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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                            No. 17-20333
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             June 1, 2018

MARANDA LYNN ODONNELL,                                                     Lyle W. Cayce
                                                                                Clerk
                 Plaintiff - Appellee

v.

HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH
LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ;
JILL WALLACE; PAULA GOODHART; BILL HARMON; NATALIE C.
FLEMNG; JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY;
PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON; DAN
SPJUT; JUDGE DIANE BULL; JUDGE ROBIN BROWN; DONALD
SMYTH; JEAN HUGHES,

                  Defendants - Appellants
-----------------------------------------------------

LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD,

                 Plaintiffs - Appellees

v.

HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART
HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA
ESTELA VILLAGOMEZ,

                 Defendants - Appellants


                      Appeals from the United States District Court
                           for the Southern District of Texas
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                                       No. 17-20333
                         ON PETITION FOR REHEARING
Before CLEMENT and HAYNES, Circuit Judges.*
EDITH BROWN CLEMENT, Circuit Judge:
       The appellees’ petition for panel rehearing is granted. The prior panel
opinion, ODonnell v. Harris County, No. 17-20333 (5th Cir. 2018) is withdrawn,
and the following opinion is substituted:
       Maranda ODonnell and other plaintiffs (collectively, “ODonnell”)
brought a class action suit against Harris County, Texas, and a number of its
officials—including County Judges, 1 Hearing Officers, and the Sheriff
(collectively, the “County”)—under 42 U.S.C. § 1983. ODonnell alleged the
County’s system of setting bail for indigent misdemeanor arrestees violated
Texas statutory and constitutional law, as well as the equal protection and due
process clauses of the Fourteenth Amendment. ODonnell moved for a
preliminary injunction, and the County moved for summary judgment. After
eight days of hearings, at which the parties presented numerous fact and
expert witnesses and voluminous written evidence, the district court denied
the County’s summary judgment motion and granted ODonnell’s motion for a
preliminary injunction. The County then applied to this court for a stay of the
injunction pending appeal, but the motion was denied, and the injunction went
into effect. Before this court now is the County’s appeal, seeking vacatur of the
injunction and raising numerous legal challenges.




       * Judge Prado was a member of the original panel and participated in the initial
decision. He retired from the Court on April 2, 2018, and therefore did not participate in the
panel’s review of the petitions for panel rehearing. The case is being decided by a quorum. 28
U.S.C. § 46(d).
       1 The parties use the term “County Judges” to refer to the judges of the County

Criminal Courts of Harris County, and we will use that same term. This term does not refer
to the County Judge who is the head of the County Commissioners’ Court of Harris County.
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                                 No. 17-20333
      For the reasons set forth, we affirm most of the district court’s rulings,
including its conclusion that ODonnell established a likelihood of success on
the merits of its claims that the County’s policies violate procedural due
process and equal protection. We disagree, however, with the district court’s
analysis in three respects: First, its definition of ODonnell’s liberty interest
under due process was too broad, and the procedures it required to protect that
interest were too onerous. Second, it erred by concluding that the County
Sheriff can be considered a County policymaker under § 1983. Finally, the
district court’s injunction was overbroad. As a result, we will vacate the
injunction and order the district court to modify its terms in a manner
consistent with this opinion.
                                       I.
      We need not conduct an exhaustive review of the facts. The district
court’s account is expansive: It comprised over 120 pages of factual findings,
including not only the specific details of the County’s bail-setting procedures,
but also the history of bail and recent reform attempts nationwide.
      Bail in Texas is either secured or unsecured. Secured bail requires the
arrestee to post bond either out of the arrestee’s pocket or from a third-party
surety (often bail bondsmen, who generally require a 10% non-refundable
premium in exchange for posting bond). Unsecured bail, by contrast, allows the
arrestee to be released without posting bond, but if he fails to attend his court
date and/or comply with any nonfinancial bail conditions, he becomes liable to
the County for the bail amount. Both secured and unsecured bail may also
include nonfinancial conditions to assure the detainee’s attendance at future
hearings.
      The basic procedural framework governing the administration of bail in
Harris County is set by the Texas Code of Criminal Procedure and local rules
promulgated by County Judges. See Tex. Gov’t Code § 75.403(f). When a
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                                     No. 17-20333
misdemeanor defendant is arrested, the prosecutor submits a secured bail
amount according to a bond schedule established by County Judges. See Harris
County Criminal Courts at Law Rule 9 (hereinafter, “Local Rule”). Bonds are
then formally set by Hearing Officers and County Judges. Tex. Code. Crim.
Pro. art. 2.09, 17.15. Hearing Officers are generally responsible for setting bail
amounts in the first instance. This often occurs during the arrestee’s initial
probable cause hearing, which must be held within 24 hours of arrest. Tex.
Code Crim. Pro. art. 17.033; Local Rule 4.2.1.1. County Judges review the
Hearing Officers’ determinations and can adjust bail amounts at a “Next
Business Day” hearing. Local Rule 4.3.1.
          The Hearing Officers and County Judges are legally proscribed from
mechanically applying the bail schedule to a given arrestee. Instead, the Texas
Code requires officials to conduct an individualized review based on five
enumerated factors, which include the defendant’s ability to pay, the charge,
and community safety. Tex. Code of Crim. Pro. art. 17.15. The Local Rules
explicitly state the schedule is not mandatory. They also authorize a similar,
individualized assessment using factors which partially overlap with those
listed in the Code. Local Rule 4.2.4. Hearing Officers and County Judges
sometimes receive assessments by Pretrial Services, which interviews the
detainees prior to hearings, calculates the detainees flight and safety risk
based on a point system, and then makes specific recommendations regarding
bail. 2
          Despite these formal requirements, the district court found that, in
practice, County procedures were dictated by an unwritten custom and



