Daves v. Dallas Cty

Case: 18-11368 Document: 00515686873 Page: 1 Date Filed: 12/28/2020

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
December 28, 2020
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

v.

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., Number 10; SHEQUITTA KELLY, Number 11 Judges of Dallas
County, Criminal Courts at Law,

Defendants - Appellees
 Case: 18-11368 Document: 00515686873 Page: 2 Date Filed: 12/28/2020

No. 18-11368

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-154

Before SOUTHWICK, GRAVES, and ENGELHARDT, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
This is an interlocutory appeal from a preliminary injunction and related
orders entered in a Section 1983 lawsuit. The claim is that state judges in
Dallas, Texas, are unconstitutionally denying release to indigent arrestees who
cannot pay the prescribed cash bail. The district court certified the suit as a
class action and allowed three different categories of judges to be defendants.
The district court determined that the Sheriff was not a proper defendant for
Section 1983 purposes but did not yet dismiss her from the case. The district
court held there was a likelihood of success by the Plaintiffs on their equal-
protection and procedural-due-process claims and granted injunctive relief
against the judges and the County.
With one exception, we agree with the district court that the Plaintiffs
have standing. This suit was properly allowed to proceed against most of the
judges and the County. As for the Criminal District Court Judges, though, we
hold that they are not proper defendants because the Plaintiffs lack standing
as to them and cannot overcome sovereign immunity. We also disagree with
the district court and hold that the Sheriff can be enjoined to prevent that
official’s enforcement of measures violative of federal law. Finally, the district
court was correct to conclude that Plaintiffs need not first pursue habeas
corpus relief. We AFFIRM the injunction — with one revision that we will
explain — and REMAND for further proceedings.

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FACTUAL AND PROCEDURAL BACKGROUND
At the time of the briefing, Defendant Dallas County asserted that the
Plaintiffs’ counsel had brought more than a dozen cases in different states
challenging the requirement of money bail for indigent arrestees. Among these
were five active cases in Texas: this one in Dallas County, one in Galveston
County, and three in Harris County. A Harris County case resulted in three
Fifth Circuit opinions that are significant to this appeal. Those opinions will
be identified later and discussed throughout our analysis.
The suit before us was filed on January 21, 2018, in the United States
District Court for the Northern District of Texas. The statutory vehicle was 42
U.S.C. § 1983. An amended complaint was filed a little more than a week later.
The Plaintiffs include six indigent individuals who were arrested from January
17 to January 19, 2018, and had allegedly been kept in jail in Dallas County
because they could not afford to pay the required cash bail.
The appellate record shows that those arrested for criminal offenses in
Dallas County are taken for an initial hearing before Dallas County Criminal
District Court Magistrate Judges. At this hearing, a Magistrate Judge sets
bail and considers whether to release the arrestee on a secured or unsecured
bond. Seven Magistrate Judges are defendants; an affidavit states there are
twenty in the county.
Additional defendants include Dallas County and its Sheriff, Marian
Brown. Also sued are 17 Dallas County Criminal District Court Judges
(“District Court Judges”), who handle felony offenses, and 11 judges of the
Dallas County Criminal Courts at Law (“County Court Judges”), with
jurisdiction over misdemeanor offenses. The District Court Judges appoint all
the Magistrate Judges. TEX. GOV’T CODE § 54.301(a) (providing that every

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district court judge in Dallas County “may appoint a magistrate to perform the
duties authorized by this subchapter”).
Both District Court and County Court Judges established a schedule for
Magistrate Judges to use in deciding the amount of bail needed to release
arrestees. The schedules were contained in broader guidelines for these
proceedings. The schedules suggest specific bail amounts for corresponding
offenses. For example, the misdemeanor guidelines’ schedule recommends
Magistrate Judges set bail at $500 for all individuals arrested for Class B
misdemeanor offenses, unless other “special circumstances” apply or “if the
arrestee is on felony probation.” Both guidelines state they are only
recommendations. Further, in February 2018, the month after this suit was
filed, the District Court Judges directed the Magistrate Judges to take an
arrestee’s ability to pay into consideration when setting bail, based on financial
affidavits arrestees can fill out prior to the hearing. Nevertheless, the district
court here found that the Magistrate Judges “routinely treat these schedules
as binding when determining bail.”
The district court issued an opinion and injunction on September 20,
2018. The court found that the directive to Magistrate Judges to take financial
affidavits into account made no noticeable difference in the practices for setting
terms of release. Indigent arrestees who could not pay the bail amount
suggested in the schedule and who did not plead guilty were “taken back to the
Dallas County Jail” and “kept in a jail cell until [their] next appearance,”
usually “weeks or months” later.
The district court stated that its rulings were “greatly simplified by” the
Fifth Circuit precedents involving Harris County. The district court
acknowledged only two differences between the Dallas County case and the
opinions on the Harris County bail practices. The first was that both felony
and misdemeanor arrestees were involved in the Dallas County case, while
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only those arrested for misdemeanors had been plaintiffs in the Harris County
litigation. Second, only the Dallas County Plaintiffs raised a substantive-due-
process claim, while the plaintiffs in both cases claimed violations of procedural
due process and equal protection. The court held that the two differences were
immaterial.
The district court found “a clear showing of routine wealth based
detention.” It also found “a clear showing this detention violates procedural
due process and equal protection rights.” The district court concluded that our
decision as to Harris County had already indicated the appropriate injunctive
relief for such violations, and accordingly the court imposed in the present case
the model injunction suggested in one of those earlier opinions.
There is more to the injunction, of course, but we highlight its key
feature: “Dallas 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 there is
individual consideration for each arrestee of whether another amount or
condition provides sufficient sureties.” Thus, the relief is procedural. In sum,
within 48 hours of arrest, a hearing must be held to evaluate whether any bail
amount is needed for the indigent or whether some other condition will suffice.
After we address some preliminary issues raised on appeal, which will take us
some time, the principal remaining issue will be whether a procedural remedy
is enough. The Plaintiffs say “no.” According to them, cash bail is permissible
only if an individualized finding is made that cash bail is necessary despite the
indigent’s inability to pay. Adding that requirement to the injunction is the
critical addition the Plaintiffs demand. We will explain our rejection of it.

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DISCUSSION
The district court’s judgment has generated an appeal, three cross-
appeals, and a jurisdictional issue raised late in a letter to the court.
Combining where we can, we will discuss the issues in the following order,
which appears to be a logical sequencing:
I. Do the Plaintiffs have standing generally?
II. Should the court either abstain or first require the Plaintiffs to
exhaust state-court remedies?
III. Are the District Court Judges proper defendants?
IV. Is Dallas County a proper defendant?
V. Is the Sheriff a proper defendant?
VI. What relief, if any, should be granted to the Plaintiffs?
We review “a district court’s decision to grant a preliminary injunction
for abuse of discretion” but review “its findings of fact for clear error and its
conclusions of law de novo.” Doe I v. Landry, 909 F.3d 99, 106 (5th Cir. 2018).
We review mixed questions of law and fact de novo, even in the preliminary-
injunction context. See Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009).
We emphasize that we are not writing on a blank slate concerning bail
procedures. This court has already issued precedential, i.e., binding, decisions
on similar issues arising from a suit involving pretrial detainees in Harris
County, Texas. There are some distinctions to be made between that case and
the current one, which may make a difference. We will give a brief overview
and will often return to these prior opinions.
The Harris County litigation led to our first major review of the
constitutional requirements for setting bail since Pugh v. Rainwater, 572 F.2d
1053 (5th Cir. 1978) (en banc). Our initial decisions were to reverse the district
court’s preliminary injunction because in practice it would require the release
of all indigent misdemeanor arrestees who claimed an inability to pay money
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bail, resulting in the “outright elimination of secured money bail for indigent
misdemeanor arrestees.” ODonnell v. Harris Cnty., 882 F.3d 528, 546 (5th Cir.
2018), withdrawn and replaced by ODonnell v. Harris Cnty., 892 F.3d 147, 163
(5th Cir. 2018) (“ODonnell I”). This court held that while it violated Equal
Protection Clause and Due Process Clause principles to make “mechanical” use
of a secured-money-bail schedule for indigent arrestees, the exclusive remedy
was a robust bail hearing, not release. ODonnell I, 892 F.3d at 163.
On remand, the district court revised the injunction, leading to a new
appeal. In a published opinion issued prior to any ruling on the merits of the
appeal, a Fifth Circuit motions panel granted a stay of four provisions of the
district court’s amended preliminary injunction. ODonnell v. Goodhart, 900
F.3d 220, 225–26, 228 (5th Cir. 2018) (“ODonnell II”). In this court’s view, the
district court again required the automatic release of indigent misdemeanor
arrestees who could not afford the secured-money-bail-schedule amount. Id.
We confirmed that a thorough hearing cured any Fourteenth Amendment
deficiencies and that no substantive-due-process rights applied. Id. at 227–28.
Finally, when newly elected judges in Harris County moved to vacate the
opinion on the stay, we denied the motion and stated that “the published
opinion granting the stay is this court’s last statement on the matter.”
ODonnell v. Salgado, 913 F.3d 479, 482 (5th Cir. 2019) (“ODonnell III”).

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No. 18-11368
I. The Plaintiffs’ standing to bring suit over bail policies
The Texas Attorney General, as counsel for the District Court Judges,
filed two letters ostensibly under the authority of Federal Rule of Appellate
Procedure 28(j). The first letter was filed 11 days before oral argument; the
second, 10 days after. Those letters raised for the first time an argument based
on long-existing law about why the named Plaintiffs have lacked standing from
the very outset of this case to bring their claims against anyone.
We start with the fact that these were not proper Rule 28(j) letters but
were functionally supplemental letter-briefs filed without authorization. The
use of Rule 28(j) to bring newly discovered but older authorities or even newly
recognized issues to the court’s attention is not unique to this case. See, e.g.,
United States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir. 2005). Indeed,
we acknowledge Rule 28(j) may seem more broadly written than our
corresponding local rule. Nonetheless, we remind that a Rule 28(j) letter sent
without an accompanying motion for leave should be used only to bring
“intervening decisions or new developments . . . to the court’s attention,” i.e.,
authority or events intervening since the earlier briefing and relevant to issues
already before the court. 5TH CIR. R. 28.4. Further, the comments in the letter
should be succinct, i.e., not a brief on the new opinion. Id. On the other hand,
a motion for leave of court should be filed prior to submitting a supplemental
brief raising caselaw or an issue that existed at the time of the prior briefing.
See id. Although each letter in this appeal cited a new opinion, the decisions
each repeated principles of law that existed well before the new articulations
but had not earlier been identified in the briefing. Thus, the letters were used
to raise a new issue, not to inform the court of new authority.
Nonetheless, Article III standing is a jurisdictional requirement.
Consequently, its absence may be raised by a party even late in litigation.

