good morning your honor may please the court charles cooper representing appellants fourteen judges of the harris county criminal courts of law i'm joined this morning will divide arguing with my colleague kate david who will address a couple of issues whether the county is a proper party in this proceeding and whether nine hundred eighty three relief is available against judges in connection with their official actions the merits argument at vance by the plaintiffs in this case is evolved over the course of the appeal and as they have admitted has significantly narrowed and i think it's fair to say that say you have two differing approaches before you on the merits but we submit that at the threshold the court is bound to decline to reach the merits for two independent reasons the first reason is that the court needs to abstain from exercising jurisdiction and we believe that's required under two controlling cases the first one is supreme court case and it is remarkable in its similarity to this case oshea against littleton and the supreme court address in one nine hundred eighty three can't claim brought on behalf of  class of quoting now financially poor persons who are unavailable to afford bail and they challenge a continuing pattern in practice by illinois county magistrates and judges of and  quoting setting bond in criminal cases according to an unofficial bond schedule without regard to the facts of the case or circumstances of an individual defendant in violation the eighth and fourteenth amendment the court held supr held that the case was barred under younger because as the court put it the plaintiffs sought an injunction aimed at controlling or preventing the occurrence of specific events that might take place in the course of future criminal proceedings such an order would inevitably the court concluded lead to interference in those state criminal proceedings no bail proceedings because of the necessity of essentially entertaining her and that i have here it seems to me that you have a problem of a continual violation as the court that the eighth in fourteenth amendment as you say is a federal court powerless to remedy something that the county and state apparently are not remedy let's spot them all the other arguments about facts and so forth and just address jurisdiction under younger and that big as the place where the federal courts have their power isn't havey as corpus and that we believe this nine hundred three auction is barred under dispositive then the o'shea case and the tartar case the second controlling case we believe under younger younger abstention could not have come out the way they did  but in this context and the requirement is for both younger and if that is so shaken tarred on the one hand and prize or on the other is that there be an opportunity to present these issues in state court first the whole point of this is common to so that the federal court basically stays its hand and lets that the state court address these types of constitutional issues  initially and that your honor in that opportunity exists in the state court system at two different times first in the next business day hearing before a county judge these very same cuss to show arguments could have been brought by any of the nameplate to see or could have been brought on behalf for that matter all that really given less than a minute and we're told not to talk if your honor that's that that's the  earing officer hearing that takes place within twenty four hours you know it's a probable cause and bail set and it's in the informal procedure that was mandated by the supreme court in gerstein not surreal not counseled but clearly consistent with gerstein both in terms of its dealing with the issue of probable cause and in terms of his dealing with the question of bail we would submit consistent with the procedural requirements of due process but my key point here is that after that initial appearance where bail is initially set and in probable cause determined therefore the ability of the state to detain pending trial is determined all on the basic problem because the next business day the the  judges hold a mandatory hearing that is at the serial that is counsel and work counsel could make all of these all of these arguments and that takes place essentially within forty eight hours now to be sure when it's over the over the weekend it can happen that quickly but there's there's no certainly no reason why it has to happen that quickly my point is there's an opportunity then in there to file a havey as corpus petition and at what point do they actually receive counsel in this whole timeline that you gave us because we're talking about people by definition who lack funds so they can't go hire a counselor themselves often but not always a do sperate lack of funds is also equal to a lack of knowledge of the legal system education etc not always but that certainly can happen so when is it that they get council to where they can then know about this timeline and start employing all this let me tell you in two different phases here in connection with all periods relevant to the filing  complaint in the litigation they didn't get counsel until the next business day hearing before a county judge now they the county the county judges have modified their rules so that the initial appearance before the hearing officer judge prado is counseled but but that's that which happens now but it's always been the case that in the next business day hearing indigent defendants were provided with coun at that at that moment or it is kind of like we're going to it's going to happen i got the impression it didn't happen right they don't know you're on i think i can represent to you they are getting that they're actually cancel is authorized to then and it indicates that we would submit just how quickly the havey is process can be undertaken in the state system there it was a