from the United States District Court for the Southern
District of Texas
CLEMENT, PRADO, and HAYNES, Circuit Judges.
BROWN CLEMENT, Circuit Judge:
ODonnell and other plaintiffs (collectively,
"ODonnell") brought a class action suit against
Harris County, Texas, and a number of its officials-including
County Judges,  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.
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 sued under § 1983.
Finally, the district court's injunction was overbroad.
As a result, we will dismiss the Sheriff from the suit,
vacate the injunction, and order the district court to modify
its terms in a manner consistent with this opinion.
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.
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.
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
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 184.108.40.206. County Judges review the Hearing
Officers' determinations and can adjust bail amounts at a
"Next Business Day" hearing. Local Rule 4.3.1.
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
these formal requirements, the district court found that, in
practice, County procedures were dictated by an unwritten
custom and 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.
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.
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.
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
impoverishment increased the likelihood he or she would need
to pay to be released.
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.
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.
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 lead to loss of job, family stress,
and even an increase in likeliness to commit crime.
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.
court reviews a "district court's grant of a
preliminary injunction . . . for abuse of discretion."
Women's Med. Cty. of Nw. Hous. v. Bell, 248 F.3d
411, 418-19 (5th Cir. 2001). "Findings of fact are
reviewed only for clear error; legal conclusions are subject
to de novo review." Id. at 419.
"Issuance of an injunction rests primarily in the
informed discretion of the district court. Yet injunctive
relief is a drastic remedy, not to be applied as a matter of
course." Marshall v. Goodyear Tire & Rubber
Co., 554 F.2d 730, 733 (5th Cir. 1977) (internal
citations omitted). A district court abuses its discretion if
it issues an injunction that "is not narrowly tailored
to remedy the specific action which gives rise to the order
as determined by the substantive law at issue."
Scott v. Schedler, 826 F.3d 207, 211 (5th Cir. 2016)
(internal quotation marks and alterations omitted).
County raises a number of arguments that do not implicate the
merits of ODonnell's constitutional claims. We address
Liability of County Judges and Sheriff under § 1983
County appeals the district court's ruling that the
County Judges and Sheriff could be sued under 42 U.S.C.
§ 1983. Liability under § 1983 attaches to local
government officers "whose [unlawful] decisions
represent the official policy of the local governmental
unit." Jett v. Dall. Indep. Sch. Dist., 491
U.S. 701, 737 (1989). Whether an officer has been given this
authority is "a question of state law." Pembaur
v. City of Cincinnati, 475 U.S. 469, 483 (1986).
"Official policy" includes unwritten widespread
practices that are "so common and well settled as to
constitute a custom that fairly represents municipal
policy." Johnson v. Moore, 958 F.2d 92, 94 (5th
Cir. 1992) (quoting Bennett v. City of Slidell, 735
F.2d 861, 862 (5th Cir. 1984) (en banc)). And unlawful
decisions include "acquiescence in a longstanding
practice or custom which constitutes the standard operating
procedure of the local governmental entity."
Jett, 491 U.S. at 737 (internal quotation marks
a judge is not liable when "acting in his or her
judicial capacity to enforce state law, "
Moore, 958 F.2d at 94, we agree with the district
court that the County Judges are appropriate parties in this
suit. 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 policymakers. Section
1983 affords them an appropriate basis to do so.
agree with the County that its Sheriff is not an appropriate
party, 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
"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 cannot be sued under § 1983.
County next argues that Younger abstention precludes
our review of ...