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Davis v. Tarrant Cnty., 565 F.3d 214, 220 (5th Cir. 2009). In any event, the
court itself needs to be alert to the possible absence of jurisdiction.
“[T]he jurisdictional issue of standing is a legal question for which review
is de novo,” and “[t]he party invoking federal jurisdiction bears the burden of
establishing standing.” Crane v. Johnson, 783 F.3d 244, 250–51 (5th Cir.
2015). To explain the requirements for standing, we turn to an opinion that
was cited in one of the letters:
To have Article III standing, a plaintiff must show an injury in fact
that is fairly traceable to the challenged action of the defendant
and likely to be redressed by the plaintiff’s requested relief. Courts
have divided this rule into three components: injury in fact,
causation, and redressability. The party seeking to invoke federal
jurisdiction, in this case the Plaintiffs, bears the burden of
establishing all three elements.
Requests for injunctive and declaratory relief implicate the
intersection of the redressability and injury-in-fact requirements.
The redressability requirement limits the relief that a plaintiff
may seek to that which is likely to remedy the plaintiff’s alleged
injuries. Because injunctive and declaratory relief “cannot
conceivably remedy any past wrong,” plaintiffs seeking injunctive
and declaratory relief can satisfy the redressability requirement
only by demonstrating a continuing injury or threatened future
injury. That continuing or threatened future injury, like all
injuries supporting Article III standing, must be an injury in fact.
To be an injury in fact, a threatened future injury must be
(1) potentially suffered by the plaintiff, not someone else;
(2) “concrete and particularized,” not abstract; and (3) “actual or
imminent, not ‘conjectural’ or ‘hypothetical.’”
Stringer v. Whitley, 942 F.3d 715, 720 (5th Cir. 2019) (footnotes omitted).
In Stringer, this court reversed a district court’s order granting
injunctive relief to the plaintiffs because they did not have standing. Id. at
719. The plaintiffs alleged that the Texas voter-registration system deprived
them of their right to simultaneous voter-registration applications at the time
they attempted to change their driver’s licenses online after moving to a new

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Texas county. Id. at 719–21. The plaintiffs claimed the online system led them
to believe they were registered to vote in the Texas county to which they moved;
on election day in 2014, they unsuccessfully attempted to vote. Id. at 719. By
the end of 2015, however, all the plaintiffs were registered to vote in their
respective counties. Id. This court found that the injury identified by the
district court “was not a continuing or threatened future injury, but a past
injury.” Id. at 721.
The Stringer plaintiffs argued on appeal that they had standing based
on the capable-of-repetition-yet-evading-review doctrine. Id. at 724. That
doctrine provides an exception to mootness but not to standing. Thus, we end
our explanation of Stringer other than to note that none of that was new law.
Nor was there anything new in the other decision highlighted in the
letters, Frank v. Gaos, 139 S. Ct. 1041 (2019). That opinion held there cannot
be a class action unless a named plaintiff has standing. Id. at 1046. Using
Frank as its new authority, though, the Texas Attorney General then cited
older authority that seems likely to have been the actual reason for the letter,
namely, O’Shea v. Littleton, 414 U.S. 488 (1974). The plaintiffs in O’Shea
sought injunctive relief against state judicial officers who allegedly had
intentionally discriminated in setting bond and sentencing. Id. at 495. Though
some of the plaintiffs alleged they had been injured by this discrimination in
the past, none alleged they were currently detained. Id. The Court held that
“[p]ast exposure to illegal conduct does not in itself show a present case or
controversy regarding injunctive relief . . . if unaccompanied by any continuing,
present adverse effects.” Id. at 495–96.
Applying those principles to the present appeal, the Texas Attorney
General argues that the named Plaintiffs “lack standing to seek equitable relief
reforming Dallas County’s bail procedures” because the “alleged injuries
occurred in the past, and they have no certainly impending future injury to
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support a claim for prospective relief.” As we understand the argument, it is
that even when the complaint was filed, none of the named Plaintiffs had
standing. We start, then, by examining the original complaint, filed on
January 21, 2018. The complaint claimed that the first named Plaintiff was
arrested on January 17 and was in jail when the complaint was filed on
January 21. The other named Plaintiffs were said to have been arrested “this
week” and were “all being kept in jail cells at the Dallas County Jail because
they cannot afford to pay the money bail amount required for release.”
The amended complaint of January 30, 2018, stated that “[a]t the time
this lawsuit was filed on January 21, 2018, all six Named Plaintiffs were being
kept in the Dallas County Jail because they could not afford to pay secured
financial conditions of release.” At different points between the filing of the
suit and the filing of the amended complaint on January 30, 2018, all named
Plaintiffs had been released. According to the amended allegations, three of
the named Plaintiffs were released after the original complaint was filed
because others provided cash bail for them. Another was released after
charges were dismissed. Two others had reductions in the amount of money
bail needed for release, and ultimately the needed payments were made.
So, do the Plaintiffs in the present case have standing? The issue “is to
be assessed under the facts existing when the complaint is filed.” Lujan v.
Defs. of Wildlife, 504 U.S. 555, 569 n.4 (1992). The Texas Attorney General
asked if each of the Plaintiffs had “already gone through” the bail procedures
they challenge. Each of the Plaintiffs had an initial encounter with those
procedures but remained affected by the procedures because the procedures
caused each Plaintiff to remain detained. When the initial complaint was filed,
the Plaintiffs had not finished navigating the County’s bail system. We do not
understand the argument to be that the relevant complaint for standing is the

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amended one, at which time the Plaintiffs assert they had emerged from the
bail system into their conditional liberty.
The argument in these letter briefs ends the inquiry into injury far too
soon. Though the Plaintiffs were subjected to the claimed unconstitutional bail
requirement before they filed the original complaint, they were still in
detention at the time the complaint was filed and were being subjected to
“continuing, present adverse effects.” O’Shea, 414 U.S. at 496. Indeed, the
injunctive relief they seek, and if the Plaintiffs had remained in pretrial
detention through today when we rule, would require an additional bond
hearing to determine that “pretrial detention is necessary to meet a compelling
government interest.” Accordingly, with one exception regarding that District
Court Judges that we will soon identify, the Plaintiffs’ complaint at the time of
filing satisfied the redressability and injury-in-fact requirements.
We add to the discussion that on September 20, 2018, the district court
granted the Plaintiffs’ motion for class certification and appointed them as
class representatives. The possible mootness of the named Plaintiffs’ claims at
the time the amended complaint was filed or before the class was certified is of
no consequence to this court’s jurisdiction over this class action. See Cnty. of
Riverside v. McLaughlin, 500 U.S. 44, 51 (1991). Because the Plaintiffs had
standing when they filed their original complaint, the capable-of-repetition-
yet-evading-review doctrine precludes mootness. Gerstein v. Pugh, 420 U.S.
103, 110 n.11 (1975); Caliste v. Cantrell, 937 F.3d 525, 527 n.3 (5th Cir. 2019).

II. First bringing a state habeas corpus suit
The District Court Judges, in their cross-appeal, say the district court
should have dismissed the Plaintiffs’ suit because it was necessary for the
Plaintiffs to pursue the state habeas corpus remedy prior to bringing this suit.
Those judges rely first on Preiser v. Rodriguez, 411 U.S. 475 (1973). Preiser
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held that challenges to detention cannot be brought through a Section 1983
action where the relief sought would necessarily lead to “either immediate
release from that confinement or the shortening of its duration.” Id. at 489.
Instead, detainees must proceed through a habeas action, first in state court.
Id. at 500. Thus, these judges argue that because the Plaintiffs’ “suit
effectively seeks the pretrial release of indigent arrestees,” they were required
to travel by way of habeas, not Section 1983. Some version of most of the issues
brought to us in this appeal were mentioned in our ODonnell opinions
reviewing Harris County bail practices. The Preiser issue, though, was not
properly presented in that appeal. See ODonnell I, 892 F.3d at 157 n.3.
The question in deciding whether to apply this habeas-first rule under
Preiser is whether success in litigation such as the Section 1983 suit brought
here “would necessarily demonstrate the invalidity of confinement or its
duration.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). The Court in Dotson
rejected the Government’s Preiser argument and allowed a Section 1983 suit
to proceed because the challenge to parole-eligibility decisions would not mean
immediate release but at most a new eligibility review. Id. at 82.
Of relevance as well is Gerstein, 420 U.S. 103. There, pretrial detainees
brought a Section 1983 action requesting declaratory and injunctive relief that
they receive a probable-cause-determination hearing. Id. at 107 n.6. The
Court held that Preiser did not bar their Section 1983 action because they did
not clearly ask for release from state custody. Id.
The Plaintiffs here assert that they are not first required to bring a
habeas claim because they are seeking new procedures and protections for the
decisions judges make on whether and on what terms to allow release of
arrestees. Their argument seems sound, but the District Court Judges insist
that the complaint filed in this case actually seeks release for those whose
indigency makes them unable to provide the amount of bail that is required.
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Among the claims in the complaint is that the Plaintiffs, after their initial
arrest, remain “in jail solely because they cannot afford to make a monetary
payment.” The District Court Judges’ argument is that because what the
Plaintiffs want fixed is the only thing keeping them in jail, Preiser requires
habeas first. To distinguish Dotson, these judges argue that the Plaintiffs seek
far more than just “a new parole hearing at which [state] parole authorities
may, in their discretion, decline to shorten” the prison term, Dotson, 544 U.S.
at 82; they are after an elimination of cash bail.
Though the district court’s order here did not eliminate cash bail, the
District Court Judges argue that the Plaintiffs sought that relief in their
complaint, activating the requirement that the claim first be made in a state
habeas filing. These judges quote a Supreme Court opinion which held that,
because a release from state custody “was neither asked [for by those plaintiffs]
nor ordered” by the district court, Preiser was inapplicable. Gerstein, 420 U.S.
at 107 n.6. From that, these Defendants argue that what is asked for in the
complaint controls.
We distill these assertions as follows. This suit from its inception has
challenged the alleged lack of individualized analysis of each detainee’s
relevant circumstances and any resulting necessity for cash bail. The absence
of those individualized determinations means cash bail often was required
though unnecessary. The requested remedies did not include the absolute
abolition of cash bail. Instead, the Plaintiffs sought a declaratory judgment
and injunctive relief based on the claim that “wealth-based detention that
keeps them in jail because they cannot afford to pay a secured financial
condition of release” is unconstitutional until it includes “an inquiry into or
findings concerning ability to pay,” a “consideration of nonfinancial
alternatives,” and the making of “findings that a particular release condition