rather cation bond proceeding revocation on the day that bond was revoked and there was a hearing for the had on the day that bond was revoked and that the defendant was taken back into custody even the defendant's counsel immediately  and two weeks later the case and that he was corpus petition was denied by the county judge constitutional argument was rejected two weeks later the case was submitted to the texas court of appeals that's in so your honor or your opponent if they could jump up right now would say well yeah but by that two weeks that's kind of the time served everybody pleads guilty to falsely to get out so that again that's fast in a felony case and all of that but in a misdemeanor case where the likelihood is that your sentence is not going to even be two weeks how meaningful is that procedure your honor if the defendant moots out his own case by you know either but by pleading guilty that's not something i think that the that impacts the younger analysis but but but under under texas state law the detained misdemeanor defendant cannot be detained longer than thirty days so your point is is a fair one in terms of that thirty day period but my point to you your honor is this the precedents require that the opportunity to advance this constitutional argument be available and that that our paternity be true be genuine and we would submit to you it is genuine there's two different opportunities the first one in the next day is the next business day hearing before a judge authorized to hear constitutional arguments and in a hay vs proceeding immediately thereupon with full rights of appeal to the texas courts of appeals and again this point would have four closed the resolution the dismissal under o'shea and the subs and the case in tartar and sherry o'shea went beyond just bail issues didn't deal with sentencing which does affect the criminal case of bail doesn't quite affect your guilt innocence or punishment so it isn't our case here is just dealing with the right to be released on bail but o'shea seem to go into other issues that do affect the criminal case do you see a distinction there between our situation and o'shea i would believe that there's a distinction but i believe that the court understood that distinction and separately addressed the proposition about dealing with bail systematic imposition of excessive bail when it would inevitably lead the court into oversight with what the o'shea court called a continuing audit of those state bail proceedings and in fact the court thought that the it basically dismissed this seventh circuits proposition that disavowing an intention or an expectation that there would be continuing involvement by by saying even a periodic reporting requirement that was contemplated would be antithetical the court said to the principals of comedy that were at work in the in connection with the younger doctrine are you you are saying that he is is available and we're delegation it's a class action that the administrative process used by the harris county is is contrary to the state law but if you're saying that they should file hey because you have hundreds of misdemeanor arrest i would guess are you suggesting instead of one class action that solve this allegation of improper administrative issue that you have each individual defendant power havior so you have hundreds of corpus petitions hitting the county courts that each individual younger accords to them to address their laws against the very concious all arguments the plaintiffs would events once they have had a chance to to do that well then that the law at least in texas with full rights to the five a circuit decision the supreme court at least in texas will have been established and so i don't think that the the course that i am suggesting is ordained by o'shea and tartar is one that would lead to the clogging of hades petitions although until the issues were resolved they they would not be resolved in there and there would be litigation no question about it in the state courts that we that judge rosenthal did it let the state have a first bite at the apple is that the i mean i understand that mirrors but you're saying the bite should have been the haiti is proceeding and then ultimately you can have a federal havey is off of that although federal maybe says you know it's very circumscribed in terms of reviewing state court decisions and would be moot d in every case i would think by the time you get a federal court all of that the entire sense you could serve as a misdemeanor defend it would be over i would think everybody worked really fast to be close well your and honor  and our our submission is that the the opportunity available to the to the hague his petition or to the misdemeanor defendant in state courts to advance these very same arguments is all that younger requires and that under these under these precedents that's the state of texas affords that opportunity to see something new in the briefing it in the trial court there was a lot of talk about well in july this is going to happen in july that's going to happen and there's all this stuff floating around now july is in the past that july anyway  has something changed is there new evidence would there be any value to sending any and the injunction has been in effect for a while would there be any value in sending it back for review of the brave new world you know there have been a number of changes that have been taking place harris county was examining the bail system before this litigation got underway it was studying reforms that the community was the debating the issue and as where the defendants before you and the changes were in the all thing in changes have been made for example the i mentioned earlier that the hearing before the hearing officer the initial twenty four hour probable cause bail setting here that is counsel now that the in the twenty four hours yes you're on the