        Individualized assessment is also assured by a preexisting federal consent decree,
          2

which requires County officials to make individualized assessments of each misdemeanor
defendant’s case and adjust the scheduled bail amount accordingly, or else release the
defendant on unsecured or nonfinancial conditions.
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                                 No. 17-20333
practice that was marred by gross inefficiencies, did not achieve any
individualized assessment in setting bail, and was incompetent to do so. The
district court noted that the statutorily-mandated probable cause hearing
(where bail is usually set) frequently does not occur within 24 hours of arrest.
The hearings often last seconds, and rarely more than a few minutes. Arrestees
are instructed not to speak, and are not offered any opportunity to submit
evidence of relative ability to post bond at the scheduled amount.
      The court found that the results of this flawed procedural framework
demonstrate the lack of individualized assessments when officials set bail.
County officials “impose the scheduled bail amounts on a secured basis about
90 percent of the time. When [they] do change the bail amount, it is often to
conform the amount to what is in the bail schedule.” The court further found
that, when Pretrial Services recommends release on personal bond, Hearing
Officers reject the suggestion 66% of the time. Because less than 10% of
misdemeanor arrestees are assigned an unsecured personal bond, some
amount of upfront payment is required for release in the vast majority of cases.
      The court also found that the “Next Business Day” hearing before a
County Judge fails to provide a meaningful review of the Hearing Officer’s bail
determinations. Arrestees routinely must wait days for their hearings. County
Judges adjust bail amounts or grant unsecured bonds in less than 1% of cases.
Furthermore, prosecutors routinely offer time-served plea bargains at the
hearing, and arrestees are under immense pressure to accept the plea deals or
else remain incarcerated for days or weeks until they are appointed a lawyer.
      The district court further noted the various ways in which the imposition
of secured bail specifically targets poor arrestees. For example, under the
County’s risk-assessment point system used by Pretrial Services, poverty
indicators (such as not owning a car) receive the same point value as prior
criminal violations or prior failures to appear in court. Thus, an arrestee’s
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                                 No. 17-20333
impoverishment increased the likelihood he or she would need to pay to be
released.
      The court also observed that Hearing Officers imposed secured bails
upon arrestees after having been made aware of an arrestee’s indigence by the
risk-assessment reports or by the arrestee’s own statements. And further, after
extensive review of numerous bail hearings, the court concluded Hearing
Officers were aware that, by imposing a secured bail on indigent arrestees,
they were ensuring that those arrestees would remain detained.
      The court rejected the argument that imposing secured bonds served the
County’s interest in ensuring the arrestee appeared at the future court date
and committed no further crime. The court’s review of reams of empirical data
suggested the opposite: that “release on secured financial conditions does not
assure better rates of appearance or of law-abiding conduct before trial
compared to release on unsecured bonds or nonfinancial conditions of
supervision.” Instead, the County’s true purpose was “to achieve pretrial
detention of misdemeanor defendants who are too poor to pay, when those
defendants would promptly be released if they could pay.” In short, “secured
money bail function[ed] as a pretrial detention order” against the indigent
misdemeanor arrestees.
      The district court also reviewed voluminous empirical data and academic
literature to evaluate the impact of pretrial detention on an arrestee. The court
found that the expected outcomes for an arrestee who cannot afford to post
bond are significantly worse than for those arrestees who can. In general,
indigent arrestees who remain incarcerated because they cannot make bail are
significantly more likely to plead guilty and to be sentenced to imprisonment.
They also receive sentences that are on average twice as long as their bonded
counterparts. Furthermore, the district court found that pretrial detention can


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                                   No. 17-20333
lead to loss of job, family stress, and even an increase in likeliness to commit
crime.
      The court concluded that ODonnell had established a likelihood of
success on the merits of their claim that the County violated both the
procedural due process rights and the equal protection rights of indigent
misdemeanor detainees. It granted the motion for a preliminary injunction,
requiring the implementation of new safeguards and the release of numerous
detainees subjected to the insufficient procedures.
                                         II.
      This court reviews a “district court’s grant of a preliminary injunction . . .
for abuse of discretion.” Women’s Med. Cty. of Nw. Hous. v. Bell, 

,
418–19 (5th Cir. 2001). “Findings of fact are reviewed only for clear error; legal
conclusions are subject to de novo review.” 

“Issuance of an injunction
rests primarily in the informed discretion of the district court. Yet injunctive
relief is a drastic remedy, not to be applied as a matter of course.” Marshall v.
Goodyear Tire & Rubber Co., 

, 733 (5th Cir. 1977) (internal
citations omitted). A district court abuses its discretion if it issues an injunction
that “is not narrowly tailored to remedy the specific action which gives rise to
the order as determined by the substantive law at issue.” Scott v. Schedler, 

, 211 (5th Cir. 2016) (internal quotation marks and alterations
omitted).
                                        III.
      The County raises a number of arguments that do not implicate the
merits of ODonnell’s constitutional claims. We address these first.
      A. Status of County Judges and Sheriff as County Policymakers under
         § 1983
      The County appeals the district court’s ruling that the County Judges
and Sheriff qualified as Harris County policymakers under 42 U.S.C. § 1983.
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                                 No. 17-20333
Liability under § 1983 attaches to local government officers “whose [unlawful]
decisions represent the official policy of the local governmental unit.” Jett v.
Dall. Indep. Sch. Dist., 

, 737 (1989). Whether an officer has been
given this authority is “a question of state law.” Pembaur v. City of Cincinnati,

, 483 (1986). “Official policy” includes unwritten widespread
practices that are “so common and well settled as to constitute a custom that
fairly represents municipal policy.” Johnson v. Moore, 

, 94 (5th Cir.
1992) (quoting Bennett v. City of Slidell, 

, 862 (5th Cir. 1984) (en
banc)). And unlawful decisions include “acquiescence in a longstanding
practice or custom which constitutes the standard operating procedure of the
local governmental entity.” 