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— or pretrial detention — is necessary to meet a compelling government
interest.”
We conclude that the declaratory judgment and the injunction that were
granted do not present a Preiser issue. The relief of a more robust hearing
would not necessarily lead to “immediate release from that confinement or the
shortening of its duration.” Preiser, 411 U.S. at 489. Requiring that a judicial
officer consider whether the detainee can afford money bail and, if not, whether
there is some option for release short of money bail that would protect the
County’s legitimate interests does not short circuit state habeas procedures.

III. The District Court Judges as defendants
We start our review of the District Court Judges’ appeal with an
argument made primarily by the County Court Judges, and directly addressed
by the District Court Judges only in a footnote in their reply brief. The
argument is that because the claimed policies at issue involve pretrial bail
decisions, they are judicial in nature. See Davis, 565 F.3d at 226. When judges
are acting in their judicial capacity, the county in which they serve “may not
be held liable for those acts.” Id. at 227. Binding circuit precedent settles this
issue. In our recent opinion resolving similar issues regarding judges in Harris
County, we held that each of those judges was not “acting in his or her judicial
capacity to enforce state law’’ when preparing and implementing the bail
schedules. ODonnell I, 892 F.3d at 155 (quoting Johnson v. Moore, 958 F.2d
92, 94 (5th Cir. 1992)). We see no meaningful distinction on this point between
the actions of the judges in Harris County and those before us.
Next is another issue about standing. We have already resolved one
challenge to the Plaintiffs’ standing, namely that each Plaintiff no longer had
a claim against anyone regarding pretrial release by the time the suit was filed.

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That is not the only issue of standing, though.1 Another is whether the
Plaintiffs properly can seek to enjoin the District Court Judges in their official
capacity if the Plaintiffs’ claims against them fail to meet the causal-connection
and redressability elements for the existence of a case or controversy, citing
such caselaw as Lujan v. Defenders of Wildlife, 504 U.S. at 560–61. The
District Court Judges assert that they are incapable of redressing the
Plaintiffs’ injury for a number of reasons, including that the District Court
Judges have no power to direct Magistrate Judges to set bail at any amount
for indigent defendants nor to intervene in ongoing proceedings before
Magistrate Judges. The District Court Judges also say they cannot “acquiesce”
in Magistrate Judges’ bail decisions because the District Court Judges lack
jurisdiction under Texas law. Further, Magistrate Judges retain exclusive
jurisdiction until the arrestees are formally charged. See Ex parte Clear, 573
S.W.2d 224, 229 (Tex. Crim. App. 1978) (en banc); see also TEX. CONST. art. V,
§ 12; TEX. CODE CRIM. PRO. arts. 2.09, 17.03(a), 17.15.
Another argument with related analysis is that the suit against the
District Court Judges cannot proceed because, as state officials, sovereign
immunity bars suit against them. The District Court Judges, of course, must
be state officers for the State’s immunity to apply. The district court in this
case concluded they were county officers for the purposes of Section 1983 and
municipal liability. The court relied on ODonnell I. District Court Judges were
not parties there, but the court held that County Court Judges were county
officers. ODonnell I, 892 F.3d at 155–56. We will discuss the County Court
Judges later. We now analyze the issue as to the District Court Judges.

1The District Court Judges argued in their opening brief on appeal that the Plaintiffs
lacked standing to enjoin them in their individual capacity. The Plaintiffs conceded this
point.
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Different analyses apply under Section 1983 and under state sovereign
immunity when determining whether an official acts for the State or for the
County. For Section 1983, whether a government official is acting for a state
or a county is a question of state law as it pertains to the precise function at
issue. McMillian v. Monroe Cnty., 520 U.S. 781, 785 (1997). For state
sovereign immunity, though, when determining whether a suit against a
governmental agency or official is actually a suit against the State, we apply
these factors:

1. Whether the state statutes and case law view the agency as an
arm of the state;
2. The source of the entity’s funding;
3. The entity’s degree of local autonomy;
4. Whether the entity is concerned primarily with local as opposed
to statewide problems;
5. Whether the entity has the authority to sue and be sued in its
own name; and
6. Whether the entity has the right to hold and use property.
Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir. 1999). We need not
go through the factors here, as the court has already held that Texas criminal
“district judges . . . are undeniably elected state officials” for purposes of state
sovereign immunity. Clark v. Tarrant Cnty., 798 F.2d 736, 744 (5th Cir. 1986)
(citing Holloway v. Walker, 765 F.2d 517 (5th Cir. 1985)).
Other relevant authority establishes that, at least for purposes of
appointing counsel for indigent criminal defendants, the judges of the state
district courts in Texas act for the State. See Clanton v. Harris Cnty., 893 F.2d
757, 758 (5th Cir. 1990). As to issuing bail schedules, we see nothing to
suggest, even though these District Court Judges serve only within the
geographical boundaries of Dallas County, that deciding on bail should be seen
as a county function. For example, nothing in the briefing supports that Texas

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has given counties, and specifically Dallas County, authority over district
courts located in their counties. We distinguish another circuit’s case in which
it was shown that Georgia by statute expressly delegated to cities the authority
to set bail policy. Walker v. City of Calhoun, 901 F.3d 1245, 1255–56 (11th Cir.
2018). Thus, in that case, a city was a proper defendant. Id. No comparable
delegation has been shown here.
It is true that district courts come in different shapes and sizes across
Texas. For our understanding of the structure, we rely on information found
on the official Texas Judicial Branch website, which states:
The district courts are the trial courts of general jurisdiction
of Texas. The geographical area served by each court is
established by the Legislature, but each county must be served by
at least one district court. In sparsely populated areas of the State,
several counties may be served by a single district court, while an
urban county may be served by many district courts.2
A document on that website states that the District Courts in 46 counties
serve only one county, but in those counties are multiple separately numbered
District Courts with separate judges; the remaining 208 counties are grouped
into 57 District Court districts.3 If there is any error in our understanding of
the numbers, the basic point is unassailable that a large number of Texas
District Courts serve multiple counties. We do not think it is rational to
consider the single-county District Courts when making policy are acting for
their single counties, but if multi-county District Courts established the same
bail schedule, they would, anomalously, be policymakers for the State. If it is
instead argued that these multi-county judges act as policymakers for their
multiple counties, that is an unusual concept in municipal-liability law. Such

2 About Texas Courts, at https://www.txcourts.gov/about-texas-courts/trial-courts/.
3 Complexities in the Geographical Jurisdictions of District Courts, at
https://www.txcourts.gov/media/1444864/jurisdictional-overlap-district-courts-oct-2019.pdf;
see also District Judges, at https://www.txcourts.gov/media/1443296/district_judges-1.pdf.
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multi-county trial courts seem akin for this analysis to the multi-county state
courts of appeals, which surely are not policymakers for their many counties
but instead are within the state court system no matter in what capacity the
judges act. The fact that the Dallas County District Courts serve within only
one county is of no consequence. What matters is that these courts serve as
the foundation, hence a component, of the statewide court system.
Making a similar point, the United States Supreme Court held that bail
hearings in Texas start the adversary judicial proceeding. Rothgery v. Gillespie
Cnty., 554 U.S. 191, 213 (2008). That adds to the evidence that the decisions
here in question were made by officers of the state judicial system.
We conclude that state District Court Judges act for the State when
acting on bail. The district court in this case, at least for purposes of Section
1983 and not sovereign immunity, held that these judges were county officers.
The district court relied on our ODonnell rulings about those county court
judges and found no need to engage in independent reasoning even about this
additional category of judges. With respect, the District Courts are not county
courts, and their judges are not county officers when acting regarding bail. We
also conclude that because the District Court Judges are state officers, so are
the Magistrate Judges that the District Court Judges appoint and to whom
they provide guidance such as with the bail schedule.4