next business day hearing which is always been counseled is one in which the county judges now take up the question affirmatively of the bail set if they review it unless the defendant has affirmatively waived it  so they will is again at the next business day hearing before the county judges that is on the table it is always been the case that bail could be contested and challenge at that hearing now it's  it's taken up mandatorily unless it's way they vary but he just sits up a little straighter it when they do the rubber stamp does that really help anything we now they know they're kind of under scrutiny so maybe they sit up and maybe add an extra sentence to their rubber stamp but it has anything fundamentally changed from the evidence found by judge rosenthal you're honorable i want to address that i appreciate you mentioning that we  predicate of the plaintiff's kind of mood and now our argument which is that there are no individualized consideration given to the to the defendant circumstances we believe that is simply clearly erroneous we say that with all due respect believe me to the court to the district court but we believe the district court erred and and clearly so on that point for several different reasons one of the most prominent reasons is this before the before the hearing the twenty four hour hearing but the hearing officers where bai set it takes place pretrial services has a lengthy interview or an interview gathering information from each defendant that information is provided and it deals with their financial circumstances  family ties their residence at the time and place all of the in criminal record previous no shows all of that that information as provided to the hearing officers officer during the hearing that information is available there are individual aist of consideration given to each one of the defendants the other point your honor is that twenty percent according to the record before you or so of the people who go before the hearing officers are ultimately granted a personal bond either by the hearing officer or by the county judge in the next business day  hearing and i see that my initial time a lot a lot of it has expired i haven't hit chance to address the merits at all i guess the one point i would have six minutes for a bottle yes you please the court case david for here is county the hearing officers and judge feels this is the very first court to ever hold that a bail setting policy a policy setting bail is a county policy this court in boston versus lafayette count that this circuit has uniformly rejected attempts to hold local governments liable for constitutional deprivations caused by local judges interpretation and implementation of state law judge rosenthal says in her order that what she's upset about is the wa judicial officers and here's county quote interpret and apply texas law in setting bales i believe that that applies the davis case is very helpful here the davis case talks about standardized countywide procedures for court appointments similar to the standardized county procedures here for setting bail the davis case instructs us to look at the nature of what the judges of what's happening and whether that's a judicial function and i would argue that setting bail is absolutely a judicial function and so digressing local rules the statute lets them do that they have done that and there is criticism of that why is a vatican city so i think it depends on which local rules you're talking about and the local rules that are targeted here are both the written and unwritten rule also customs modifying those local rules that deal with mail setting policies and so to the extent those local rules kind of set the framework or the guidelines for setting bail we're talking about the same thing a judge is doing in an individual case and under davis that would be a judicial function and that's also consistent with johnson the more and hammel the right which held that a county can exercise no authority over state court judges as the latter not county officials that was talking about district court judges here we're can't they be county policy makers their elected judges their county court judges working at the policy makers on rules so they could be to the extent they're administrative but here we don't even get there because they're judicial holes because we're talking about how bella said which is a judicial function you're not accepted and that means that all procedural rules are judicial in your view no i wouldn't necessarily say that but i would say something like you have here where it's a bail schedule that provides a framework and says if this is the offense this is the kind of the guidelines are we then that's a function that typically the judge would start and meet in fact that was a reason that robers and ordered the dell schedules it was to ensure consistency in those decisions and provides a framework so their first few steps are done for them and then they apply to dissolve the sentencing commission of the united states is performing a judicial function when they come up with guidelines no i think it depends on what the guidelines are i mean it's guidelines that are just about you know what time that your house opens sense or right if it's talking about things like when the courthouse opens or you know how the  not but if you're talking about something as essential to the criminal justice process as the setting of bail absolutely that's a difference and i think that it's helpful there if you look at woods from the seventh circuit and because it's the law is there very similar and also egger out of the ninth circuit which this court has relied on a lot in the court appointed cases which says when deciding how or whether to advise arrestees of their rights that's a judicial function even if this function is performed in a way that makes a mockery of those rights and even if the judge fails to