United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 7, 2007
Charles R. Fulbruge III
Clerk
No. 05-20714
CARL R. PRUETT; SCOTT MARTIN,
Plaintiffs-Appellees-Cross-Appellants,
versus
HARRIS COUNTY BAIL BOND BOARD; HARRIS COUNTY,
Defendants-Appellants-Cross-Appellees.
--------------------
Appeals from the United States District Court
for the Southern District of Texas
--------------------
Before HIGGINBOTHAM, WIENER, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Two bail bondsmen challenged a Texas statute restricting
solicitation of potential customers as a denial of their First
Amendment rights. The district court agreed. Concluding that all
but one of the restrictions violates the bondsmen’s right to
commercial speech, we affirm, reverse, and remand, all in part.
I
Bail bondsmen Carl Pruett and Scott Martin filed this § 1983
action against Harris County and the Harris County Bail Bond
Board,1 challenging on various federal and state constitutional
1
The Board, a creature of Texas statute, is responsible for supervising
and regulating the bond business and enforcing bond rules and statutes. TEX.
OCC. CODE § 1704.101, .102 (2005). The State of Texas declined to intervene,
hence Harris County and the Board (“Harris County”) defend the statute.
grounds, including the First Amendment, a Texas statute governing
solicitation of customers, TEX. OCC. CODE § 1704.109 (2003). That
statute provides:
(a) A board by rule may regulate solicitations or
advertisements by or on behalf of bail bond sureties to
protect:
(1) the public from:
(A) harassment;
(B) fraud;
(C) misrepresentation; or
(D) threats to public safety; or
(2) the safety of law enforcement officers.
(b) A bail bond surety, an agent of a corporate surety or
an employee of the surety or agent may not make, cause to
be made, or benefit from unsolicited contact:
(1) through any means, including in person, by
telephone, by electronic methods, or in writing, to
solicit bonding business related to an individual
with an outstanding arrest warrant that has not
been executed, unless the bail bond surety or agent
for a corporate surety has an existing bail bond on
the individual; or
(2) in person or by telephone to solicit bonding
business:
(A) that occurs between the hours of 9 p.m.
and 9 a.m.; or
(B) within 24 hours after:
(i) the execution of an arrest warrant on
the individual; or
(ii) an arrest without a warrant on the
individual.
(c) This section does not apply to a solicitation or
unsolicited contact related to a Class C misdemeanor.
The plaintiffs challenge subsection (b), which contains two
prohibitions. Subsection (b)(1) prohibits any solicitation
2
regarding an outstanding warrant, unless the subject of the warrant
is a previous customer. Subsection (b)(2) restricts the time of
solicitation after arrest, prohibiting solicitation in person or by
phone from 9:00 p.m. to 9:00 a.m., or within 24 hours after a
person has been arrested, either with or without a warrant. The
statute does not prevent attorneys, law enforcement officials, or
anyone else from alerting someone that he’s the subject of an open
warrant. Law enforcement officials frequently send letters to
petty defendants giving notice of open warrants against them,
hoping they’ll turn themselves in. Most serious offenders do not
get bail in Texas, hence most bondsmen don’t target them.
Bondsmen use several methods to solicit business. One
particularly useful tool is the Harris County Justice Information
Management System (JIMS), a computer system accessible to the
public through terminals and the Internet which provides, inter
alia, names and addresses of persons arrested and subjects of
arrest warrants. Given the public’s ease of access to JIMS, Harris
County waits 48 hours after an arrest warrant is issued to post the
information about the warrant on JIMS, allowing law enforcement
officers to execute the warrant first.
