United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT F I L E D
August 28, 2007
No. 05-20714 Charles R. Fulbruge III
Clerk
CARL R. PRUETT; SCOTT MARTIN,
Plaintiffs-Appellees-Cross-Appellants,
versus
HARRIS COUNTY BAIL BOND BOARD; HARRIS COUNTY,
Defendants-Appellants-Cross-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
--------------------
ON PETITION FOR REHEARING
Before HIGGINBOTHAM, WIENER, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
In response to the Petition for Rehearing filed by the
defendants, we withdraw the prior panel opinion in its entirety and
substitute the following.
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
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:
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.
2
(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
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.
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.
3
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
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
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.] Oct. 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 Com. 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
Dist. v. United States, 424 U.S. 800 (1976), and do not do so here.
3
421 U.S. 809 (1975).
4
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
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
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. Com. 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 Med. Ctr., 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 (5th Cir. 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
circumscribed.”6 First, “[t]he State must assert a substantial
interest to be achieved by restrictions on commercial speech.”7
Second, “the restriction must directly advance the state interest
involved.”8 Third, “if the governmental interest could be served
as well by a more limited restriction on commercial speech, the
excessive restrictions cannot survive.”9 We review the lower
court’s application of this test de novo.10
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 and arguing that Moore v.
Morales11 relied upon testimony at trial in ascertaining the
6
Central Hudson, 447 U.S. at 564.
7
Id.
8
Id.
9
Id. 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.
10
See Speaks, 445 F.3d at 399.
11
63 F.3d 358, 362-63 (5th Cir. 1995). Harris County also relies on
BGHA, LLC v. City of Universal City, Texas, 340 F.3d 295, 299 (5th Cir. 2003)
(discussing J&B Entertainment, Inc. v. City of Jackson, 152 F.3d 362, 371 (5th
6
justification for a statute. 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 “the Central Hudson
standard does not permit us to supplant the precise interests put
forward by the State with other suppositions.”12 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,13 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 Moore, our most relevant case,
the court’s language shows that it considered post-enactment
Cir. 1998), which allowed the city to justify an ordinance based on evidence
adduced at trial).
12
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.
13
See supra note 6.
7
evidence in analyzing a Central Hudson claim.14 Even with a First
Amendment doctrine calling for “intermediate scrutiny” such as
regulation of sexually-oriented businesses, where the argument to
disallow post-enactment evidence as justification for a statute has
some logical purpose, 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
protected activity or its effects.15 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
14
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).
15
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.
8
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.16 The district court found that these 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
regularly17 - 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. Witnesses for Harris County
16
The plaintiffs argue that the legislature’s purpose in enacting § 109
was to hinder competition between large, affiliated bondsmen and independent
bondsmen, but their evidence largely relies upon claims that the legislature
responded to strong anti-competitive lobbying by Pruett’s and Martin’s
competitors, International Fidelity Insurance Company. In any event, even if
the impulses behind § 109 were anti-competitive, § 109 could still be
supported by other, legitimate interests.
17
See, e.g., Affidavit of Sergeant Larry Hall. (Hall, employed by the
Harris County Sheriff’s office since 1976, described the County’s notification
policy, which allows the County to “wean out possibly dangerous misdemeanants
and send notification letters only to non-threatening, non-serious
misdemeanants who are likely to save Harris County money and serve public
policy by voluntarily coming in and making appropriate arrangements . . . . “)
9
testified that executing arrest warrants is dangerous, that
maintaining the “element of surprise” is important in decreasing
the target’s ability to flee, resist, harm people, or destroy
evidence, and that bondsman solicitation has, in certain past
anecdotal incidents, tipped off criminals and caused problems.18
Although other Harris County witnesses testified that they knew of
no instances where bondsman solicitation had caused a problem, and
the bondsmen’s main expert witness testified similarly, we accept
as true the testimony supporting the County, given the procedural
posture of this case. We note, however, that the record does not
indicate the date of many of the incidents described and fails to
reflect, in several instances, which incidents occurred before
institution of the 48-hour JIMS window. At least one anecdote,
however, references an individual suspected of manufacturing
methamphetamine who had received a tip that he would be arrested
and opened fire on police officers when they arrived to arrest him
in 1988.19 Presumably such a suspect would be targeted, and
18
See, e.g., Oral Deposition of Alvin W. Berry (“The element of
surprise . . . does not give the defendant or the person to be arrested the
ability to either flee or to resist.”); Affidavit of James Fitzgerald
(describing how a murder suspect fled after receiving solicitation from a
bondsman and was missing for about six days before being apprehended);
Affidavit of Rodney Marcotte (“[A]fter apprehending suspects, they have
indicated to me that they fled immediately after receiving notice of
solicitation by one or more bondsmen.”); Affidavit of Sergeant Kent Radney
(describing how a suspect, aware that he would be arrested, greeted police
officers with open fire).