follow state law or federal constitutional law that does not make the d in a straight and here you're talking about how one of the things the judge is complaining about is how these procedures are done and how they're set and under egger i would say that's judicial i mean i think my time's up unless you have any other questions the openings in the nation it's very important that we understand exactly what's going on this process because the timing questions are critical everyone in this appeal agrees that there is absolutely no opportunity for someone to raise any of the issues that they raise here into what is being called before this court the next business day setting it's important that you understand that that is the next business day after the twenty four hour hearing so if they get a lawyer for the initial hearing there is a pilot program that was supposedly started in july  where a lawyer is going to be appointed at the twenty four hour hearing but keep in mind that doesn't change any of the concessions that were made below about what happens at that hearing the hearing officer still not allowed to hear evidence they're not allowed to make factual findings let alone by any legal standard  we don't have anything we don't know what's been going on we don't there's nothing in the record it was going on all we have is judge rosenthal's finding that should such counsel be appointed based on the testimony of defendants themselves nothing would meaningfully change that hearing because those judges those hearing officers are actually not permitted to make the factual findings that are required and are not permitted to hear evidence because they're not courts of record on the timing question though what's actually critical to understand is that twenty percent of arrestees wait longer than twenty four hours contrary to texas law for that twenty four hour here then the next business day hearing is obviously if the twenty four hour hearing happens so you're arrested on a thursday the earliest you can have a twenty four hour hearing is on a friday the earliest you can then be seen for with being called the next business day setting which is arraignment is the following monday so the district court may have robust factual findings on this question we know from the evidence that over the over the time period this court analyzed seven thousand people we did ninety six hours or more for that next business day he thirteen thousand people waited seventy two hours or more and twenty six thousand people waited longer than forty eight hours for that here what's the timeframe for that study how many it's the two years preceding the district court's order so january two thousand and fifteen through january of two thousand and seventeen then i think this is a really critical point that i don't think was accurately stated to the court on the opening presentation which is the district court held as a matter of fact that three years up until the filing of this case and then for many months after this case until the evidentiary hearing was held at that next business day hearing people were not even permitted into the courtroom from the holding cell let alone to make the arguments they wanted to make unless they agreed to plead guilty that is not an adequate opportunity to raise the issues that they want to raise in this case they weren't even allowed into the court room and then the district court made another critical factual finding which is are you talking about between before the hearing officer or for the judge before the actual judge they were kept in a factual finding that they weren't even brought into the courtroom at their next business day hearing unless they agreed to plead guilty mr copus or they get a lawyer for both parents it's not true i don't know what's happening right now mr cooper is saying things that aren't in the record and litigated but but nothing about new facts later some extent they exist with undermined the district court's order it's being appealed and in fact the answer is a judge rosenthal already made a factual finding based on the testimony of defendant judges themselves who said first jordan's testimony and finding as a matter of fact that even if they purported to pass a new rule a couple of months before hearing nothing had changed certainly by the time of the hearing in the couple of months since they passed that new rule and she made a factual finding that based on their own internal communications in the test needed to jordan that it wasn't likely that this would change and that's really critical for younger for one more reason in response to your let me ask you this because here's the problem that i see is it looks like the judge tending to solve the problem of the county court judges failing to exercise discretion and act as judges but instead rubber stamping and just wholesale doing one thing has flipped it to taking away all discretion and making them wholesale do the opposite and is that really the right solution the thing is we want judge to act like judges and exercise discretion in the federal courts and stay out of it but jeff rosen hometown that they really weren't doing that solve that by saying now you have to do it all this way in this twenty four hours etc i think it's a very important point to understand which has been conflated in some of the briefing there's a question about the constitutional theory and there's a question about the scope of the relief so ju rosenthal agreed with our narrow theory that in order to detain someone prior to trial to issue a de facto order of pretrial detention you must provide certain safeguards and make certain substantive findings pursuant to certain legal standards a very simple point but then judge rosenthal and this is as experienced as a district court judge gets she heard all of the evidence she made that conclusion which i think is unassailable as a matter of federal