4 ODonnell I dealt with a different category of ancillary judicial officers, namely
“Hearing Officers.” 892 F.3d at 152. Those hearing officers filled positions statutorily created
specifically for Harris County; they were appointed by a nine-member board with the consent
of the Harris County Commissioners Court. TEX. GOV’T CODE § 54.852. The Magistrate
Judges who concern us are provided for in a statute applicable only to Dallas County, which
states every district court judge there “may appoint a magistrate to perform the duties
authorized by this subchapter.” Id. § 54.301(a). Consistent with our reading of that
subchapter of the Code, the County here states the Magistrate Judges report only to the
District Court Judges.
Though the Dallas Commissioners Court must approve the appointment of
Magistrates, we conclude that the close relation between the Magistrates and the District
Judges who refer proceedings to them prevents them from being county officers.
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Notwithstanding these conclusions, victory or defeat for the District
Court Judges on the issue of their amenability to suit cannot yet be declared.
Because this part of the suit is against state judges in their official capacity, it
is in effect a suit against the State of Texas itself. A high hurdle now looms for
the Plaintiffs. Generally, “Eleventh Amendment sovereign immunity bars
private suits against nonconsenting states in federal court.” City of Austin v.
Paxton, 943 F.3d 993, 997 (5th Cir. 2019). That immunity “also prohibits suits
against state officials or agencies that are effectively suits against a state.” Id.
One possibly relevant exception here (there also is an irrelevant one) is for
“suits for prospective . . . relief against state officials acting in violation of
federal law.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). The
origin of this exception is Ex parte Young, 209 U.S. 123 (1908).
Under Ex parte Young, a case can proceed against individual state
officials named in their official capacities when the claim is for an ongoing
violation of federal law, but the relief sought must be prospective. Verizon Md.
Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). Only a plaintiff’s
allegations are to be considered, not what was later proven or the relief that
was granted: we are to conduct a “straightforward inquiry into whether [the]
complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.” Id. (alteration in original) (quoting Idaho v.
Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J., joined by
Scalia and Thomas, JJ., concurring in part and concurring in judgment)). Also,
the prospective relief must be equitable only, such as a declaratory judgment
or an injunction. Williams ex rel. J.E. v. Reeves, 954 F.3d 729, 736 (5th Cir.
2020).
The District Court Judges argue that no prospective relief here is needed
or available against them because the bail schedule those judges earlier put in
place is not the problem. Rather, the source of the claimed harm is the failure
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of Magistrate Judges to utilize the discretion the District Court Judges gave
them. These Defendants take the point further by saying the Plaintiffs are
seeking to have them “affirmatively police the Magistrate Judges in an attempt
to protect arrestees from alleged constitutional violations by those county-
level” actors. This, they argue, is not a claim of an ongoing violation on their
part.
Before proceeding further, we inject a related argument made by the
District Court Judges. They argue the Plaintiffs have no standing due to the
absence of a case or controversy, and that is shown by the absence of causation
and redressability. The basic point is that all the District Court Judges did
was establish a discretionary schedule for setting bail. Once that was in place,
the individual decisions by the actual bail-setters, who are the Magistrate
Judges, create the claimed injury. The District Court Judges, in turn, cannot
control those individual decisions. Among the authorities the District Court
Judges say supports their argument is one in which this court stated that
because the “defendants have no powers to redress the injuries alleged, the
plaintiffs have no case or controversy with these defendants that will permit
them to maintain this action in federal court.” Okpalobi v. Foster, 244 F.3d
405, 427 (5th Cir. 2001) (en banc).
The argument that there is no case or controversy intersects with the
Eleventh Amendment issue. “Case or controversy” presents questions of
traceability and redressability. The Eleventh Amendment issue concerns
similar concepts because it is founded on whether what the District Court
Judges are doing now is the cause of any injury to the Plaintiffs, and whether
prospective relief would play a part in ameliorating the claimed injury. The
fact that the claimed genesis of the current injury was a prior District Court
Judge’s order does not control on the retrospective versus prospective analysis.
Indeed, in a case dealing with events that occurred in the Nineteenth Century,
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we recently held that so “long as the claim seeks prospective relief for ongoing
harm, the fact that a current violation can be traced to a past action does not
bar relief under . . . Young.” Williams, 954 F.3d at 738.
An earlier opinion agreed with our sense that the analysis for the Ex
parte Young exception and for standing have “significant overlap.” Air Evac
EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 520 (5th
Cir. 2017). Consequently, the following discussion of standing and of the
Eleventh Amendment will at times overlap.
We look to the complaint for the relevant allegations. The Plaintiffs
assert that the bail schedules “promulgated” by the District Court Judges
“require Magistrates to impose secured money bail in every case,” and based
on “policy and practice, the Magistrates interpret the . . . bail schedule to
require secured money bail in every case.” The bail schedule was an exhibit to
the complaint, so limiting the complaint’s allegations is this language in the
schedule: “These are recommended amounts. Bonds may be set higher or lower
than the amounts shown if justified by the facts of the case and the
circumstances of the defendant.”
The complaint sought to show that the District Court Judges are
responsible for the current problems by alleging that each judge is aware
(1) “that secured money bail amounts are imposed in every case without an
inquiry or findings concerning ability to pay and without consideration of or
findings concerning alternatives,” (2) “of the Magistrates’ systemic failure to
consider ability to pay,” and (3) “of the Magistrates’ systemic failure to consider
non-financial alternative conditions, or to make findings concerning ability to
pay or the necessity of any particular condition of release to meet a specific
government interest.” The concept for both causation and redressability
inherent in these claims, though in different ways, is that of acquiescence. The
complaint also explicitly made that claim.
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In support of their divergent positions, each party quotes a Supreme
Court opinion explaining that the injunction may be granted if it would remove
an “absolute barrier” to vindicating the rights at issue. Village of Arlington
Heights v. Metro. Hous. Dev’t Corp., 429 U.S. 252, 261 (1977). That reference,
though, followed the Court’s explanation that a plaintiff must have been
“injured by the challenged action of the defendant,” though the “injury may be
indirect” so long as it is “fairly traceable to the defendant’s acts or omissions.”
Id. In Arlington Heights, there was “little doubt” that those requirements were
met because the defendant’s actions were an “absolute barrier” to the plaintiff’s
exercise of its rights. Id. Limited, i.e., not absolute, barriers may also suffice
if injury resulting from the challenged action is shown.
Here, the Plaintiffs are not seeking an injunction to prevent the
enforcement of the bail schedule itself but only to stop the allegedly rigid
application of it. A principal assertion by the District Court Judges is that a
Magistrate Judge has exclusive jurisdiction over the arrestee at the time that
the decision on bail is being made. See Guerra v. Garza, 987 S.W.2d 593, 593–
94 (Tex. Crim. App. 1999). The District Court Judges argue there is nothing
they can do about the failure of a Magistrate Judge to apply discretion as to
any particular arrestee. The Plaintiffs view the District Court Judges as
complicit in the operation of cash-bail detention because, according to the
complaint, they know of its allegedly unconstitutional operation but “have left
the bail schedules in place, and have taken no formal action to correct the
widespread practices that result in wealth-based detention.”
In determining whether these allegations allow suit, we consider that
the request for injunctive relief must be brought against a state official acting
in violation of federal law who has a “sufficient ‘connection’ to enforcing an
allegedly unconstitutional law.” In re Abbott, 956 F.3d 696, 708 (5th Cir. 2020).
We have not resolved exactly what constitutes a sufficient connection to the
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enforcement of the challenged law. City of Austin, 943 F.3d at 999. An en banc
plurality of our court explained that “the officers [must] have ‘some connection
with the enforcement of the act’ in question or be ‘specially charged with the
duty to enforce the statute’ and be threatening to exercise that duty.”
Okpalobi, 244 F.3d at 414–15 (plurality op.). What remained unsettled after
Okpalobi is whether Ex parte Young requires only “some connection” or a
“special relationship” to the challenged law. K.P. v. LeBlanc, 627 F.3d 115, 124
(5th Cir. 2010).
More recent cases have consistently required the plaintiff to show that
the defendant has “the particular duty to enforce the statute in question and a
demonstrated willingness to exercise that duty.” Morris v. Livingston, 739
F.3d 740, 746 (5th Cir. 2014) (quoting Okpalobi, 244 F.3d at 416). Meanwhile,
a “general duty to see that the laws of the state are implemented” is not
enough. Id. (quoting Okpalobi, 244 F.3d at 416). “If the official sued is not
‘statutorily tasked with enforcing the challenged law,’ then the requisite
connection is absent and ‘our Young analysis ends.’” In re Abbott, 956 F.3d at
709 (quoting City of Austin, 943 F.3d at 998). Further, enforcement “typically
involves compulsion or constraint.” K.P., 627 F.3d at 124. In sum, our
precedents show, on one end of the spectrum, that a concrete statutory duty to
enforce the challenged law will invoke the Ex parte Young exception to
sovereign immunity. On the other end, the Ex parte Young exception will not
apply to a defendant who has neither “some connection” nor a “special
relationship” to the enforcement of the challenged law.
We conclude that the District Court Judges lack a sufficient connection
to the enforcement of the felony bail schedules. The District Court Judges
promulgated the bail schedule used to set bail for felony arrestees. That alone
is not enough to satisfy Ex parte Young’s requirements.

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We have held that a governor’s promulgation of an executive order was
not sufficient for Ex parte Young because the authority “to issue, amend, or
rescind an Executive Order ‘is not the power to enforce it.’” Mi Familia Vota v.
Abbott, 977 F.3d 461, 467 (5th Cir. 2020). Similarly, the District Court Judges’
promulgation of the bail schedule does not equate to enforcement of it. Instead,
enforcement of the bail schedules falls on the Magistrate Judges. Under Texas
law, “[t]he amount of bail to be required in any case is to be regulated by the
court, judge, magistrate or officer taking the bail.” TEX. CODE CRIM. PRO. art.
17.15. In Dallas County, after an arrest is made, the arrestee appears before
a Magistrate Judge for arraignment. Conditions of release, such as bail, are
set during arraignment. The statutory duty to “regulate,” i.e., enforce, bail
therefore falls on Magistrate Judges because they are the officials “taking the
bail.” See id. The Magistrate Judges have a sufficient connection to invoke
the Ex parte Young exception to sovereign immunity because they have a
concrete statutory duty to enforce the challenged law. As for the District Court
Judges, though, nothing in the record suggests that District Court Judges ever
preside over arraignment or otherwise set bail or enforce the bail schedules.
As a result, the Plaintiffs have neither standing to sue the District Court
Judges nor the ability to show a sufficient connection between the District
Court Judges and enforcement of the felony bail schedule sufficient to satisfy
Ex parte Young. Our principles of standing and the Eleventh Amendment
therefore bar suit against the District Court Judges.