19
Cross-Examination of Bruce Douglas Carr, discussing how the incident
discussed in Sergeant Radney’s affidavit occurred in 1988, prior to the
implementation of JIMS. See also Affidavit of Kent Radney (describing the gun
battle, which occurred in October 1988).
10
hopefully caught, within the 48-hour period preceding posting on
JIMS. Nevertheless, we accept at this point that (b)(1) directly
advances the state’s interests.20
However, 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 its goals,21 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,”22
it is relevant that other, less-restrictive and more-tailored means
exist. The district court found that Harris County could advance
the stated interests by the more narrow means of: 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
20
The bondsmen also argue that (b)(1) does not directly advance the
stated interests because it excludes bondsmen with an “existing business
relationship.” Essentially, they argue that (b)(1) does not go far enough and
should not have this exclusion, as some of their witnesses testified. This
argument sounds in underinclusivity, and thus may relate more properly to
prong three, but in any event we agree with the court in Harris County Bail
Bond Board v. Pruett, 177 S.W. 3d 260,273-74 (Tex. App. 2005), that this
exception is not problematic. First, that court construed “existing business
relationship” to mean that “the bondsman involved has in place an existing,
current bond on the person requiring another bond.” That definition controls
here. As the court noted, such a bondsman would want to contact the person
because the new warrant might affect his current bond. Moreover, as the court
noted, it would be impractical to allow the bondsman to discuss the existing
bond but not the possibility of a new bond, and it is unlikely a bondsman
would contact someone who he thought would run away because that might lead to
forfeiture of the original bond.
21
See supra note 9.
22
See Speaks v. Kruse, 445 F.3d 396, 400 (5th Cir. 2006).
11
notified. The County complains that the first two alternatives are
impractical and the third outside the Texas legislature’s control.
The first may be impractical. But the second is not, in the
district court’s form or in the form we address - wherein the
legislature could alter § 109 to include a time limit on
solicitation, with a window prior to solicitation that would give
police officers time to act.23 And here, we note that restrictions
on commercial speech without any time limitation are inherently
suspect.24 Furthermore, some of the County’s own witnesses
testified that giving law enforcement 72 or 96 hours or so after
arrest to serve a warrant before bondsmen could solicit would
greatly serve the County’s stated interest.25 In short, (b)(1) is
not narrowly tailored because it prohibits solicitation of targets
days, weeks, or even months after warrants are issued.
Furthermore, we agree with the district court that it is
telling that Harris County itself, through the Sheriff’s
23
After all, whether Harris County could extend the 48-hour JIMS
blackout period is irrelevant. The question is whether § 109 is
constitutional as written; indeed, other counties may not have a JIMS-type
system at all. We, and the Supreme Court, often assume in analyzing whether
statutes pass constitutional muster that the legislature could enact a more
narrowly tailored means. See, e.g., Riley v. Nat’l Federation of the Blind
of N.C., Inc., 487 U.S. 781, 800 (1988) (“In contrast to the prophylactic,
imprecise, and unduly burdensome rule the State has adopted to reduce its
alleged donor misperception, more benign and narrowly tailored options are
available.”); Lindsay v. San Antonio, 821 F.2d 1103, 1110-11 (5th Cir. 1987)
(“For purposes of this opinion, we can assume, arguendo, that the traffic
safety interest could be furthered by means of a more narrowly tailored
ordinance.”)
24
See Speaks v. Kruse, 445 F.3d 396, 400-01 (5th Cir. 2006).
25
Of course, the witnesses were asked whether extending the 48-hour
JIMS period would help, but exactly why a blackout of a certain length might
exist is irrelevant.
12
Department, notifies thousands of people every year of open
warrants against them,26 as do other law enforcement agencies in the
County27 - Harris County cannot 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. The
County urges that it notifies only people charged with “non-
serious” misdemeanors, excluding people accused of assaultive
crimes, crimes involving family violence, crimes against the
person, or any crime of an aggravated nature. The record reveals
that the Sheriff’s Department does not notify people in this
excluded group of assaultative crimes, or people charged with
felonies, wanted for revocation of weekend service or off-work
hours, wanted for sentencing, wanted for capias profine that
26
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. We recognize
the tension in our holding that what the Texas legislature, not Harris County,
can do regarding a time limit is relevant, but also looking to whom Harris
County notifies. We look to what Harris County does only to illuminate why it
is possible for the statute itself to screen certain targets more finely than
the Class C misdemeanor exclusion that it currently contains.