constitutional law and then she was told something very important they told her we cannot comply with the procedural and findings requirements because at the twenty four hour hearing officer stage they're not allowed to make findings or hear evidence so here's judge rosenthal put yourself in her position she's just concluded that in order to issue a de facto order of creech o this is an urgent problem that needs to be solved and she's being told we can't solve it she has to and she and she's made a finding that there's tens of thousands of constitutional violations that result from this situation and she's being told in a preliminary injunction context that we can't fix this on our own and so she's left with the question what relief do i order and so a lot of the attacks by appellants and his appeal are on the scope of the relief they're upset that she ordered certain things to happen if if for example those findings and hearings were made that they have to release people and they argue well that's actually hey b s issue you can't order people being released you're taking we are discretion but that's really a question about the scope of the injunction prize or in all of those cases are really about the cause of action it's a twenty four hours in the twenty four hours comes from the state law about probable cause here where is there a case that the u s constitution requires release on an unsecured bond in twenty four hours if you haven't met you know whatever a b c so it becomes both just it just to clarify comes both from a texas state law and their own local rules which require the bail hearings to happen with the twenty four hour probable cause hearing so in on the on the costs the government issue the costs to the government are minimal when they're already required by state law to have these hearings in twenty four hours they could make the findings that that that they are wired to make they could do the inquiries they could ask about ability to pay they're just not doing it discrete factual findings that she made about the harms that exist beyond i'm asking a very specific question that you're not answering which is where in the united states constitution and cases there under does it say you're entitled to  unsecured bond within twenty four hours if you can't pay absent you know extraordinary lotty done that we don't have here i think the answer is that the u s constitution doesn't require any particular form of immediate pretrial release harris county could like the seventy five largest cities in alabama they could offer everyone unsecured release right away but they've made a decision that they're going to have a secured bail schedule having made that decision the constitution bearden turner williams take all the wealth based attention than the need under texas law to find probable cause which you're not challenging that they're finding probable cause in the twenty four hours so where does the then need to do this and secured on all that within the twenty four hours come from in the constitution i think the answer to the court's quo action is in the application of the beard in tate williams phrase or line of cases those cases actually require when you're depriving someone of a fundamental liberty it requires a tailoring analysis and ju did that she took all of the overwhelming evidence about the meet the minimal burden to the government the extraordinary harm to people i mean fifty five people died while being held in jail they could afford and here is going to jail in the six years before lawsuits the tens of thousands constitutional violations th discrete testimony based on hundreds of thousands of cases of harris county that after twenty four hours in jail people actually more likely commit crimes in the future because they lose their jobs they lose their medical care she weighed all of those things so i think the answer to your question it is not like the constitution says forty eight hours when the supreme court ruled in riverside that you have to have a probable cause finding over the fourth minute forty eight hours the question didn't say forty eight hours what the constitution does provide is some basic principles and the principle that we think applies here is if you're going to be detaining someone solely based on their wealth you have to do a good job as the government of minimizing that to ever extent possible and what eight days of testimony and evidence were geared to and the district court was asking that question in these sit in the situation under these conditions in harris county what is a reasonable amount of time given the analysis of the costs and benefits are there for lying in this affidavit i mean what would have if somebody comes and goes oh now i can afford bail you know and it turns out they're you know millionaire or whatever something ridiculous what is the what happens i think it's this i mean our legal system relies to a great extent on the oath in trials of witnesses and i already texas courts rely every single day on people's representations under oath that they can't afford a lawyer it's the same thing it could easily in the district attorney one of the reasons attorney supported this is the district attorney's office could later in a case go back to look at the affidavit and if it turns out the person was wrong or lied about their assets they can be prosecuted for perjury it's a very serious crime what about a less obvious thing somebody you know there's this issue of whether they could afford the bail bond versus the five thousand dollars or whatever and the bail bond might not be that high if the secured bond is a thousand dollars might be one hundred dollars one hundred dollars could be a lot to a person i understand that but if that person is not very wealthy but they're spending money on all kinds of ridiculous things and that's why they don't have any money is that part of the balancing it all is do we