IV. Dallas County as a defendant
The County argues that these pretrial bail decisions are judicial in
nature and cannot create liability for the County. We have already rejected
that issue in our discussion of whether the District Court Judges are proper
defendants. What we still need to decide is whether the Dallas County Court
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Judges were State or County actors in doing so. Our ODonnell I opinion held
that Harris County Criminal Court Judges acted for the county, but there are
some differences in the statutory authority for the two counties. We need to
look into that authority and not automatically apply our ODonnell I ruling.
Generally, county liability requires that “(1) an official policy
(2) promulgated by the [county] policymaker (3) was the moving force behind
the violation of a constitutional right.” Peterson v. City of Fort Worth, 588 F.3d
838, 847 (5th Cir. 2009). The United States District Court in this case simply
adopted the holding in the earlier Harris County case that County Court
Judges are county policymakers when implementing a bail schedule. ODonnell
I, 892 F.3d at 155–56.
We look to ODonnell I to decide if there are distinctions that could make
a difference as to the Dallas County Court Judges. Our analysis was this:
Though a judge is not liable when ‘‘acting in his or her
judicial capacity to enforce state law,’’ Moore, 958 F.2d at 94, we
agree with the district court that the County Judges are
policymakers for the municipality. Texas law explicitly
establishes that the Judges are ‘‘county officers,’’ TEX. CONST.
art. V § 24, imbued with broad authority to promulgate rules that
will dictate post-arrest policies consistent with the provisions of
state law, TEX. GOV’T CODE § 75.403(f).
Id. at 155. Thus, a provision of the state constitution and a statute are the
authority. We examine each authority.
The cited part of the Texas constitution says this:
County Judges, county attorneys, clerks of the District and County
Courts, justices of the peace, constables, and other county officers,
may be removed by the Judges of the District Courts for
incompetency, official misconduct, habitual drunkenness, or other
causes defined by law, upon the cause therefor being set forth in
writing and the finding of its truth by a jury.
TEX. CONST. art. V, § 24. The Plaintiffs do not dispute the Defendants’
explanation that the “County Judges” referenced at the beginning refers to the
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single chief administrative officer for each county and not the multiple county
judges at issue here. Just a few sections earlier in the constitution, the County
Judge position is created: “There shall be . . . elected in each county, by the
qualified voters, a County Judge, who shall be well informed in the law of the
State.” Id. art. V, § 15. That is not one of the judges involved here.
Though the “County Judge” who serves as the chief executive for the
county is the only judge mentioned in Article V, Section 24, that section also
refers to “other county officers.” There is Texas caselaw that starts by
observing that in “a general sense, and perhaps for special purposes, all the
courts named [in various statutes] are state courts, and their presiding judges
state officers.” State ex rel. Peden v. Valentine, 198 S.W. 1006, 1008 (Tex. App.
1917—Fort Worth 1917, writ ref’d). Even so, that same court held “that the
judge of the county court of Tarrant county for civil cases is a county judge, a
county officer as contradistinguished from a district judge or a state officer.”
Id. In a later decision, the state supreme court held that the judges of a court
created by the legislature for a single county “are county officers, and,
therefore, can be removed only in the manner prescribed by [Section 24] of the
Constitution.” Jordan v. Crudgington, 231 S.W.2d 641, 646 (Tex. 1950).
We conclude from all this that the Dallas County Court Judges involved
in this litigation are county officers — at least for some purposes. As the
Supreme Court stated, though, the issue is not whether the official acts for the
State or the County “in some categorical, ‘all or nothing’ manner,” but instead
for whom that official was acting on the particular issue in question.
McMillian, 520 U.S. at 785. Thus, we do not find the cited section of the
constitution dispositive. What in “particular” these judges did was to
promulgate their own bail schedule. We find it necessary to go further than
the broad language of the Texas constitution.

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The other authority used in ODonnell I for concluding that the Harris
County judges were acting for the county in a policymaking role was Texas
Government Code § 75.403(f). ODonnell I, 892 F.3d at 155. That provision
allows adoption of “rules consistent with the Code of Criminal Procedure, 1965,
and the Texas Rules of Civil Procedure for practice and procedure in the
courts.” TEX. GOV’T CODE § 75.403(f). Section 75.403 is titled “Presiding Judge
for Certain Harris County Courts,” and by its own terms applies only in Harris
County. We could find no comparable statute for Dallas County or for the
county courts in Texas generally.
The only general rule-making authority we discovered permits “district
and statutory county court judges in each county [to], by majority vote, adopt
local rules of administration.” TEX. GOV’T CODE § 74.093(a). The authority
seems limited to administrative matters such as assignment of cases,
designation of court divisions, frequency of holding court, division of caseloads,
and time away from court for judicial education, vacation, and similar reasons.
Id. § 74.093(b)(1)–(5). Additional subsections set out additional subjects, but
none that seem related to prisoners or bail.
We are also directed to our own authority that at least when a local Texas
state judge is acting in a judicial capacity, the judge “is not considered a local
governmental official whose actions are attributable to the county.” Davis, 565
F.3d at 227 (quoting Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995)). Though
this specific precedent was not considered in the ODonnell opinions, this court
held that bail schedules were not promulgated by judges acting in a judicial
capacity. ODonnell I, 892 F.3d at 155–56.
If our analysis were completely de novo, we would hesitate to say any of
that makes the County Court Judges policymakers for the County in matters
of bail. The County at least has a plausible argument that the function at issue
is part of the administration of the state judicial system. Specifically, it
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contends that since the Supreme Court has already held that bail hearings in
Texas start the adversary judicial proceeding, then the policy at issue here,
adherence to a bail schedule, relates to the administration of judicial
proceedings. Rothgery, 554 U.S. at 213. Misdemeanor defendants convicted in
a county court may appeal to a Texas court of appeals. See TEX. CODE CRIM.
PRO. art. 44.02. Further, any criminal defendant may “petition the Court of
Criminal Appeals for review of the decision of a court of appeals.” Id. art.
44.45(b)(1). That progression of convictions from county court through the
state court system does show the originating court is also part of that system.
Of course, the question here is whether these judges acted as policymakers for
the County or for the State in adopting the bail schedule.
Regardless of any argument that County Court Judges, like the District
Court Judges, should be considered part of the state judicial system, we do not
see a distinction between the judges for the Dallas County Court and those for
the Harris County Criminal Court in ODonnell that would justify our reaching
a different conclusion. Having addressed some differences that do not
distinguish, we conclude that ODonnell I applies, and the Dallas County Court
Judges acted for their county. We are not certain of the source of their
authority to make policy, but it is clear that the County Court Judges
established a schedule for bail to be used for those charged with misdemeanors.
We conclude that is policymaking for the County under ODonnell I.

V. Enjoining the Dallas County Sheriff
The district court determined that the Dallas County Sheriff was not a
policymaker for any of the policies being challenged in this case, and therefore
she was not a proper defendant for a municipal liability claim under Section
1983. Nevertheless, the court stated in the injunction that the “Sheriff is thus
authorized to decline to enforce orders requiring payment of prescheduled bail
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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.” In other words,
though the Sheriff had been determined not to be a proper defendant for some
purposes, the court’s injunction purported to extend authority to the Sheriff
not to enforce noncompliant orders setting bail.
The district court relied on this court’s conclusion in the related Harris
County appeal that “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.’” ODonnell I, 892 F.3d at 156.
The Plaintiffs are little concerned with the finding that the Sheriff is not a
policymaker but present several arguments that she should be a defendant and
subjected to compulsion by the injunction.
We again look to the precedential ODonnell opinions for any effect on our
analysis of the issue. We initially concluded in that appeal that the Harris
County Sheriff was not a policymaker for the decisions creating
unconstitutional procedures for determining post-arrest detention and that the
Sheriff had to enforce the orders regarding detainees. ODonnell, 882 F.3d at
538. On appeal, the Plaintiffs find significance in two revisions we made on
rehearing. One is our insertion of the following italicized phrase: “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.” Compare id., with ODonnell I, 892 F.3d at
156. The other change was that our first opinion concluded that “the County
Sheriff cannot be sued under § 1983.” ODonnell, 882 F.3d at 538. We
rephrased on rehearing: “the County Sheriff does not qualify as a municipal
policymaker under § 1983.” ODonnell I, 892 F.3d at 156.

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We do not explore all the possible interpretations of the removal of
certain language in ODonnell. Certainly, ODonnell I made precedential
holdings that the Harris County Sheriff was not a policymaker for the issues
regarding bail presented and, thus, also not a proper defendant for imposing
municipal liability. On the other hand, ODonnell I did not hold that the Sheriff
is not a proper party for any purpose in proceedings such as those.
In this Dallas County case, the district court held that the Sheriff was
not a policymaker and thus not a proper defendant for the Section 1983 claim.
The district court, though, did not yet rule on the motion to dismiss the Sheriff.
By extending authority to the Sheriff in the injunction to refuse to honor
certain court orders, the district court considered it worthwhile to involve the
Sheriff in some fashion in the injunctive relief.
Few circuit court opinions have reviewed injunctions against a sheriff to
prevent carrying out a judge’s unconstitutional orders. We see no basis,
though, to conclude that enjoining a sheriff from enforcing unconstitutional
orders depends on whether a sheriff is a policymaker for purposes of municipal
liability. Some legal lagniappe came the Plaintiffs’ way after oral argument
that allowed their identifying in an appropriate Rule 28(j) letter that the Sixth
Circuit held a county sheriff in Tennessee could be enjoined so as to bar that
official from “detaining any person on misdemeanor probation . . . based on a
secured financial condition of release.” McNeil v. Cmty. Prob. Servs., LLC, 945
F.3d 991, 993 (6th Cir. 2019) (alteration in original). That court identified two
issues within the question of whether Ex parte Young would allow the sheriff
to be enjoined. First was whether the sheriff was a state or a county official.
Id. at 994–95. Second, if the sheriff was a state official, then the application of
Ex parte Young had to be analyzed. Id. at 994–97.
In discussing the significance of characterizing the sheriff as either a
state official or a county official, the court recognized that the issue ultimately
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did not affect the appeal. Id. at 994–95. If a state official, the sheriff could be
enjoined pursuant to Ex parte Young. Id. at 994. If a county official, then
“neither sovereign immunity, qualified immunity, nor any other defense
stands in the way at this stage of the case.” Id. at 994–95.
The McNeil court held that the sheriff there was acting as a state official.
Id. at 995. Determinative was the fact that the sheriff was enforcing state law
when he undertook the challenged action. Id. “When a county official commits
an allegedly constitutional violation by ‘simply [] complying with state
mandates that afford no discretion, they act as an arm of the State,’ not the
county.” Id. (alteration in original) (quoting Brotherton v. Cleveland, 173 F.3d
552, 566 (6th Cir. 1999) (analyzing whether county official was proper
defendant under Section 1983)).5 Because he had no authority to release
probationers unless notified by a county judge, he was complying with
Tennessee mandates that afforded him no discretion. Id. Accordingly, the
court held the sheriff was a state official when “detaining probationers under
judge-set bail amounts.” Id. This meant that Ex parte Young would control
whether an injunction against the sheriff was proper.
The McNeil court then addressed Ex parte Young. Id. The injunction
allowed “the county and sheriff to enforce bail accompanied by evidence of the
probationer’s ability to pay, the necessity of detention, and the alternatives to
bail.” Id. at 993. In the Sixth Circuit, Ex parte Young has been interpreted to
require that a suit be “against a public official ‘actively involved with
administering’ the alleged violation.” Id. at 995 (quoting Doe v. DeWine, 910
F.3d 842, 849 (6th Cir. 2018)). Because “Tennessee statutes command that