27
Harris County Constables notify many Class C misdemeanor targets, who
are exempted from § 109. The bondsmen introduced evidence from the
constables’ websites suggesting that they notify certain Class A and B
misdemeanor targets as well, and this appears to be true, although the
evidence isn’t entirely clear. It’s undisputed that the Houston Police
Department notifies certain targets, although it’s unclear what categories of
targets, and does not apprise the Sheriff’s Department of whom it notifies.
In addition, anyone can call the county clerk and ask whether a warrant exists
for someone, and various agencies release names and data through posters,
press releases, and broadcast media outlets, but these forms of notification
seem less relevant because anyone who cares to find out if he has a warrant is
not the type of person about whom Harris County professes concern, and because
agencies’ publicizing information about certain targets occurs, presumably,
after they have tried to catch a target and he has become a fugitive.
13
includes jail time, or wanted in another jurisdiction.28 Yet
through that screen still fall many Class A and Class B misdemeanor
targets, who escape the Class C misdemeanor exclusion of § 109,
including oft-sought targets of bondsmen solicitation like petty
thieves, people who write hot checks, drivers on suspended
licenses, and certain DWI offenders. Harris County urges that the
statute’s exclusion of only Class C misdemeanor targets is
reasonable because certain Class A and Class B misdemeanors can
result in jail of up to 180 or 360 days, even if they are non-
violent, rendering the suspects of such crimes liable to run. That
may be true, and we do not cast the legislature’s choice to exclude
only Class C misdemeanors as unreasonable. However, under the
narrow-tailoring test of Central Hudson we note that, as Harris
County has done, (b)(1) could reasonably allow solicitation of
certain Class A and B misdemeanor targets, those not liable to run.
Combined with its temporal breadth, the breadth of crimes covered
by (b)(1) is simply too broad. 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
28
Also excluded from receiving notification are those with an unknown
name, address, or other personal information.
14
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.29 This
bootstrapping argument fails. The threshold inquiry asks whether
the speech is misleading or the product or service spoken about is
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.30
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
29
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).
30
See Speaks, 445 F.3d at 400 n.13.
15
a valid target of legislation.31 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, Kathleen Braddock, 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. It also offers
testimony from four citizens upset at solicitation calls they
received. This is insufficient evidence to show that the 24-hour
rule directly advances state interests. First, Harris County does
not connect the reduction in citizen complaints to the 24-hour
rule, as opposed to the other aspects of the amended local rules,
particularly the nighttime solicitation ban that we uphold later.32
Indeed, Braddock’s affidavit in the paragraph discussing the 24-
hour ban highlights the harassing nature of calls between,
especially, midnight and 5 a.m., and three of the four citizens who
31
See, e.g., id., at 400 n.13, 398-99 (discussing how “[p]rivacy and
the protection of citizens against undue influence are valid substantial state
interests” but striking down a Louisiana statute preventing direct
solicitation of recent accident victims by health care providers as
insufficiently narrowly tailored).
32
Harris County provides no evidence about the nature of the
complaints’ pre- and post-rule change, preventing any useful conclusion from
the reduction in complaints.
16
testified regarding the 24-hour period stated that they received
the unwelcome calls between 9 p.m. and 9 a.m.33 We hold later that
Harris County can ban such nighttime calls. Second, to whatever
extent the testimony of the citizens can be read to cover daytime
solicitation, we give credence to the common-sense argument that
most families would like to know when their members are in jail.34
Third, Braddock’s conclusory statement that solicitation is the
worst in the 24-hour period after arrest is insufficient. Notably,
the district court held that Harris County fails to explain why,
with the implementation of a 24-hour rule, harassing solicitations
won’t simply begin on the 25th hour. Harris County now offers an
explanation which it urges is implicit in Braddock’s statement that
most harassing solicitation occurs during the first 24 hours
following arrest: most people who can afford bond will seek out a
bondsman during the first 24 hours, hence bondsmen will have little
incentive to call after that period. Even if true, it is no
response to an attack on a restriction on speech that the
restriction essentially bans all speech. The argument that most
bondsmen desire to contact potential customers right away helps
33
The record does not show when the fourth citizen received the
unwelcome call.