(internal quotation marks
omitted).
      Though a judge is not liable when “acting in his or her judicial capacity
to enforce state law,” 

, we agree with the district court
that the County Judges are policymakers for the municipality. Texas law
explicitly establishes that the Judges are “county officers,” TEX. CONST. art. V
§ 24, imbued with broad authority to promulgate rules that will dictate post-
arrest policies consistent with the provisions of state law, Tex. Gov’t Code
§ 75.403(f). Here, ODonnell alleged that, despite having this authority, County
Judges acquiesced in an unwritten, countywide process for setting bail that
violated both state law and the Constitution. In other words, they sue the
County Judges as municipal officers in their capacity as county policymakers.
Section 1983 affords them an appropriate basis to do so.
      We agree with the County that its Sheriff is not an appropriate party for
attaching municipal liability, however. The Sheriff does not have the same
policymaking authority as the County Judges. To the contrary, the Sheriff is
legally obliged to execute all lawful process and cannot release prisoners
committed to jail by a magistrate’s warrant—even if prisoners are committed
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                                  No. 17-20333
“for want of bail.” See Tex. Code Crim. Pro. arts. 2.13, 2.16, 2.18; Tex. Loc. Gov’t
Code § 351.041(a) (noting the Sheriff’s authority is “subject to an order of the
proper court”). State statutes, in other words, do not authorize the County
Sheriff to avoid executing judicial orders imposing secured bail by unilaterally
declaring them unconstitutional. Accordingly, the County Sheriff does not
qualify as a municipal policymaker under § 1983.
      B. Younger Abstention
      The County next argues that Younger abstention precludes our review of
ODonnell’s claims. We are not persuaded.
      The Supreme Court held in Younger v. Harris that, when a party in
federal court is simultaneously defending a state criminal prosecution, federal
courts “should not act to restrain [the state] criminal prosecution, when the
moving party has an adequate remedy at law and will not suffer irreparable
injury if denied equitable relief.” 

, 43–44 (1971). Its conclusion was
motivated by the “basic doctrine of equity jurisprudence,” “notion[s] of
‘comity,’” and “Our Federalism.” 

a three-part test when
deciding whether to abstain under Younger. There must be (1) “an ongoing
state judicial proceeding” (2) that “implicate[s] important state interests” and
(3) offers “adequate opportunity” to “raise constitutional challenges.”
Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 

, 432
(1982).
      The third prong of this test is not met. As the Supreme Court has already
concluded, the relief sought by ODonnell—i.e., improvement of pretrial
procedures and practice—is not properly reviewed by criminal proceedings in
state court. See Gerstein v. Pugh, 

, 108 n.9 (1975) (noting that
abstention did not apply because “[t]he injunction was not directed at the state
prosecutions as such, but only at the legality of pretrial detention without a
judicial hearing, an issue that could not be raised in defense of the criminal
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                                      No. 17-20333
prosecution”); see also Pugh v. Rainwater, 

, 781–82 (5th Cir. 1973)
(noting that a federal question whose “resolution . . . would [only] affect state
procedures for handling criminal cases . . . . is not ‘against any pending or
future court proceedings as such’” (quoting Fuentes v. Shevin, 

, 71
n.3 (1971))), rev’d on other grounds by Gerstein, 

. As the district
court noted, the adequacy of the state court review of bail-setting procedures
is essential to ODonnell’s federal cause of action. In short, “[t]o find that the
plaintiffs have an adequate hearing on their constitutional claim in state court
would decide [its] merits.”
       We also note that the policy concerns underlying this doctrine are not
applicable here. The injunction sought by ODonnell seeks to impose
“nondiscretionary procedural safeguard[s],” which will not require federal
intrusion into pre-trial decisions on a case-by-case basis. Tarter v. Hurry, 

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

, 499–502 (1974) (noting that the enforcement of the improper
injunction in question required “continuous supervision by the federal court
over the conduct of the petitioners in the course of future criminal trial
proceedings involving any of the members of the respondents’ broadly defined
class”). Such relief does not implicate our concerns for comity and federalism. 3
       C. The County’s Eighth Amendment Argument
       The County contends that ODonnell’s complaint “is an Eighth
Amendment case wearing a Fourteenth Amendment costume.” The Eighth



       3 The County also argues that we are precluded from reviewing ODonnell’s claims
because they should have been raised as a petition for habeas corpus. See Preiser v.
Rodriguez, 

(1973). We agree with the district court that this argument has been
waived. The County neither mentioned Preiser nor pressed the habeas argument until its
motion for a stay of the injunction. The closest the County came to preserving this argument
was one sentence in its response to ODonnell’s motion for preliminary injunction. This
passing reference is insufficient to preserve the argument, especially given that it is
dispositive of the case at the threshold stage.
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Amendment states in relevant part that “[e]xcessive bail shall not be required.”
U.S. CONST. amend. VIII. It is certainly true that, when a constitutional
provision specifically addresses a given claim for relief under 42 U.S.C. § 1983,
a party should seek to apply that provision directly. See Graham v. Connor,

