizing Walker v.

City of Calhoun, 901 F.3d 1245 (11th Cir. 2018)).1

I would hold that this case is moot and affirm on that basis alone.

1It is impossible to overlook that the important liberty versus public-safety

controversy over pretrial detention and cash bail practices, first confronted in

ODonnell and then here, did lead to Texas legislative reform. Federal court

intervention appears to me to have been less an interference than a catalyst for state

reform.

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James E. Graves, Jr., Circuit Judge, dissenting:

“Simply stated, a case is moot when the issues presented are no

longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”

Powell v. McCormack, 395 U.S. 486, 496 (1969). “The burden of

demonstrating mootness ‘is a heavy one.’” Los Angeles Cty. v. Davis, 440

U.S. 625, 631 (1979) (quoting United States v. W. T. Grant Co., 345 U.S. 629,

633 (1953)). Mootness can occur when “interim relief or events have

completely and irrevocably eradicated the effects of the alleged violation.”

Id. In New York State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct.

1525 (2020), the Court held that New York City’s amended gun rule mooted

the case because it was “the precise relief that petitioners requested in the

prayer for relief in their complaint.” Id. at 1526.

Plaintiffs here, however, are challenging the practices of bail

determination in Dallas County. They are not challenging S.B. 6 or any other

statute. On limited remand, the district court admitted into the record

Plaintiffs’ evidence, which showed that the alleged illegal practices continue

post-S.B. 6. The case the district court relied on in finding the case moot,

Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978), is distinguishable. While

Pugh also dealt with pretrial bail issues, the court held that “[t]he record

before the Court contains only evidence of practices under criminal

procedures which predate the adoption of the current Florida rule.” Id. at

1058. The court concluded that it “determined that on its face [the newly

enacted statute] does not suffer such infirmity that its constitutional

application is precluded.” Id. It further expressed that any constitutional

challenge to the newly enacted statute should wait until “presentation of a

proper record reflecting application by the courts of the State of Florida.” Id.

1058–59

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Here, Plaintiffs provided evidence that the complained about

practices persist despite S.B. 6’s enactment. Plaintiffs describe post-S.B. 6

video evidence where the alleged unconstitutional practices continue. This

case is not automatically mooted simply because S.B. 6 addresses bail

practices. Plaintiffs allege that there remain continuing constitutional

violations and that S.B. 6 does not provide the relief Plaintiffs requested in

the prayer for relief in their complaint. Six months of post-S.B. 6 video

evidence does not prevent the court from “meaningfully . . . assess[ing] the

issues in this appeal on the present record.” Fusari v. Steinberg, 419 U.S. 379,

387 (1975).

I would find that the case is not moot. Therefore, I respectfully

dissent.

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