5 Tennessee law required the sheriff to “‘obey the lawful orders and directions of the
court[s]’ as well as to ‘[t]ake charge and custody’ of the county jail ‘and of the prisoners there
in . . . and keep them . . . until discharged by law.’” Id. (alterations in original) (quoting TENN.
CODE ANN. § 8-8-201(a)(2)(A), (a)(3)).
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involvement when they place the sheriff in charge of keeping detainees in the
county jail,” the sheriff could be enjoined under Ex parte Young. Id.
The Sixth Circuit rejected the sheriff’s counterarguments. The sheriff
argued that the judges’ bail-settings were the real violation rather than his
detention of probationers. Id. Accordingly, the plaintiffs should have sued the
judges themselves. Id. at 996. The court explained “that an alleged violation
may involve two actors and the potential immunity of one does not necessarily
free the other from suit.” Id. at 995. The plaintiffs were also free to sue the
judges, but that did not prevent them from suing the sheriff. Id. at 996. As
the enforcer of the order retaining a probationer in jail absent providing bail,
the sheriff was sufficiently involved to be enjoined. Id.
In this case, two responses to the Plaintiffs’ Rule 28(j) letter about
McNeil were filed, with a particular focus on statements in the opinion about
the possibility of absolute immunity of the judges involved. The Sixth Circuit
recognized that the possible immunity of one defendant does not preclude suit
against another. Id. at 995. Further, we have already held in our related
ODonnell litigation that, because the judges’ adoption of bail schedules for
general application made them policymakers as to that act, the judges’ conduct
fell outside their judicial capacity. ODonnell I, 892 F.3d at 155.
Just as with the sheriff in the Sixth Circuit opinion, we conclude that the
Plaintiffs can sue the Sheriff here regardless of whether she is considered a
state or a county official. See McNeil, 945 F.3d at 994–95. If the Sheriff is a
county official and also is not acting as “an arm of the state,” then the Eleventh
Amendment does not apply at all. See Cutrer v. Tarrant Cnty. Loc. Workforce
Dev. Bd., 943 F.3d 265, 269–70 (5th Cir. 2019). Further, regardless of whether
the Sheriff is a proper defendant for purposes of creating municipal liability
under Section 1983, the Sheriff as a county official would nonetheless remain
amenable to an injunction that prevents her enforcement of measures violative
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of federal law. Likewise, even if the Sheriff is acting as a state official and the
Eleventh Amendment therefore might bar suit against her, the Ex parte Young
exception permits enjoining her. See McNeil, 945 F.3d at 994–95. Neither the
Plaintiffs nor the Sheriff meaningfully briefed this issue. Nevertheless, what
follows explains that even if the Eleventh Amendment applies to the Sheriff
acting as an arm of the State of Texas, she is not protected by sovereign
immunity as to these claims.
To summarize our discussion when evaluating the Ex parte Young
exception for its application to the District Court Judges, suits for injunctive
or declaratory relief may be brought against a state official acting in violation
of federal law if there is a “sufficient ‘connection’ to enforcing an allegedly
unconstitutional law.” In re Abbott, 956 F.3d at 708. “If the official sued is not
‘statutorily tasked with enforcing the challenged law,’ then the requisite
connection is absent and ‘our Young analysis ends.’” Id. at 709 (quoting City of
Austin, 943 F.3d at 998). A concrete statutory duty to enforce the challenged
action is sufficient to invoke the Ex parte Young exception to sovereign
immunity. See Morris, 739 F.3d at 746.
In ODonnell I, we identified several relevant statutory authorities
governing county sheriffs in Texas to show that they were not municipal
policymakers. ODonnell I, 892 F.3d at 156. We explained that a Texas “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.’” Id. Accordingly, sheriffs in Texas are not authorized “to
avoid executing judicial orders imposing secured bail by unilaterally declaring
them unconstitutional.” Id.
In the Ex parte Young context, those same statutes show that the sheriff
has a statutory duty to enforce judicially imposed bail schedules. Under Texas
law, sheriffs are legally obligated to “execute all lawful process issued to the
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officer by any magistrate or court.” TEX. CODE CRIM. PRO. art. 2.13. If a sheriff
refuses or neglects to execute lawful process, the sheriff is “liable to a fine for
contempt . . . at the discretion of the court.” Id. art. 2.16. Texas law also
provides that a prisoner sent to jail by the courts “shall be placed in jail by the
sheriff.” Id. art. 2.18. The sheriff cannot release the prisoner from jail except
to “give the person arrested a reasonable time to procure bail.” Id.
Consequently, the sheriff is statutorily prohibited from releasing an arrestee
who cannot afford to pay the bail amount. Id.
The claim in the present case is that the Sheriff enforces the orders
entered by judges that require cash bail by leaving the arrestees in jail absent
bail being provided. The complaint states: “After arraignment, the officers and
employees of the Sheriff’s Department are authorized by County policy to
accept money bail as predetermined by the schedule and to release arrestees
who pay money bail in accordance with the bail schedule.” Further, arrestees
who inform “the Sheriff’s deputies that they cannot afford to make the
monetary payment will be assigned to a housing unit and confined to a jail cell
after arraignment.” The Plaintiffs summarize the connection between the bail
decisions and the Sheriff’s actions this way:
The Magistrates’ custom of requiring secured money bail as
a condition of release in every case, the Judges’ acquiescence in
this custom, and the Sheriff’s policy of enforcing unconstitutional
orders conditioning release on a monetary payment cause systemic
and automatic wealth-based detention in Dallas County.
These allegations are sufficient to satisfy the requirements of Ex parte
Young. Texas statutes create concrete duties compelling the sheriff to enforce
the judicially imposed bail schedules. The Sheriff’s obligation to commit
indigent arrestees to jail under Article 2.18 of the Texas Code of Criminal
Procedure is surely “compulsion or constraint” of those arrestees. See K.P., 627
F.3d at 124. Thus, we agree with the analysis of the Sixth Circuit in McNeil,

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and similarly recognize that the Sheriff in this case carries out her statutory
duties under Texas law “by detaining arrestees in the county jail.” See McNeil,
945 F.3d at 996; TEX. CODE CRIM. PRO. art. 2.18. As in McNeil, if bail is
unconstitutionally required, the sheriff’s “constitutional violation is detention
on an improperly determined bail amount.” McNeil, 945 F.3d at 996.
Enjoining the Sheriff is therefore permissible under Ex parte Young. It
is argued that the desired injunction would require the Sheriff and her
deputies and staff to perform the equivalent of summary appellate review of
each detention order that required bail in order to decide whether it complied
with the injunction. The current injunction “authorized” the Sheriff “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.” It also provided that the Sheriff
“must treat the limitations period on . . . holds as beginning to run” at a
particular time.
The permissible limit of any injunction under Ex parte Young is set by a
legal fiction: “when a federal court commands a state official to do nothing more
than refrain from violating federal law, he is not the State for sovereign-
immunity purposes.” Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255
(2011) (emphasis added). Any injunction here against the Sheriff must be
constrained in that manner. We conclude that the present language of the
injunction is too imprecise, leaving the Sheriff in the equivalent position of an
appellate court reviewing the validity of bail orders. We invalidate the
language of the injunction as it applies to the Sheriff. Should a revised
injunction impose any duties upon that officer, the duties must be made as
objective and narrowly defined as possible.

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We disagree with the County Defendants that enjoining the Sheriff is an
invalid substitution for enjoining the appropriate actors, the judges. True,
Section 1983 has limits on actions against judges, but we have already held
that under ODonnell I, that barrier does not apply to the actions taken on bail
schedules such as those in this case. ODonnell I, 892 F.3d at 155. Because she
is “statutorily tasked with enforcing the challenged law,” the Sheriff when
enforcing state law would be a proper defendant under Ex parte Young. See In
re Abbott, 956 F.3d at 709. The district court has authority to order the Sheriff
to refrain from violating federal law when exercising a state statutory duty to
enforce the bail schedules. See TEX. CODE CRIM. PRO. arts. 2.13, 2.16, 2.18.