, 394 (1989); cf. Manuel v. City of Joliet, 

, 917 (2017).
But we have already concluded that “[t]he incarceration of those who cannot
[pay money bail], without meaningful consideration of other possible
alternatives, infringes on both due process and equal protection requirements.”
Pugh v. Rainwater, 

, 1057 (5th Cir. 1978) (en banc). ODonnell’s
present claims do not run afoul of Graham.
                                         IV.
      We now address the merits of ODonnell’s constitutional claims. For the
reasons set forth below, we affirm the court’s rulings that the County’s bail
system violates both due process and equal protection, though we modify the
basis for its conclusion as to due process.
      A. Due Process Claim
      Procedural due process claims are subject to a two-step inquiry: “The
first question asks whether there exists a liberty or property interest which
has been interfered with by the State; the second examines whether the
procedures attendant upon that deprivation were constitutionally sufficient.”
Meza v. Livingston, 

, 399 (5th Cir. 2010) (internal quotation marks
omitted). Applying this framework, we disagree with the district court’s
formulation of the liberty interest created by state law, but agree that the
procedural    protections     of   bail-setting   procedures     are   nevertheless
constitutionally deficient.
      Liberty interests protected by the due process clause can arise from two
sources, “the Due Process Clause itself and the laws of the States.” Ky. Dep’t of
Corr. v. Thompson, 

, 460 (1989) (internal citation omitted). Here,
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                                  No. 17-20333
our focus is the law of Texas, which has acknowledged the two-fold, conflicting
purpose of bail. This tension defines the protected liberty interest at issue here.
      On the one hand, bail is meant “to secure the presence of the defendant
in court at his trial.” Ex parte Vance, 

, 683 (Tex. Crim. App.
1980). Accordingly, “ability to make bail is a factor to be considered, [but]
ability alone, even indigency, does not control the amount of bail.” Ex parte
Charlesworth, 

, 317 (Tex. Crim. App. 1980). On the other hand,
Texas courts have repeatedly emphasized the importance of bail as a means of
protecting an accused detainee’s constitutional right “in remaining free before
trial,” which allows for the “unhampered preparation of a defense, and . . .
prevent[s] the infliction of punishment prior to conviction.” Ex parte Anderer,

, 404–05 (Tex. Crim. App. 2001) (en banc). Accordingly, the
courts have sought to limit the imposition of “preventive [pretrial] detention”
as “abhorrent to the American system of justice.” Ex parte Davis, 

, 169 (Tex. Crim. App. 1978). Notably, state courts have recognized that
“the power to . . . require bail,” not simply the denial of bail, can be an
“instrument of [such] oppression.” Taylor v. State, 

, 151 (Tex.
Crim. App. 1984) (en banc) (emphasis added).
      These protections are also ensconced in the Texas Constitution.
Specifically, Article 1 § 11 reads in relevant part, “[a]ll prisoners shall be
bailable by sufficient sureties.” TEX. CONST. art. 1, § 11. The provision is
followed by a list of exceptions—i.e., circumstances in which an arrestee may
be “denied release on bail.” 

11c. The only exception tied to
misdemeanor charges pertains to family violence offenses. See 

The
scope of these exceptions has been carefully limited by state courts, which
observe that they “include the seeds of preventive detention.” 

.


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       The district court held that § 11 creates a state-made “liberty interest in
misdemeanor defendants’ release from custody before trial. Under Texas law,
judicial officers . . . have no authority or discretion to order pretrial preventive
detention in misdemeanor cases.” This is too broad a reading of the law. The
Constitution creates a right to bail on “sufficient sureties,” which includes both
a concern for the arrestee’s interest in pretrial freedom and the court’s interest
in assurance. Since bail is not purely defined by what the detainee can afford,
see 

, the constitutional provision forbidding
denial of release on bail for misdemeanor arrestees does not create an
automatic right to pretrial release. 4
       Instead, Texas state law creates a right to bail that appropriately weighs
the detainees’ interest in pretrial release and the court’s interest in securing
the detainee’s attendance. Yet, as noted, state law forbids the setting of bail as
an “instrument of oppression.” Thus, magistrates may not impose a secured
bail solely for the purpose of detaining the accused. And, when the accused is
indigent, setting a secured bail will, in most cases, have the same effect as a
detention order. Accordingly, such decisions must reflect a careful weighing of
the individualized factors set forth by both the state Code of Criminal
Procedure and Local Rules.
       Having found a state-created interest, we turn now to whether the
procedures in place adequately protect that interest. As always, we are guided
by a three-part balancing test that looks to “the private interest . . . affected by
the official action”; “the risk of an erroneous deprivation of such interest
through the procedure used, and the probable value, if any, of additional or



       4 We also note that Texas courts have never sought to eliminate the use of bail bonds.
To the contrary, the use of secured bail was affirmed by the Texas Court of Criminal Appeals
in Anderer, despite the opinion’s strong language in support of an accused’s pretrial freedom.

.
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                                       No. 17-20333
substitute procedural safeguards”; and “the Government’s interest, including
the function involved and the fiscal and administrative burdens” that new
procedures would impose. 