just take the person's word for it but the person is out squandering money on all kinds of silly things and that's why they don't have money do you see what i'm saying it seems like we're taking the person's word for it not just versus a millionaire but versus how they're prioritizing what money they do have that's a very fair question i think that gets to your earlier question judge haynes about what are we dealing with here we're dealing with a particular injunction by a particular district court judge in particular circumstances in an ideal world the state court judge would be taking that into account would hear evidence on the question of well did you buy you know a pack of cigarettes with that money instead of order you know have you been spending all your money on drugs instead of in the district  state trial court judge could make a decision about whether the eye can beard and whether the person was willfully you know refusing to pay or had a good faith basis but what does rosenthal found is that they're never even asking the questions about ability to pay they're never taking any evidence on it they're not giving a person an opportunity to be heard faced with those overwhelming systemic customs and practices such that every single person who received a money belt order they couldn't afford in harris county was being defacto without any of the legal findings or process that's required ceased with that judge rosenthal issued an injunction which has a certain scope now they complain about the scope of the injunction so they say for example that you're not allowed to order a release in one hundred three cases we know that's not true right the supreme court and brown versus plata the decades of including the seminal prisoner release case of the seventh circuit in the early eighty's which actually talks about this issue it's just not the case that as a under a district courts equitable this the fourteenth amendment due process equal protection as opposed to a birth of the constitution excessive bail or is it under the eighth amendment the prohibits excessive bail and more of a fourteenth amendment due process equal reasons that you're not allowed to do that to someone post conviction applied to presumptively innocent people as well the second reason prado is salerno itself salerno has two sections in the opinion one of them is ignored by ellis but in that section it analyzes the deprivation of creature liberty under substantive due process it says you have a substantive due process right a fundamental right to preach our liberty now it's also said somehow that these are new arguments we have raised that argument in the complaint in the briefing on the bearded whatever it is think about those cases if you issue an order as a judge a bail or order of release which is what a bail are supposed to be that operates to detain a person because they can't pay what you've done is the functional equivalent o order of preach on the ten that may be ok but what you have to do in that situation is make a certain finding that there's no other condition or combination of conditions that could reasonably meet the government's interests and you have to for the person an opportunity to be heard to present evidence and to make argument about it those are simple due process requirements and judge rosenthal found that they weren't happening and so she was left with the situation how do i remain that situation where these these violations are occurring and and the claim to me that they're not able to do that  the massachusetts supreme court that we just cited to the court every court that has ever heard this question has concluded that an order of release that operates as an order of detention might be ok but it has to meet the findings and procedural requirements of an order every court this ever rule on the question of what findings and procedures are required for border patrol detention now i understand the court's question about timing how do we draw the line is it twenty four hours or forty eight hours resubmit the judge rosenthal based on the evidence that she found didn't abuse her discretion in this preliminary injunction posture aware and determine that in harris county based on the benefits and burdens to the government they could and should in fact are already required to do it under twenty four  hour there's no evidence in the appellate record about how it's going certainly and we had a hearing in front of judge rosenthal earlier this week with some discovery disputes about how to obtain data so that we could actually look to see how it's going but so that we don't know anything in the what's actually going on on the ground right now i've heard reports that it's that that the relief being ordered is going very well partially because you know we represent people that are being released and their constitutional rights aren't being violated anymore that county may have a different takes ten days for that petition to even the docket right so imagine someone gets a lawyer three or four days after they're arrested then they guess presumably could file a petition another seven or ten days keep in mind as rosenthal found as a matter of fact that eighty four percent of people who are detained because they can't afford money bill plead guilty in harris county and they do so in a median of three point two days so these cases are being churned out there's no way someone when they're brought to court for two days or three days or four days is one of the areas where the injunction exercise enormous restraint that is rosenthal nothing about as rosenthal as a legal finding would prohibit harris county from treating those people differently they could even detain people if they wanted to take tomorrow to pass a new rule saying anyone charged with assault aspect of it pierce county for assault cases has already decided that it will release any one charge with an assault if they