VI. Substantive-due-process claim
It has taken us a while, but we have finally arrived at our review of the
merits of the injunction. All parties have some objections, but the ODonnell
opinions foreclose most.
Our decisions as to bail for misdemeanor criminal arrestees in Harris
County resolved several issues. First, the county’s procedures violated the due-
process rights of the arrestees. ODonnell I, 892 F.3d at 161. Next, we applied
intermediate scrutiny to the equal-protection claim, concluding that “although
the County had a compelling interest in the assurance of a misdemeanor
detainee’s future appearance and lawful behavior, its policy was not narrowly
tailored to meet that interest.” Id. at 162. The interest protected was created
in part by the state constitution: “prisoners shall be bailable by sufficient
sureties.” Id. at 158 (quoting TEX. CONST. art. 1, § 11). The fact that it was a
state-created right did not leave the federal due-process interest to be resolved
afresh in the current case. “Liberty interests protected by the due process
clause can arise from two sources, ‘the Due Process Clause itself and the laws
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of the States.’’’ Id. at 157 (quoting Kentucky Dep’t of Corr. v. Thompson, 490
U.S. 454, 460 (1989)). The ODonnell0 due-process rulings apply here.
The current Plaintiffs want more. They claim, first, that they are
entitled to injunctive relief based on their fundamental right to be free from
wealth-based detention. Relatedly but separately, the Plaintiffs claim there is
a substantive-due-process right to pretrial liberty. It is argued that an arrestee
who cannot afford cash bail may not be incarcerated unless the Magistrate
Judge finds “that doing so is necessary to serve an important government
interest.” We will discuss some of the precedents that the Plaintiffs urge upon
us to determine if there is clarity to the right they assert.
The Plaintiffs do not have much authority directly on point, but they rely
on several precedents on related issues involving indigents in the criminal
justice system. The Plaintiffs characterize the caselaw as involving the
convergence of equal-protection and substantive-due-process principles that
prevents individuals from being “subjected to imprisonment solely because of
[their] indigency.” See Tate v. Short, 401 U.S. 395, 398 (1971). Many
precedents identify the rights of indigents in other situations, though not in
the context of bail for arrestees, but they are quite useful.
In Tate, an indigent was jailed because he could not pay a fine. The
Court held this was discrimination based on indigency that was
unconstitutional under the Equal Protection Clause. Id. at 397–98. The Court
relied on Williams v. Illinois, 399 U.S. 235 (1970). Id. at 398. In Williams,
“[t]he narrow issue raised [was] whether an indigent may be continued in
confinement beyond the maximum term specified by statute because of his
failure to satisfy the monetary provisions of the sentence.” Williams, 399 U.S.
at 236. The answer was “no.” Id. at 245. The Court took pains to limit its
holding, such as stating that the “fact that an indigent in a particular case may
be imprisoned for a longer time than a non-indigent convicted of the same
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offense does not, of course, give rise to a violation of the Equal Protection
Clause.” Id. at 243. The important point was that the maximum term was
extended solely due to indigency.
The final Supreme Court opinion in the Plaintiffs’ triad is Bearden v.
Georgia, 461 U.S. 660 (1983). That case involved the revocation of probation
of someone whose sentence included an obligation to pay a fine and restitution.
Id. at 662. The individual failed to make the required payments due to
indigency. The Court held that revocation of probation solely for that reason
violated “[d]ue process and equal protection principles [that] converge in the
Court’s analysis in these cases.” Id. at 665. The Court held that “in revocation
proceedings for failure to pay a fine or restitution, a sentencing court must
inquire into the reasons for the failure to pay.” Id. at 672. “If the probationer
could not pay despite sufficient bona fide efforts to acquire the resources to do
so, the court must consider alternate measures of punishment other than
imprisonment.” Id.
In Bearden, the Court said the question of whether there were
circumstances when the individual’s status as an indigent could be considered
when deciding whether to revoke probation was “substantially similar to
asking directly the due process question of whether and when it is
fundamentally unfair or arbitrary for the State to revoke probation when an
indigent is unable to pay the fine.” Id. at 666. In a footnote to that statement,
the Court referred to its “previously applied considerations of procedural and
substantive fairness to probation and parole revocation proceedings.” Id. at
666 n.7 (citing Morrissey v. Brewer, 408 U.S. 471 (1972)). “Only if alternate
measures are not adequate to meet the State’s interests in punishment and
deterrence may the court imprison a probationer who has made sufficient bona
fide efforts to pay.” Id. at 672. The Bearden Court explained that “[t]o do
otherwise would deprive the probationer of his conditional freedom simply
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because, through no fault of his own, he cannot pay the fine. Such a
deprivation would be contrary to the fundamental fairness required by the
Fourteenth Amendment.” Id. at 672–73.
Though none of this Supreme Court triad concerns bail, this court en
banc, writing before any of these Supreme Court opinions, held 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.’’ Rainwater, 572 F.2d at 1057. That decision
is our fullest explanation prior to the ODonnell opinions of issues similar to
those facing us now. We stated 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. Florida has a compelling interest in assuring the
presence at trial of persons charged with crime. Yet such
individuals remain clothed with a presumption of innocence and
with their constitutional guarantees intact.
Id. at 1056 (footnote omitted).
Our en banc court did not have the benefit of any of the opinions we have
discussed that address constitutional rights of those who have already been
convicted of an offense not to have their punishment increased as a result of
indigency. The basic dispute in Rainwater was whether new Florida rules
would invariably result in detaining indigents who could not afford money bail,
or would a rule requiring “‘all relevant factors’ be considered in determining
‘what form of release is necessary to assure the defendant’s appearance’” allow
indigents to be released? Id. at 1058. The constitutional standard against
which the likely results were measured was this: “in the case of an indigent,
whose appearance at trial could reasonably be assured by one of the alternate
forms of release, pretrial confinement for inability to post money bail would
constitute imposition of an excessive restraint.” Id. The Plaintiffs urge us to
find that these principles have been ignored in the injunction here.
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We considered Rainwater in our ODonnell opinions. We held that
Rainwater supported the district court’s conclusion that Harris County judges
were violating the constitution by basing the financial terms for release on
“predetermined amounts beyond a person’s ability to pay and without any
‘meaningful consideration of other possible alternatives.’” ODonnell I, 892
F.3d at 161 (quoting Rainwater, 572 F.2d at 1057). There was no implication
that the district court erred by not requiring more than a procedural remedy.
Rainwater itself was much about procedure: would the new Florida rules for
establishing the terms for release of arrestees lead to unconstitutional
incarceration? It required ‘‘meaningful consideration of other possible
alternatives” to money bail. Rainwater, 572 F.2d at 1057. We concluded that
the Florida procedures did not themselves indicate a likely failure to uphold
the rights of indigents. We interpret our ODonnell opinions to be making the
same conclusions about the Harris County injunction whose terms we
suggested. See ODonnell I, 892 F.3d at 164–66.
Finally, we discuss a more factually on-point decision than the Williams–
Tate–Bearden group. In the case, the Court confronted a facial challenge to
the federal Bail Reform Act that allowed detention of individuals pending trial
for certain serious offenses only “if the Government demonstrates by clear and
convincing evidence after an adversary hearing that no release conditions ‘will
reasonably assure . . . the safety of any other person and the community.’”
United States v. Salerno, 481 U.S. 739, 741 (1987) (quoting 18 U.S.C. § 3142(e)).
The Court stated: “‘substantive due process’ prevents the government from
engaging in conduct that ‘shocks the conscience,’ or interferes with rights
‘implicit in the concept of ordered liberty.’” Id. at 746 (quoting Rochin v.
California, 342 U.S. 165, 172 (1952) (“shocks”), and Palko v. Connecticut, 302
U.S. 319, 325–26 (1937) (“implicit”)).

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The Court did not make either characterization, i.e., “shock” or “implicit
rights,” central to its analysis. Instead, it focused on whether the Bail Reform
Act led to improper “punishment before trial.” Id. at 746–47 (quoting Bell v.
Wolfish, 441 U.S. 520, 535 (1979)). The Court concluded that detention under
the Act was not punitive but instead was regulatory. Id. at 747. We consider
the following especially informative:
As an initial matter, the mere fact that a person is detained
does not inexorably lead to the conclusion that the government has
imposed punishment. To determine whether a restriction on
liberty constitutes impermissible punishment or permissible
regulation, we first look to legislative intent. Unless Congress
expressly intended to impose punitive restrictions, the
punitive/regulatory distinction turns on “‘whether an alternative
purpose to which [the restriction] may rationally be connected is
assignable for it, and whether it appears excessive in relation to
the alternative purpose assigned [to it].’”
Id. at 746–47 (alterations in original) (citations omitted).
This punitive/regulatory dichotomy is central in the Court’s analysis.
The Court rejected arguments that the regulatory principle was being
stretched too far. Instead, the Court said it “cannot categorically state that
pretrial detention ‘offends some principle of justice so rooted in the traditions
and conscience of our people as to be ranked as fundamental.’” Id. at 751
(quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)). Though
recognizing “the importance and fundamental nature” of a right to liberty, the
Court summarized that its “cases hold [that] this right may, in circumstances
where the government’s interest is sufficiently weighty, be subordinated to the
greater needs of society.” Id. at 750–51.
Of significance, the Court held that the Bail Reform Act provided
“protections [that] are more exacting than those we found sufficient in the
juvenile context, and they far exceed what we found necessary to effect limited