(quoting Mathews v. Eldridge,

, 335 (1976)).
       As the district court found, the current procedures are inadequate—even
when applied to our narrower understanding of the liberty interest at stake.
The court’s factual findings (which are not clearly erroneous) demonstrate that
secured bail orders are imposed almost automatically on indigent arrestees.
Far from demonstrating sensitivity to the indigent misdemeanor defendants’
ability to pay, Hearing Officers and County Judges almost always set a bail
amount that detains the indigent. In other words, the current procedure does
not sufficiently protect detainees from magistrates imposing bail as an
“instrument of oppression.”
       The district court laid out specific procedures necessary to satisfy
constitutional due process when setting bail. Specifically, it found that,
       Due process requires: (1) notice that the financial and other
       resource information Pretrial Services officers collect is for the
       purpose of determining a misdemeanor arrestee’s eligibility for
       release or detention; (2) a hearing at which the arrestee has an
       opportunity to be heard and to present evidence; (3) an impartial
       decisionmaker; (4) a written statement by the factfinder as to the
       evidence relied on to find that a secured financial condition is the
       only reasonable way to assure the arrestee’s appearance at
       hearings and law-abiding behavior before trial; and (5) timely
       proceedings within 24 hours of arrest. 5




       5 The district court analyzed new efforts by both the County and State to improve their
bail-setting procedures. We need not review its discussion here. We note, however, that we
agree with its conclusions that the County’s proposed remedies, which are beginning to be
implemented, fail to address the constitutional violations at issue. We also agree that the
changes proposed by the State would provide a more adequate remedy. Should these
provisions become law, the need for the court’s intervention must be revisited.
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                                    No. 17-20333
The County challenges these requirements on appeal. We find some of their
objections persuasive.
      As this court has noted, the quality of procedural protections owed a
defendant is evaluated on a “spectrum” based on a case-by-case evaluation of
the liberty interests and governmental burdens at issue. 

–09. We note that the liberty interest of the arrestees here are particularly
important: the right to pretrial liberty of those accused (that is, presumed
innocent) of misdemeanor crimes upon the court’s receipt of reasonable
assurance of their return. See 

however, is the government’s interest
in efficiency. After all, the accused also stands to benefit from efficient
processing because it “allow[s] [for his or her] expeditious release.” United
States v. Chagra, 

, 363 (5th Cir. 1983); cf. Cty. of Riverside v.
McLaughlin, 

, 53 (1991) (noting that defendants might be disserved
by adding procedural complexity into an already complicated system). The
sheer number of bail hearings in Harris County each year—according to the
court, over 50,000 people were arrested on misdemeanor charges in 2015—is a
significant factor militating against overcorrection.
      With this in mind, we make two modifications to the district court’s
conclusions regarding the procedural floor. First, we do not require factfinders
to issue a written statement of their reasons. While we acknowledge “the
provision for a written record helps to insure that [such officials], faced with
possible scrutiny by state officials . . . [and] the courts . . . will act fairly,” Wolff
v. McDonnell, 

, 565 (1974), such a drastic increase in the burden
imposed upon Hearing Officers will do more harm than good. We decline to
hold that the Constitution requires the County to produce 50,000 written
opinions per year to satisfy due process. Cf. United States v. McConnell, 

, 110 (5th Cir. 1988) (concluding that, under the Bail Reform Act of
1984, the “court must [merely] explain its reasons for concluding that the
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                                  No. 17-20333
particular financial requirement is a necessary part of the conditions for
release” when setting a bond that a detainee cannot pay). Moreover, since the
constitutional defect in the process afforded was the automatic imposition of
pretrial detention on indigent misdemeanor arrestees, requiring magistrates
to specifically enunciate their individualized, case-specific reasons for so doing
is a sufficient remedy.
      Second, we find that the district court’s 24-hour requirement is too strict
under federal constitutional standards. The court’s decision to impose a 24-
hour limit relied not on an analysis of present Harris County procedures and
their current capacity; rather, it relied on the fact that a district court imposed
this requirement thirty years ago (that is, prior to modern advancements in
computer and communications technology). See Sanders v. City of Hous., 

(S.D. Tex. 1982). But Sanders’s holding, which was not grounded
in procedural due process but in the Fourth Amendment, relied on the
Supreme Court opinion, Gerstein, 

. 

And Gerstein was
later interpreted as establishing a right to a probable cause hearing within 48
hours. 

–57. Further, McLaughlin explicitly
included bail hearings within this deadline. 

      We conclude that the federal due process right entitles detainees to a
hearing within 48 hours. Our review of the due process right at issue here
counsels against an expansion of the right already afforded detainees under
the Fourth Amendment by McLaughlin. We note in particular that the heavy
administrative burden of a 24-hour requirement on the County is evidenced by
the district court’s own finding: the fact that 20% of detainees do not receive a
probable cause hearing within 24 hours despite the statutory requirement.
Imposing the same requirement for bail would only exacerbate such issues.
      The court’s conclusion was also based on its interpretation of state law.
But while state law may define liberty interests protected under the procedural
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                                  No. 17-20333
due process clause, it does not define the procedure constitutionally required
to protect that interest. See Wansley v. Miss. Dep’t of Corr., 

, 313
(5th Cir. 2014) (noting that state law cannot serve as “the source of . . . process
due”); Giovanni v. Lynn, 

, 912 (5th Cir. 1995) (“[W]here a liberty
. . . interest is infringed, the process which is due under the United States
Constitution is that measured by the due process clause, not that called for by
state regulations. Mere failure to accord the procedural protections called for
by state law or regulation does not of itself amount to a denial of due process.”
(internal citation omitted)). Accordingly, although the parties contest whether
state law imposes a 24- or 48-hour requirement, we need not resolve this issue
because state law procedural requirements do not impact our federal due
process analysis.
      The district court’s definition of ODonnell’s liberty interests is too broad,
and the procedural protections it required are too strict. Nevertheless, even
under our more forgiving framework, we agree that the County procedures
violate ODonnell’s due process rights.
      B. Equal Protection
      The district court held that the County’s bail-setting procedures violated
the equal protection clause of the Fourteenth Amendment because they treat
otherwise similarly-situated misdemeanor arrestees differently based solely on
their relative wealth. The County makes three separate arguments against
this holding. It argues: (1) ODonnell’s disparate impact theory is not cognizable
under the equal protection clause, see Johnson v. Rodriguez, 