The district court granted the bondsmen’s motion for summary
judgment, holding the statute unconstitutional and enjoining its
enforcement. It granted in part the plaintiffs’ motion for fees,
awarding them $50,000 plus $25,000 in the event of appeal. Harris
3
County appeals the judgment, including the award of fees, and
plaintiffs cross-appeal the award of fees, asking for more.2
II
The metaphor of political speech finding its place in the
marketplace of ideas proved to be a powerful if inexact force,
drawing speech in its myriad presentations under the umbrella of
First Amendment protection —— the force of the metaphor itself a
validating testament to the power of an idea so strong as to invite
confusion of metaphorical imagery with defining principle. And in
1975, with the Supreme Court’s decision in Bigelow v. Virginia,3
speech in the marketplace of actual goods itself gained protection,
albeit as “less valuable speech,” termed “commercial speech.” It
signifies that commercial speech did not displace otherwise
protected speech in gaining First Amendment protection. That a
book or article is sold or a column is written for compensation
2
In early 2001, Harris County adopted by local rule solicitation
restrictions similar to those of current § 109(b). Later that year, the Texas
legislature enacted the original version of § 109, which allowed local boards
to regulate solicitation. In 2002, plaintiff Pruett challenged the local
rules in state court. The trial court held the rules unconstitutional, see
Harris County Bail Bond Board v. Pruett, No. 01-02-01043-CV, 2004 WL 2307362
(Tex. App. -Houston [1 Dist.] October 14, 2004, no pet. h.), the appellate
court partially reversed, 177 S.W. 3d 260 (Tex. App. 2005), and the case is
pending before the Supreme Court of Texas. The present case involves current
§ 109(b), which was enacted in 2003 but concerns issues similar to those in
the state court case. However, the present case involves a central issue of
federal constitutional law, and although we abstain from ruling on issues of
Texas constitutional law, see Railroad Commission v. Pullman Co., 312 U.S. 496
(1941), we rarely abstain from ruling on federal constitutional law, see
Pennzoil v. Texaco, Inc., 481 U.S. 1 (1987); Colorado River Water Conservation
District v. United States, 424 U.S. 800 (1976), and do not do so here.
3
421 U.S. 809 (1975).
4
does not eliminate its protection.4 In sum, commercial speech,
with its lesser protection, is at bottom advertising. As the
parties and the court below recognized, § 1704.109 is a restriction
on commercial speech.
Restrictions on commercial speech are analyzed under the
framework of Central Hudson.5 The government may ban misleading
commercial speech and commercial speech related to illegal
activity. “If the communication is neither misleading nor related
to unlawful activity, the government’s power is more
circumscribed.” First, “[t]he State must assert a substantial
interest to be achieved by restrictions on commercial speech.”
Second, “the restriction must directly advance the state interest
4
See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,
425 U.S. 748, 761-62 (1976).
5
See Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commission of New
York, 447 U.S. 557, 563-64 (1980). The parties quarrel about what level of
scrutiny Central Hudson mandates. Citing 44 Liquormart, Inc. v. Rhode Island,
517 U.S. 484 (1996), the plaintiffs urge something “akin to strict scrutiny.”
44 Liquormart, however, was a plurality opinion involving “a blanket
prohibition against truthful, nonmisleading speech about a lawful product,”
id. at 504, and there’s no blanket prohibition here. In any event, the
Supreme Court has called Central Hudson a form of “intermediate” scrutiny.
See Edenfield v. Fane, 507 U.S. 761, 767 (1993); see also Florida Bar v. Went
for It, Inc., 515 U.S. 618, 623 (1995); cf. Thompson v. Western States Medical
Center, 535 U.S. 357, 374 (2002) (describing the test as “significantly
stricter” than rational basis). The precise label for the level of scrutiny
embodied in Central Hudson is irrelevant, however - we just apply the test.
Likewise, the plaintiffs’ assertion that the Central Hudson test isn’t the
same as the time, place, and manner test, while true, see Speaks v. Kruse, 445
F.3d 396, 400 n.10 (2006), is axiomatic.
The plaintiffs also suggest that strict scrutiny should apply because
the restrictions here are content-based. This argument has no merit - §
1704.109 is a classic restriction on a category of commercial speech, a
restriction that involves methods, times, and subjects of solicitation and
does not have as a goal the suppression of speech. See, e.g., Speaks, 445
F.3d at 400 (examining similar restriction on chiropractor solicitation as a
restriction on commercial speech).
5
involved.” Third, “if the governmental interest could be served as
well by a more limited restriction on commercial speech, the
excessive restrictions cannot survive.”6 We review the lower
court’s application of this test de novo.7
Before we apply Central Hudson to the two restrictions at
issue, we address a fundamental dispute coloring much of the
parties’ arguments and the lower court’s ruling. The plaintiffs
argue that only evidence created before enactment of § 1704.109 and
relied upon or cited by the legislature in passing it can be
considered under Central Hudson. Consequently, they argue, because
the legislative record behind § 1704.109 is bare, it cannot survive
scrutiny. Harris County disagrees, offering testimony and
affidavits introduced in the court below. The district court
agreed with the plaintiffs, although it held that § 1704.109 failed
scrutiny even considering Harris County’s additional evidence.
Central Hudson does not require that evidence used to satisfy
its strictures exist pre-enactment. Plaintiffs rely heavily on the
statements in Edenfield v. Fane that a statute cannot be justified
“by mere speculation or conjecture” and that “[t]he Central Hudson
standard does not permit us to supplant the precise interests put
6
Central Hudson, 447 U.S. at 564. Despite the language of the third
prong, the Supreme Court and, thus, this court do not require that the state
use the least-restrictive means. See, e.g., Speaks, 445 F.3d at 401 n.14.