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postarrest detention in Gerstein v. Pugh.” Id. at 752 (citations omitted). Thus,
what was approved in Salerno exceeded the constitutional minimum.
Some debate exists as to whether the Salerno Court was applying
heightened scrutiny to the detention of individuals before trial. We find
conflicting authority. The Plaintiffs favor a Justice Scalia opinion placing
Salerno within a
line of cases which interprets the Fifth and Fourteenth
Amendments’ guarantee of “due process of law” to include a
substantive component, which forbids the government to infringe
certain “fundamental” liberty interests at all, no matter what
process is provided, unless the infringement is narrowly tailored
to serve a compelling state interest.
Reno v. Flores, 507 U.S. 292, 301–02 (1993). A different view was expressed in
an Eleventh Circuit opinion relied upon by the Plaintiffs for other reasons,
where the court stated that “the Salerno Court’s analysis was much closer to a
relatively lenient procedural due process analysis than it was any form of
heightened scrutiny.” Walker, 901 F.3d at 1262.
We are assisted as well by Tenth Circuit Chief Judge Tymkovich’s view
that when the Salerno Court stated that “the detention was not ‘excessive in
relation to the regulatory goal Congress sought to achieve,’” the “language did
not seem like anything close to strict scrutiny.” Hon. Timothy M. Tymkovich,
et al., A Workable Substantive Due Process, 95 NOTRE DAME L. REV. 1961, 1996
(2020). One of the amici in this case said as much by helpfully acknowledging
that no Supreme Court opinion has yet explicitly held that pretrial detention
is subject to strict scrutiny under substantive due process, though the amici
urged that as the needed standard.
Finally, as to Salerno, the Plaintiffs quoted in their briefing the Supreme
Court’s summary near the end of the opinion: “In our society liberty is the
norm, and detention prior to trial or without trial is the carefully limited
exception.” Salerno, 481 U.S. at 755. That pronouncement is joined by other,
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similar Supreme Court statements: “Freedom from bodily restraint has always
been at the core of the liberty protected by the Due Process Clause.” Foucha v.
Louisiana, 504 U.S. 71, 80 (1992). Nonetheless, as we explained, the Salerno
Court examined whether the detention allowed by the Bail Reform Act
amounted to punishment before trial and held that it did not. Salerno does not
support the argument that arrestees have a right to release absent a finding
that cash bail is necessary even when that indigent cannot afford it.
In seeking to make sense of all this, we start with the fact that
substantive due process is not the clearest of Supreme Court doctrines, a
difficulty perhaps suggested by the oxymoronic nature of its name. Some even
see it as an awkward effort to bypass early Supreme Court rejection of the
Fourteenth Amendment’s Privileges and Immunities Clause as protecting
many substantive rights but, regardless, the caselaw in this area is
“contradictory, imprecise,” and, well, “messy.” See Tymkovich, Substantive
Due Process, supra at 1962 & n.2, 1963, 1978. Chief Judge Tymkovich
interprets the caselaw to support different standards for challenges against
executive, legislative, and judicial actions, though the analytical lines are often
breached. Id. at 1964. We are reviewing a challenge to a judicial decision,
which Chief Judge Tymkovich concludes will “violate substantive due process
only if it is an ‘arbitrary or capricious’ abuse of power.” Id.; see also id. at 1984.
We do not adopt the suggested construct for the variety of substantive-due-
process claims, though the Supreme Court’s doing something along those lines
would bring clarity. We do find the journal article to be an edifying effort both
to explain how the doctrine connects to the Fourteenth Amendment’s Due
Process Clause and to bring some order to the caselaw.
The Defendants suggest substantive due process is a disfavored doctrine
at least to the extent that when some other provision in the Constitution
“provides an explicit textual source of constitutional protection,” that provision
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must be used instead of substantive due process principles. See Graham v.
Connor, 490 U.S. 386, 395 (1989). The Eighth Amendment is offered by the
Defendants as that explicit provision: “Excessive bail shall not be required.”
U.S. CONST. amend. VIII. The district court concluded that the Plaintiffs were
improperly using substantive due process “as an end-around of the Eighth
Amendment.”
Our research has not shown Fifth Circuit opinions applying the “explicit
textual source” bar to substantive due process claims other than in the context
of the Fourth Amendment excessive force claims and for takings claims. See
Bustillos v. El Paso Cnty. Hosp. Dist., 891 F.3d 214, 219–20 (5th Cir. 2018)
(Fourth Amendment); Simi Inv. Co. v. Harris Cnty., 236 F.3d 240, 247–49 (5th
Cir. 2000) (takings). One of our precedents stated that Graham did not mean
“that the applicability of the more explicit provision pre-empts due process
protections. Moreover, it is clear that a particular action may implicate more
than one constitutional protection.” John Corp. v. City of Hous., 214 F.3d 573,
582 (5th Cir. 2000) (citation omitted).
Additional support for not applying the Eighth Amendment to these
claims comes from the fact that the ODonnell opinions did not do so. In light
of our conclusion on this issue, namely, that the ODonnell precedents reject
the claim that a broader injunction is required under substantive due process,
we do not further consider the Graham argument.
A brief summary of what we have decided so far. There is no clear
support in the precedents on which the Plaintiffs rely for the expansive liberty
right for indigents that the Plaintiffs claim. The applicable standard of
scrutiny that applies to the claim is unclear. We reject that we must analyze
the claim under the Eighth Amendment.
Next is our review of whether this circuit made relevant pronouncements
on the issue in the ODonnell opinions. In the Plaintiffs’ view, their claimed
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right to pretrial liberty requires broader injunctive relief than was ordered as
to bail practices in Harris County. We start with some clarification about the
claims in ODonnell. Though the claims were brought under procedural due
process and equal protection, this court’s opinions made statements about
substantive due process. We quote our revised first opinion that the procedural
defect was a “mechanical application of the secured bail schedule.” ODonnell
I, 892 F.3d at 163. What was needed was “notice, an opportunity to be heard
and submit evidence within 48 hours of arrest, and a reasoned decision by an
impartial decisionmaker.” Id. As a result, the broader relief in the district
court’s injunction, which we characterized as “the outright elimination of
secured bail for indigent misdemeanor arrestees” was too broad. Id.
We understand that the Plaintiffs are not arguing that indigents can
never be detained even if they could not afford cash bail; instead, they argue
that the Magistrate Judge must find that the State has a sufficiently strong
interest in order to hold an indigent who cannot afford cash bail. That is what
the ODonnell plaintiffs argued too. Nonetheless, we interpret our statements
in ODonnell I to mean that the effect of a provision such as ordered by that
district court was to eliminate cash bail for most indigents. See ODonnell I,
892 F.3d at 163. We turn now to what had been ordered. In the superb,
extraordinarily thorough explanation by Chief District Judge Rosenthal of the
facts and law, making the work of the Fifth Circuit so well informed, the court
imposed the Bearden standard as part of what was required in ODonnell:
Under the Equal Protection Clause as applied in the Fifth
Circuit, pretrial detention of indigent defendants who cannot pay
a financial condition of release is permissible only if a court finds,
based on evidence and in a reasoned opinion, either that the
defendant is not indigent and is refusing to pay in bad faith, or
that no less restrictive alternative can reasonably meet the
government’s compelling interest.

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ODonnell v. Harris Cnty., 251 F. Supp. 3d 1052, 1140 (S.D. Tex. 2017). The
context for that quoted holding in ODonnell I was that what those plaintiffs
were seeking was a “substantive due process right to be free from any form of
wealth-based detention.” ODonnell I, 892 F.3d at 163.
We wrote that the remedy of eliminating cash bail for indigents “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.” Id. In other words, no fundamental right
to be categorically free from wealth-based detention existed. See id.
A later motions panel quoted this language favorably. See ODonnell II,
900 F.3d at 225. That second appeal came after the ODonnell I court remanded
and the district court entered a revised injunction. Id. at 222. On appeal from
that ruling, a motions panel entered a published opinion granting a defense
motion to stay sections of the revised injunction pending final resolution of the
appeal. Id. at 221–23, 228. According to the motions panel, the district court
exceeded this court’s earlier mandate because its new injunction ordered
“release of an indigent arrestee with no strings attached and before an
opportunity for the County to provide the strings,” which the panel held
violated ODonnell I. Id. at 225. Later, newly elected and differently minded
Harris County judges moved to dismiss the appeal, and we did so. Dismissal
made the motions panel opinion our final published word on the case.
The Plaintiffs here argue that the motions-panel opinion has no
precedential value. “[A] motions panel order is not binding” on the later merits
panel. Cimono v. Raymark Indus., Inc., 151 F.3d 297, 311 n.26 (5th Cir. 1998).
We need not analyze the precedential reach of a motions panel opinion today.
Binding or not, we agree with the motions panel’s treatment of ODonnell I as
rejecting the same substantive-due-process right that the Dallas County
Plaintiffs urge we use to grant a broader injunction.
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No. 18-11368
“[A] fundamental substantive due process right to be free from any form
of wealth-based detention” was not “in view” in ODonnell I, 892 F.3d at 163.
The same substantive-due-process right is being asserted in this appeal. The
Plaintiffs want any injunction to include a requirement that, before cash bail
could be ordered, as the district court described it, “a substantive finding [be
made] by the Magistrate Judges that no other alternative to secured release
would serve the State’s interest before detaining an individual before trial.”
These Plaintiffs have a right to pretrial liberty that cannot be taken by
the State without constitutionally adequate justification. Supreme Court
decisions, such as Salerno, and our own Rainwater opinion support such a
right. How to evaluate the rights of indigent arrestees is central to this appeal,
but it also was in ODonnell. The Plaintiffs assert that cash-bail cannot be
required when an indigent arrestee cannot pay, absent a finding that there is
no other alternative that would serve the State’s interest. The ODonnell I
court held that such a right did not exist, and that statement was not dicta
because it explained the rejection of a remedy that in the court’s view would
effectively eliminate cash bail for indigents. The procedural protections
provided for in ODonnell I, and also the motions-panel decision in ODonnell II,
which were replicated in the injunction issued in this case are what this circuit
has held are proper relief.
Other issues raised by the Defendants, including whether we must
abstain due to Younger v. Harris, 401 U.S. 37, 43–44 (1971), and whether
injunctive relief here excessively intrudes into pretrial judicial decisions under
Tarter v. Hury, 646 F.2d 1010, 1013–14 (5th Cir. Unit A June 1981), were
adequately addressed in an earlier Harris County opinion. ODonnell I, 892
F.3d at 156–57. They cannot be reconsidered here.
***

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No. 18-11368
Suit against the Criminal District Court Judges is barred by sovereign
immunity because they are officials of the State of Texas and the Ex parte
Young exception does not apply, and also because the Plaintiffs lack standing
as to them. The Sheriff can be enjoined to prevent that officer’s enforcement
of measures violative of federal law, regardless of whether the sheriff is a
proper defendant for municipal liability purposes under Section 1983. So may
the Magistrate Judges.
We AFFIRM the injunction except for any application to the District
Court Judges and for its articulation of the Sheriff’s responsibilities as to bail
orders. We REMAND for further proceedings consistent with this opinion.

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