, 306
(5th Cir. 1997); (2) rational basis review applies and is satisfied; (3) even if
heightened scrutiny applies, it is satisfied. We disagree.
      First, the district court did not conclude that the County policies and
procedures violated the equal protection clause solely on the basis of their
disparate impact. Instead, it found the County’s custom and practice
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                                   No. 17-20333
purposefully “detain[ed] misdemeanor defendants before trial who are
otherwise eligible for release, but whose indigence makes them unable to pay
secured financial conditions of release.” The conclusion of a discriminatory
purpose was evidenced by numerous, sufficiently supported factual findings,
including direct evidence from bail hearings. This custom and practice resulted
in detainment solely due to a person’s indigency because the financial
conditions for release are based on predetermined amounts beyond a person's
ability to pay and without any “meaningful consideration of other possible
alternatives.” 

. Under this circuit’s binding
precedent, the district court was therefore correct to conclude that this
discriminatory action was unconstitutional. 

(noting that pre-
trial   “imprisonment     solely   because   of   indigent   status   is   invidious
discrimination and not constitutionally permissible” under both “due process
and equal protection requirements”); see also Griffin v. Illinois, 

, 18
(1956) (noting that the indigent are protected by equal protection “at all stages
of [criminal] proceedings”). Because this conclusion is sufficient to decide this
case, we need not determine whether the equal protection clause requires a
categorical bar on secured money bail for indigent misdemeanor arrestees who
cannot pay it.
        Second, the district court’s application of intermediate scrutiny was not
in error. It is true that, ordinarily, “[n]either prisoners nor indigents constitute
a suspect class.” Carson v. Johnson, 

, 821–22 (5th Cir. 1997). But
the Supreme Court has found that heightened scrutiny is required when
criminal laws detain poor defendants because of their indigence. See, e.g., Tate
v. Short, 

, 397–99 (1971) (invalidating a facially neutral statute
that authorized imprisonment for failure to pay fines because it violated the
equal protection rights of indigents); Williams v. Illinois, 

, 241–42
(1970) (invalidating a facially neutral statute that required convicted
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                                       No. 17-20333
defendants to remain in jail beyond the maximum sentence if they could not
pay other fines associated with their sentences because it violated the equal
protection rights of indigents). Reviewing this case law, the Supreme Court
later noted that indigents receive a heightened scrutiny where two conditions
are met: (1) “because of their impecunity they were completely unable to pay
for some desired benefit,” and (2) “as a consequence, they sustained an absolute
deprivation of a meaningful opportunity to enjoy that benefit.” San Antonio
Indep. Sch. Dist. v. Rodriguez, 

, 20 (1973).
       We conclude that this case falls into the exception created by the Court.
Both aspects of the Rodriguez analysis apply here: indigent misdemeanor
arrestees are unable to pay secured bail, and, as a result, sustain an absolute
deprivation of their most basic liberty interests—freedom from incarceration.
Moreover, this case presents the same basic injustice: poor arrestees in Harris
County are incarcerated where similarly situated wealthy arrestees are not,
solely because the indigent cannot afford to pay a secured bond. Heightened
scrutiny of the County’s policy is appropriate. 6
       Third, we discern no error in the court’s conclusion that the County’s
policy failed to meet the tailoring requirements of intermediate scrutiny. In
other words, we will not disturb the court’s finding that, although the County
had a compelling interest in the assurance of a misdemeanor detainee’s future


       6  We acknowledge that the cited Supreme Court cases applied to indigents who were
already found guilty. But this court in Rainwater concluded that the distinction between post-
conviction detention targeting indigents and pretrial detention targeting indigents is one
without a difference. We found that, regardless of its timing, “imprisonment solely because
of indigent status is invidious discrimination and not constitutionally permissible.”

(citing Williams and Tate). Our conclusion was based on the
“punitive and heavily burdensome nature of pretrial confinement” and the fact that it
deprives someone who has only been “accused but not convicted of crime” of their basic
liberty. Id.; see also Anderson v. Nosser, 

, 190 (5th Cir. 1971) (noting that the
pre-trial detainment of “unconvicted misdemeanants” was a “[p]unitive measure[ ] . . . out of
harmony with the presumption of innocence”). We are bound by this analysis.