7
See Speaks, 445 F.3d at 399.
6
forward by the State with other suppositions.”8 Those statements,
however, only distinguish between rational basis review, under
which a court can, and should if necessary, confect its own reasons
to justify a statute, and Central Hudson review, under which a
court can consider only the reasons proffered by the state. While
with commercial speech the state need not demonstrate that its
regulatory means were the least intrusive on protected speech,9 it
must at least articulate regulatory objectives to be served. But
that doesn’t mean the state can proffer only reasons locatable in
the legislative record. Indeed, in our most relevant case, Moore
v. Morales, the court’s language shows that it considered post-
enactment evidence in analyzing a Central Hudson claim.10 Even with
a First Amendment doctrine calling for “intermediate scrutiny,”
where the argument has some logical purchase, that of sexually-
oriented businesses, we have specifically rejected the plaintiffs’
contention that evidence of purpose must be drawn only from a
contemporaneously generated legislative record. And there the
threshold question is whether the legislative body is regulating
8
507 U.S. 761, 768, 770 (1993); see also Went for It, 515 U.S. at 624
(quoting Edenfield). The plaintiffs cite to other cases, like U.S. West, Inc.
v. F.C.C., 182 F.3d 1224 (10th Cir. 1999), which simply restate this rule.
9
See supra note 4.
10
63 F.3d 358, 362-63 (5th Cir. 1995) (stating “[b]efore us is
extensive evidence” and, twice, “[t]hey testified”). In their brief,
plaintiffs suggest that this “evidence” and “testimony” was actually pre-
enactment “evidence” and “testimony,” presumably created in connection with
the legislation itself. The district court’s ruling, however, makes clear
that the evidence was developed at trial. See Moore v. Morales, 843 F. Supp.
1124 (S.D. Tex. 1994).
7
protected activity or its effects.11 We consider the testimony and
affidavits introduced by Harris County in the court below, as the
district court did in the alternative.
A
We turn first to subsection (b)(1), which prevents
solicitation regarding outstanding warrants unless the bondsman has
a prior relationship with the party. Harris County concedes that
the solicitations at issue are neither deceptive nor relate to
illegal activity. Next, under the first prong of Central Hudson,
Harris County asserts as substantial interests the diminishment of:
1) the flight risk for felony offenders and high-level misdemeanor
offenders; 2) the risk of harm to officers, defendants, and
bystanders when such defendants are arrested; 3) the risk of harm
to victims, family members, or witnesses from retribution; and 4)
the potential for destruction of evidence, interests alluded to in
the statute itself.12 The district courts found that these
11
See Illusions-Dallas Private Club, Inc. v. Steen, 482 F.3d 299 (5th
Cir. 1997) (rejecting argument that legislative record or statutory preamble
was necessary to discern a content-neutral purpose for statute); J&B Entm’t,
Inc. v. City of Jackson, 152 F.3d 362, 371 (5th Cir. 1998) (allowing use of
evidence of secondary effects developed pre-enactment or adduced at trial).
Plaintiffs cite other cases that seem to disagree, see Peek-a-Boo Lounge of
Bradentown, Inc. v. Manatee City, 337 F.3d 1251, 1265-67 (11th Cir. 2003);
Hickerson v. City of New York, 146 F.3d 99, 105 (2d Cir. 1998); 11126
Baltimore Blvd. v. Prince George’s County, 886 F.2d 1415, 1423 (4th Cir.
1989), judgment vacated by 496 U.S. 901 (1990); SOB, Inc. v. County of Benton,
317 F.3d 856, 862 (8th Cir. 2003); D.H.L. Associates v. O’Gorman, 199 F.3d 50,
57-58 (1st Cir. 1999), but those cases aren’t controlling, of course.
12
The plaintiffs argue that the legislature’s purpose in enacting § 109
was to hinder competition between large, affiliated bondsmen and independent
bondsmen, but it offers no real evidence for this claim. In any event, even
if the impulses behind § 109 were anti-competitive, § 109 could still be
supported by other, legitimate interests.
8
interests were substantial. We agree, although to the extent that
Harris County itself notifies non-serious offenders of open
warrants against them - and the evidence shows that Harris County
does this quite a bit - the interests are not substantial at all.
Deferring that concern to the third prong, where it more easily
fits, and assuming the interests are substantial in the abstract,
we turn to the second prong.