34
Harris County presents evidence to the contrary, where individuals
argue that they prefer to receive news about a family member being in jail
from another family member. Additionally, Harris County argues that many
detained suspects are permitted to make a telephone call to family members.
Other evidence, however, such as the testimony of criminal defense attorney
Albert Fong, suggests that the many people who are contacted by bondsmen
regarding a relative in jail have expressed “gratitude” rather than
indignation upon receiving this information. Regardless, this is not the crux
of our argument, as we focus on the 24-hour window’s effect of stifling an
unacceptably large proportion of bondsman speech.
17
explain why solicitation soon after arrest might be prevalent, and
therefore harassing, but it also counsels that such a restriction,
which prevents speech when it is the most valuable for the speaker
and the potential customer,35 should be viewed with some skepticism.
Given the record as a whole, we cannot conclude that Harris County
has shown that the 24-hour ban directly serves the interest in
privacy.
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,36 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
(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
35
The benefits attending commercial speech flow not just to the
speaker, for increased consumer knowledge about any product aids consumer
choice and increases competition.
36
See supra note 26.
18
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. 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.37 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).
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 reverse.
IV
After addressing the merits, the district court ordered the
bondsmen to file a request for fees, pursuant to 42 U.S.C. § 1988.
The bondsmen requested almost $200,000. The defendants argued that
37
See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 498 (1982).
19
“special circumstances” should preclude or reduce any award,38 and
they also attacked specific line-items submitted by the bondsmen.
The court took no issue with the line-items, but it noted its
concern with whether any award should issue given that “(a) Harris
County is not involved in the regulation of bail bondsmen; (b) the
Harris County Bail Bond Board is not a policy making body; it
merely enforces the laws and policies of the state of Texas; and
(c) neither Harris County nor the Bail Bond Board enforced the
statute against the plaintiffs.” The court then awarded what it
called “nominal” fees, $50,000, with $25,000 more in the event of
appeal. In its August 18, 2005 notice of appeal, Harris County
appealed both the underlying merits and the award of fees, urging
again that “special circumstances” exist precluding any 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 because
the court’s three findings quoted above were erroneous.
At the outset, the parties skirmish over whether the
bondsmen’s cross-appeal was timely.39 We need not address this
issue because Harris County’s appeal, including an appeal of fees
awarded, was timely, and that appeal focused on the same question -
38
See Houston Chronicle Pub. Co. v. City of League City, Tex., 488 F.3d
613, 623 (5th Cir. 2007) (explaining the “special circumstances” exception of
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting a Senate Report behind
§ 1988 that “a prevailing plaintiff ‘should ordinarily recover an attorney's
fee unless special circumstances would render such an award unjust’”)).
39
Browder v. Director, Dep’t of Correction, 434 U.S. 257, 264 (1978)
(holding that a timely notice of appeal is jurisdictional).
20
whether and to what extent the district court could consider the
fact that defendants were not the promulgator, or arguably the
enforcer,40 of the statute at issue.
We review a district court’s determination of special
circumstances for abuse of discretion;41 although this is a highly
deferential standard of review, we find here that because
plaintiffs fully succeeded in the case below,42 the court’s award
of “nominal” attorneys’ fees to plaintiffs based on defendants’
lack of participation in policymaking or regulation of bondsmen was
an erroneous interpretation of the special circumstances that the
Court in Hensley43 indicates could render an award unjust.
We have held that given the strong policy behind § 1988 of
awarding fees to prevailing plaintiffs, defendants must make an
“extremely strong showing” of special circumstances to avoid paying
40
The parties dispute whether defendants did, or were about to, enforce
§ 109 against them.
41
Johnson v. Mississippi, 606 F.2d 635, 637 (5th Cir. 1979).
42
The district court declared § 109 unconstitutional, found that
defendants were liable under § 1983 for “depriving plaintiffs of their
constitutional rights,” and enjoined defendants from enforcing the statute.
The only point on which the court disagreed with plaintiffs was on their
request for damages; it granted an injunction in lieu of damages. The court
also declined to address plaintiffs’ alternative claims, since it found the
statute unconstitutional under their First Amendment claim.
43
Defendants relied on the Hensley case in their response to
plaintiffs’ motion for attorneys’ fees, arguing that “‘special circumstances .
. . would render . . . an award [of attorney fees and costs] ‘unjust.’”