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                                 No. 17-20333
appearance and lawful behavior, its policy was not narrowly tailored to meet
that interest.
      The court’s thorough review of empirical data and studies found that the
County had failed to establish any “link between financial conditions of release
and appearance at trial or law-abiding behavior before trial.” For example,
both parties’ experts agreed that the County lacked adequate data to
demonstrate whether secured bail was more effective than personal bonds in
securing a detainee’s future appearance. Notably, even after analyzing the
incomplete data that were available, neither expert discerned more than a
negligible comparative impact on detainees’ attendance. Additionally, the
court considered a comprehensive study of the impact of Harris County’s bail
system on the behavior of misdemeanor detainees between 2008 and 2013. The
study found that the imposition of secured bail might increase the likelihood of
unlawful behavior. See Paul Heaton et al., The Downstream Consequences of
Misdemeanor Pretrial Detention, 69 STAN. L. REV. 711, 786–87 (2017)
(estimating that the release on personal bond of the lowest-risk detainees
would have resulted in 1,600 fewer felonies and 2,400 fewer misdemeanors
within the following eighteen months). These findings mirrored those of
various empirical studies from other jurisdictions.
      The County, of course, challenges these assertions with empirical studies
of its own. But its studies at best cast some doubt on the court’s conclusions.
They do not establish clear error. We are satisfied that the court had sufficient
evidence to conclude that Harris County’s use of secured bail violated equal
protection.
      In sum, the essence of the district court’s equal protection analysis can
be boiled down to the following: take two misdemeanor arrestees who are
identical in every way—same charge, same criminal backgrounds, same
circumstances, etc.—except that one is wealthy and one is indigent. Applying
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                                  No. 17-20333
the County’s current custom and practice, with their lack of individualized
assessment and mechanical application of the secured bail schedule, both
arrestees would almost certainly receive identical secured bail amounts. One
arrestee is able to post bond, and the other is not. As a result, the wealthy
arrestee is less likely to plead guilty, more likely to receive a shorter sentence
or be acquitted, and less likely to bear the social costs of incarceration. The
poor arrestee, by contrast, must bear the brunt of all of these, simply because
he has less money than his wealthy counterpart. The district court held that
this state of affairs violates the equal protection clause, and we agree.
                                        V.
      Having largely affirmed the district court’s determinations that
constitutional violations occurred, we turn to the court’s remedy. When
crafting an injunction, district courts are guided by the Supreme Court’s
instruction that “the scope of injunctive relief is dictated by the extent of the
violation established.” Califano v. Yamasaki, 

, 702 (1979). A
district court abuses its discretion if it does not “narrowly tailor an injunction
to remedy the specific action which gives rise to the order.” John Doe # 1 v.
Veneman, 

, 818 (5th Cir. 2004). Thus, an injunction must be
vacated if it “fails to meet these standards” and “is overbroad.” 

of an injunction refers to the range of proscribed activity . . . . [and]
is a matter of substantive law.” U.S. Steel Corp. v. United Mine Workers of Am.,

, 1246 n.19 (5th Cir. 1975).
      The County argues that, even if the panel credits every one of the district
court’s factual findings and conclusions of law, the injunction it ultimately
crafted is still overbroad. We agree. There is a significant mismatch between
the district court’s procedure-focused legal analysis and the sweeping
injunction it implemented.


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                                  No. 17-20333
      The fundamental source of constitutional deficiency in the due process
and equal protection analyses is the same: the County’s mechanical application
of the secured bail schedule without regard for the individual arrestee’s
personal circumstances. Thus, the equitable remedy necessary to cure the
constitutional infirmities arising under both clauses is the same: the County
must implement the constitutionally-necessary procedures to engage in a case-
by-case evaluation of a given arrestee’s circumstances, taking into account the
various factors required by Texas state law (only one of which is ability to pay).
These procedures are: notice, an opportunity to be heard and submit evidence
within 48 hours of arrest, and a reasoned decision by an impartial decision-
maker.
      That is not what the preliminary injunction does, however. Rather, it
amounts to the outright elimination of secured bail for indigent misdemeanor
arrestees. That remedy makes some sense if one assumes a fundamental
substantive due process right to be free from any form of wealth-based
detention. But, as the foregoing analysis establishes, no such right is in view.
The sweeping injunction is overbroad.
      We therefore conclude that the district court abused its discretion in
crafting an injunction that was not “narrowly tailor[ed] . . . to remedy the
specific action which gives rise to the order.” 

. We
will vacate the injunction and remand to allow the court to craft a remedy more
finely tuned to address the harm.
      The following represents the sort of modification that would be
appropriate here, although we leave the details to the district court’s
discretion:
      With these principles in mind, the court will order the following relief, to
take effect within 30 days, unless those enjoined move for and show good cause
for a reasonable, brief extension. Any motions for extension will be set for
prompt hearing and resolution.
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                            No. 17-20333


  • Harris County is enjoined from imposing prescheduled bail amounts
    as a condition of release on arrestees who attest that they cannot
    afford such amounts without providing an adequate process for
    ensuring that there is individual consideration for each arrestee of
    whether another amount or condition provides sufficient sureties.

  • Pretrial Services officers, as County employees and subject to its
    policies, must verify an arrestee’s ability to pay a prescheduled
    financial condition of release by an affidavit, and must explain to
    arrestees the nature and significance of the verification process.

  • The purpose of the explanation is to provide the notice due process
    requires that a misdemeanor defendant’s state constitutional right to
    be bailable by sufficient sureties is at stake in the proceedings.
    Pretrial Services may administer either the form of the affidavit
    currently used to determine eligibility for appointed counsel or the
    adapted form that Dr. VanNostrand testified was prepared for
    Pretrial Services to be administered by July 1, 2017, if they comply
    with the below guidelines. Pretrial Services must deliver completed
    affidavits to the Harris County Sheriff’s Office before a declarant’s
    probable cause hearing.