Under the second prong, Harris County must show that (b)(1)
directly advances these interests. It has failed to do so. Harris
County’s experts testified that executing arrest warrants is
dangerous and that maintaining the “element of surprise” is
important in decreasing the target’s ability to flee, resist, harm
people, or destroy evidence. Although we consider this testimony,
it is not enough in the absence of any sort of data or even
anecdotal evidence showing that bond-eligible targets, thus
excluding hard-core criminals,13 who aren’t caught during the 48-
hour JIMS delay, are tipped off by bondsmen and then choose to run,
resist, or destroy evidence. Harris County urges that requiring
such evidence would preclude the prevention of tragedies through
prophylactic laws, but there must be some evidence that (b)(1)
responds to an actual problem before we can conclude that it
13
Section 109(c) excludes solicitation related to Class C misdemeanors,
providing some leeway for bondsmen to call petty defendants, but we have no
evidence or argument about what portion of bond-eligible defendants are Class
C misdemeanor defendants or the relative dangerousness of such defendants to
other categories of defendants.
9
advances any interests.14 And even if Harris County has shown that
the statute advances the interest in some minor way, such a
“remote” or “marginal” advancing of the state’s interest is
insufficient.15
Even assuming that (b)(1) advances the stated interests,
(b)(1) fails prong three of Central Hudson. While that prong does
not require that the state employ the least-restrictive means to
accomplish it goals,16 it does require a good fit between the means
and the goals. Consequently, in determining whether “the means are
in proportion to the interests they purport to serve,”17 it is
relevant that other, less-restrictive and more-tailored means
exist. As the district court found, Harris County could advance
its interests by: 1) increasing the number of officers executing
warrants, thereby arresting risky offenders before the 48-hour JIMS
window expires; 2) extending the 48-hour window; and 3) screening
targets for those who could be notified. As we have observed, it
is telling that Harris County itself notifies thousands of people
every year of open warrants against them18 - Harris County cannot
14
Apparently sensing its problems with lack of evidence, Harris County
argues that “common sense” alone supports it here, citing Went For It, 515
U.S. at 628. Went for It, however, noted that common sense together with
history and consensus can justify a speech restriction.
15
See 44 Liquormart, 517 U.S. at 505-06.
16
See supra note 4.
17
See Speaks, 445 F.3d at 400.
18
In 2002, a Sheriff’s Department Sergeant testified that five night-
clerks in the Warrants Division send “more than 20" and perhaps as many as 100
of those letters every night, yielding 7,300 to 36,500 a year.
10
give such notice itself and then claim that restricting notice by
others is necessary to the safety of its officers and the public
and the prevention of flight. While the first two alternatives may
be impractical and the second outside the legislature’s control, at
least we will accept for now that these two do not leave an
untailored fit of ends and means. The third, however, is fatal.
We do not hold that Harris County cannot serve its objectives by
more narrowly drawn means. Rather, we hold that Harris County has
not yet engaged in the narrow tailoring demanded by the First
Amendment.
B
We turn next to subsection (b)(2), which prevents solicitation
in-person or by phone between 9:00 p.m. and 9:00 a.m. and within 24
hours after arrest. Harris County contends first that (b)(2)(A)
regulates conduct that was already unlawful under the general
statute prohibiting solicitation between 9:00 p.m. and 9:00 a.m.
and before noon on Sundays, TEX. BUS. & COM. CODE § 37.02(a)(2), hence
under the threshold inquiry of Central Hudson, (b)(2)(B) survives
as a ban on speech relating to illegal activity.19 This
bootstrapping argument fails. The threshold inquiry asks whether
the speech is misleading or the product or service spoken about is
19
In analyzing the second prong on Central Hudson, the district court
concluded that § 37.02(a)(2) covers only solicitations of a “consumer good or
service,” and that bail bonding isn’t such a good or service. Although we
don’t pass on the question, we note that § 37.02(a)(2) seems to cover bail
bonding, as the Texas Court of Appeals held in Pruett’s related case, see
Harris County Bail Bond Board v. Pruett, 177 S.W. 3d 260, 275-76 (Tex. App.
2005).
11
illegal, and here the speech isn’t misleading and the product or
service itself - bail bonding - isn’t illegal. That § 37.02(a)(2)
itself bans speech doesn’t save (b)(2)(B). And so we turn to the
Central Hudson prongs.
Harris County asserts as its substantial interest for (b)(2)
the prevention of harassing solicitation, essentially what we have
elsewhere called the interest of “privacy,” a sufficient interest.20
But Harris County’s argument finds difficulty when its interest is
stated more narrowly as the prevention of harassment through bail
solicitation and the promotion of privacy of families of persons
targeted for arrest. It now differs from solicitation held to be
a valid target of legislation.21 We defer this concern to the next
prong, again assuming the interests are substantial in the
abstract.