Defendants Harris County Bail Bond Board’s Response to Plaintiffs’ Motion to
Recover Attorney Fees, Expert Fees and Expenses (citing Hensley, 461 U.S. at
429 (1983)).
21
attorneys’ fees44 and that “the discretion to deny § 1988 fees is
. . . extremely narrow.”45 That a defendant does not promulgate a
policy does not eliminate the costs the plaintiff had to bear in
securing his rights, hence even defendants lacking culpability and
acting in good faith should pay attorneys’ fees.46 Defendants here
failed to make an extremely strong showing of special
circumstances. Even if defendants had made an extremely strong
showing that rose to the level of special circumstances, this
circuit has never held that such “special circumstances” can serve
to reduce, and not fully eliminate, an award of fees.47
44
See Houston Chronicle Pub. Co. v. City of League City, Tex., 488 F.3d
613, 623 (5th Cir. 2007).
45
Espino v. Besteiro, 708 F.2d 1002, 1005 (5th Cir. 1983) (citing
Ellwest Stereo Theatre, Inc. V. Jackson, 653 F.2d 954, 955 (5th Cir. 1981)).
46
See Hopwood v. State of Texas, 236 F.3d 256, 278 (5th Cir. 2000)
(noting that § 1988 provides fees under a “private attorney general theory”);
Williams v. Hanover Hous. Auth., 113 F.3d 1294, 1301-02 (1st Cir. 1997)(“The
circuits are in agreement . . . that defendants’ good faith reliance even on
settled law . . . is not a ‘special circumstance’ warranting a denial of
attorneys’ fees under § 1988.”); Lampher v. Zagel, 755 F.2d 99, 104-05 (7th
Cir. 1985) (holding that defendants’“good faith” is not sufficient and that
local official’s enforcement of state law he thought valid was not
sufficient); Martin v. Heckler, 773 F.2d 1145, 1149-52 (11th Cir. 1985)
(concluding that state agency which merely enforced federal law and did not
write policy failed to present “special circumstances” to justify denial of
all fees). In essence, as long as a plaintiff’s lawsuit played some role in
his eventually obtaining relief - as opposed to, say, a defendant who
gratuitously confers relief - he can recover fees. See Lampher, 755 F.2d at
104-05.
47
We find only one case, from the Third Circuit, that has allowed a
partial reduction of fees in lieu of all-out elimination of fees under the
special circumstances test; the court wrote this opinion directly after the
Hensley decision, when few other interpretations of that case were available.
See Inmates of Allegheny County Jail v. Pierce, 716 F.2d 177, 179 (3d Cir.
1983)(“[W]e note that Hensley was announced after the filing of the district
court opinion in the instant case so that the court below did not have the
benefit of the Supreme Court's latest teachings.”)
22
The district court would have had more discretion to reduce
the County’s attorneys’ fees in the case below if plaintiffs had
partially rather than fully succeeded on their claims,48 as they
have on appeal. Under Hensley’s standard for partial success (a
different standard than the “special circumstances” that
occasionally allow a defendant to avoid attorneys’ fees
altogether), a court may award reduced fees to plaintiffs that are
prevailing parties but have lost on some claims.49 The court may
use its “equitable discretion” to “arrive at a reasonable fee
award, either by attempting to identify specific hours that should
be eliminated or by simply reducing the award to account for the
limited success of the plaintiff.”50 Plaintiffs did not have
“partial success” in the district court, however; they won their
case yet they received nominal fees.
Because the court erred in applying the special circumstances
test in the case below, and because Harris County has now prevailed
48
See supra note 42, discussing plaintiffs’ success on all claims with
the minor exception of the court’s decision to grant an injunction, not
damages. Even if the court, in its discretion, had considered this minor
exception as a “failure” on a claim, the court did not conduct the correct
Hensley analysis for partial success but rather (it appears) relied more
generally on the special circumstances exception to substantially reduce the
award. Additionally, even if the court had conducted a Hensley analysis for
partial success, plaintiffs would likely have merited a full fee award under
the applicable Hensley test because plaintiffs soundly won the majority of
their claims. See Hensley, 461 U.S. at 440 (“Where a lawsuit consists of
related claims, a plaintiff who has won substantial relief should not have his
attorney's fee reduced simply because the district court did not adopt each
contention raised.”)
49
Hensley, 461 U.S. at 436.
50
Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782,
789-90 (1989), (citing Hensley, 461 U.S. at 437).
23
on one issue, 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.51
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.
51
See Hensley, 461 U.S. at 435 (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).
24