  • The affidavit must give the misdemeanor arrestee sufficient
    opportunity to declare under penalty of perjury, after the significance
    of the information has been explained, the maximum amount of
    financial security the arrestee would be able to post or pay up front
    within 24 hours of arrest. The affidavit should ask the arrestee to
    provide details about their financial situation sufficient to help the
    County make reliable determinations regarding the amount of bail
    that would provide sufficient sureties, including: 1) arrestee and
    spouse’s income from employment, real property, interest and
    dividends, gifts, alimony, child support, retirement, disability,
    unemployment payments, public-assistance, and other sources; 2)
    arrestee and spouse’s employment history for the prior two years and
    gross monthly pay; 3) arrestee and spouse’s present cash available
    and any financial institutions where cash is held; 4) assets owned,
    e.g., real estate and motor vehicles; 5) money owed to arrestee and
    spouse; 6) dependents of arrestee and spouse, and their ages; 7)
    estimation of itemized monthly expenses; 8) taxes and legal costs; 9)
    expected major changes in income or expenses; 10) additional

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                             No. 17-20333
     information the arrestee wishes to provide to help explain the
     inability to pay. The question is neither the arrestee’s immediate
     ability to pay with cash on hand, nor what assets the arrestee could
     eventually produce after a period of pretrial detention. The question
     is what amount the arrestee could reasonably pay within 24 hours of
     his or her arrest, from any source, including the contributions of
     family and friends.

  • The purpose of this requirement is to provide a better, easier, and
    faster way to get the information needed to determine a misdemeanor
    defendant’s ability to pay. The Hearing Officers and County Judges
    testified that they presently do not know who has the ability to pay.
    The affidavit can be completed within 24 hours after arrest; the
    current process of verifying references by phone extends for days after
    arrest.

  • The court does not order relief against the Hearing Officers or against
    the County Judges in their judicial or legislative capacities.

  • Misdemeanor defendants who are not subject to: (1) formal holds
    preventing their release from detention; (2) pending mental-health
    evaluations to determine competency; or (3) pretrial preventive
    detention orders for violating a condition of release for a crime of
    family violence, have a constitutionally protected state-created liberty
    interest in being bailable by sufficient sureties before trial. If a
    misdemeanor defendant has executed an affidavit showing an
    inability to pay prescheduled money bail and has not been released
    either: (1) on an unsecured personal bond with nonfinancial
    conditions of release; or (2) on a secured money bond for which the
    defendant could pay a commercial surety’s premium, as indicated on
    the affidavit, then the defendant is entitled to a hearing within 48
    hours of arrest in which an impartial decision-maker conducts an
    individual assessment of whether another amount of bail or other
    condition provides sufficient sureties. At the hearing, the arrestee
    must have an opportunity to describe evidence in his or her favor, and
    to respond to evidence described or presented by law enforcement. If
    the decision-maker declines to lower bail from the prescheduled
    amount to an amount the arrestee is able to pay, then the decision-
    maker must provide written factual findings or factual findings on the
    record explaining the reason for the decision, and the County must
    provide the arrestee with a formal adversarial bail review hearing

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                            No. 17-20333
     before a County Judge. The Harris County Sheriff is therefore
     authorized to decline to enforce orders requiring payment of
     prescheduled bail amounts as a condition of release for said
     defendants if the orders are not accompanied by a record showing that
     the required individual assessment was made and an opportunity for
     formal review was provided. All nonfinancial conditions of release
     ordered by the Hearing Officers, including protective orders, drug
     testing, alcohol intake ignition locks, or GPS monitoring, will remain
     in effect.

  • The purpose of this requirement is to provide timely protection for the
    state-created liberty interest in being bailable by sufficient sureties
    and to prevent the automatic imposition of prescheduled bail amounts
    without an adequate process for ensuring that there is individualized
    consideration of whether another amount or condition provides
    sufficient sureties.

  • To enforce the 48-hour timeline, the County must make a weekly
    report to the district court of misdemeanor defendants identified
    above for whom a timely individual assessment has not been held.
    The County must also notify the defendant’s counsel and/or next of
    kin of the delay. A pattern of delays might warrant further relief from
    the district court. Because the court recognizes that the County might
    need additional time to comply with this requirement, the County
    may propose a reasonable timeline for doing so.

  • The purpose of this requirement is to give timely protection to the
    state-created liberty interest in being bailable by sufficient sureties
    by enforcing federal standards indicating that 48 hours is a
    reasonable timeframe for completing the administrative incidents to
    arrest. The 48-hour requirement is intended to address the endemic
    problem of misdemeanor arrestees being detained until case
    disposition and pleading guilty to secure faster release from pretrial
    detention.

  • For misdemeanor defendants who are subject to formal holds and who
    have executed an affidavit showing an inability to pay the
    prescheduled financial condition of release, the Sheriff must treat the
    limitations period on their holds as beginning to run the earliest of:
    (1) after the probable cause hearing; or (2) 24 hours after arrest. The
    purpose of this requirement is to ensure that misdemeanor

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                                 No. 17-20333
         defendants are not prevented from or delayed in addressing their
         holds because they are indigent and therefore cannot pay a
         prescheduled financial condition of release.

      • Misdemeanor defendants who do not appear competent to execute an
        affidavit may be evaluated under the procedures set out in the Texas
        Code of Criminal Procedure Article 16.22. If competence is found, the
        misdemeanor defendant is covered by the relief the court orders, with
        the exception that the 48-hour period begins to run from the finding
        of competence rather than from the time of arrest. As under Article
        16.22, nothing in this order prevents the misdemeanor arrestee from
        being released on secured bail or unsecured personal bond pending
        the evaluation.

                                      VI.
      For the forgoing reasons, we AFFIRM the district court’s findings of fact.
We AFFIRM its conclusions of law except its conclusion that the County Sheriff
qualifies as a municipal policymaker under § 1983 and its determination of the
specific procedural protections owed under procedural due process. On those
issues, we REVERSE the district court’s conclusions. Accordingly, we VACATE
the preliminary injunction as overbroad and REMAND to the district court to
craft a revised injunction—one that is narrowly tailored to cure the
constitutional deficiencies the district court properly identified. But we also
STAY the vacatur pending implementation of the revised injunction, so as to
maintain a stable status quo.




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