We conclude that the 24-hour window of (b)(2)(B) does not
directly advance the state’s interest. Harris County offers an
affidavit from an employee of the Harris County District Attorney’s
Office stating that the 24-hour period after arrest is the time
during which harassing bond solicitations are the worst and that
citizen complaints “declined drastically” after Harris County
changed its local rules, before the enactment of § 109, to contain
essentially what is now § 109. Again, however, the state fails to
20
See Speaks, 445 F.3d at 400 n.13.
21
See, e.g., id.
12
carry its burden with a single affidavit, bereft of data or even
anecdotes, that the 24-hour rule advances the state’s interest.
Moreover, Harris County fails to explain why, with the
implementation of a 24-hour rule, harassing solicitations won’t
simply begin on the 25th hour. Nor does the County connect the
reduction in citizen complaints to the 24-hour rule, as opposed to
the other aspects of the amended local rules,22 or answer the
common-sense argument that most families would like to know when
their members are in jail. This last point has further import
given the plaintiffs’ unchallenged assertion that call-blocking and
call-ID systems that block calls from jail, combined with delays in
booking and broken phones in jail, make it difficult for a person
in custody to request help from family and friends.
All that remains is the 9:00 p.m. to 9:00 a.m. restriction.
The district court struck that down with the rest of § 109(b), but
its rationale for doing so is unclear, although the court seemed to
rely partly on its conclusion that the general solicitation timing
statute, § 37.02(a)(2), didn’t apply to bail bonding. We don’t
decide that question,23 although we note that if § 37.02(a)(2)
covers bail bonding, then presumably we can’t strike down (b)(2)(A)
without striking down § 37.02(a)(2), at least “as applied” to bail
bonding. We don’t face that dilemma because we conclude that
22
Harris County also provides no evidence about the nature of the
complaints pre- and post-rule change, preventing any useful conclusion from
the reduction in complaints.
23
See supra note 19.
13
(b)(2)(A) survives Central Hudson scrutiny. Prohibiting in-person
and telephone solicitation at late hours directly and substantially
furthers privacy and the prevention of harassing solicitation, and
is narrowly tailored to furthering that goal. A nighttime
prohibition is inevitably underinclusive because privacy may be
lost and harassing solicitation made during the day, but surely the
state’s interest is more powerful at night. Indeed, we’ve found no
successful challenges to general nighttime solicitation bans.
III
The plaintiffs also attacked § 109 below on vagueness, equal
protection, and Texas law grounds. The district court never
addressed these arguments after concluding that § 109 violated the
First Amendment. The plaintiffs raise the vagueness and equal
protection challenges again on appeal, saying nothing of Texas law.
Hence we must address the vagueness and equal protection arguments
as they pertain to (b)(2)(A), the subsection of § 109 most
resistant to those arguments. First, (b)(2)(A) is not
unconstitutionally vague; two specific types of solicitation of a
specific service are banned during a specific time.24 Second, the
plaintiffs’ equal protection argument relies entirely on the
distinction in (b)(1) between bondsmen with existing client
relationships and bondsmen without such relationship - a
distinction irrelevant to (b)(2)(A).
24
See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 498 (1982).
14
Consequently, we affirm the district court’s grant of summary
judgment to plaintiffs, except for that part enjoining the
enforcement of (b)(2)(A), which we must reverse.
IV
Under 42 U.S.C. § 1988, the district court awarded the
plaintiffs $50,000 in fees and $25,000 more in the event of appeal.
In its August 18, 2005 notice of appeal, Harris County appealed
both the underlying merits and that award of fees. After later,
unsuccessful attempts to modify that award, the plaintiffs cross-
appealed the issue of fees, asking that we award more money or
remand with instructions to award more money.
At the outset, the parties skirmish over whether the
plaintiffs’ cross-appeal was timely,25 a skirmish we need not
address because Harris County’s appeal, including an appeal of fees
awarded, was timely. We vacate and remand the award of fees given
Harris County’s partial, if limited, success, in defending the
nighttime restriction. We must vacate and remand the award of fees
to allow the district court to award fees appropriate to
plaintiffs’ now partial success in both the district court as well
as on appeal.26
25
Browder v. Director, Dep’t of Correction, 434 U.S. 257, 264 (1978)
(holding that a timely notice of appeal is jurisdictional).
26
See Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) (explaining that,
under § 1988, a party cannot recover fees for legal services on unsuccessful
claims, although sometimes unsuccessful and successful claims can be so
related as to warrant fees for time spent on the combined claims).
15
We AFFIRM IN PART and REVERSE IN PART the district court’s
decision on the merits. We VACATE AND REMAND the district court’s
award of fees for further consideration.
16