pay fifty dollars to a bondsman or hundred dollars to a bondsman whatever the ten percent of the amount would be so her order leaves all of that in place in texas or harris county could legislate non wealth based ways of treating people charge of the salt one of the public sector factor that's a good answer exactly here's county has already made policy judgments about public safety in those cases and that's why some of the overheated rhetoric in this appeal about the danger to public safety rings so hollow they would already release all of those people they don't need to do that other jurisdictions like washington d c or the federal system to charge with a serious offense like that they detain you without bond until a judicial officer c please the court doing a full shot for the plaintiffs i want to address the arguments the county is raised by judge change if i can just bill briefly the answer you heard about the twenty four hour provision i think the question before the court is whether the district court abused its broad remedial discretion in is part of the complaint was that there is no discretion everybody's credo like boom boom boom go to jail no bond and the judges are not looking at each case individually and assessing whether there is a right to bail or whether they can afford bail but now under the injunction it's like within twenty four hours if you don't have your hearing you're released that doesn't give the judges any discretion so as she was asking it seems like it's gone the other way  now the judge still don't have any discretion to make a determination if within twenty four hours they're not able for some reason and i have a hearing the injunction says they're released so don't we now have have we now gone too far to the other side and there is still no discretion given to the judge's under the first what we had was everybody gets locked up and now we have a system or everybody gets released and in either system do you have the judge individually look at each case and make an individual decision that's probably have not gone too far in the other direction and it's here here's why the appellate conceded below that they could not comply with the constitutional requirement they could not provide the individual eyes hearings if they now believe that they can't well and so judge rosenthal two thirds rosenthal acted on that concession of the question is was it the use of her discretion to do so if they now believe that they can if they have a different position as mr kerik said a saying this is coming up on interlocutory review the case is going back they will have an opportunity to say circumstances has that has have changed of course a party can always go back to a court that issued an injunction to ask for a modification of the injunction and in order granting or denying a modification is again subject to interlock to repeal the question is in there are three independent arguments we have in response to the counties argument that texas law does not give the sheriff the authority to cure the constitutional violations you spoke to one of them and i want to address that in a minute but i do want to lay out the other two because they're each independent grounds for rejecting this argument and the other two in fact are ways that the county agrees in its brief in this court the sheriff can cure the violation so number one under texas code of criminal procedure article fourteen point zero six see the sheriff can immediately released without any bail any harris county resident arrested for a number of a numerated in fourteen zero six e class a or b misdemeanor violations and if the sheriff did that as to any misdemeanor arrestee who was otherwise eligible for release on no warrants no immigration hold nothing like that but who could not afford to pay secured bail in the amount listed in the pre set bail schedule that would cure the constitutional violations in the county agrees on pages twenty eight to twenty nine of its opening brief the sheriff has that power number two under article texas court of criminal procedure article seventeen point one five and seventeen point two zero the sheriff can instead of bringing a misdemeanor arrest you before a magistrate can set secured bail himself of one penny the county agrees on page twenty seven of its reply brief sheriff has that power under texas law and again if the sheriff did that that would cure the constitutional violation so you don't even need to get to the question we were asking judge change but let me go to it what's unusual here two things number one texas law as interpreted repeatedly by this court to do h jones soda versus ortiz other cases we cite in our brief texas law gives the sheriff an independent obligation to assure himself that anyone under his custody is lawfully detained and why i don't think it's so shocking judge change is what the texas legislature is doing here is saying we're talking about pretrial detention last the fundamental things don't get much more fundamental than that and people are human judges make mistakes occasionally and if we're in that situation we're talking about somebody liberty we want to second check we want a second official elected by the same voters that elected the county judges to make sure bring his or her own independent it's going to bear and judge haynes so i certainly could not disregard any order of this court i don't have that authority under texas law the texas legislature has given it to the texas judges it only applies in very narrow circumstances where there is not even a good faith belief that the detainee a sub is the subject of a lot of attention order and there is no challenge in this court to the district court's factual finding that that good faith belief was not felt by the county sheriff here as to those who were the subject of wealth based detention orders in fact the sheriff testified that he knows such detention is unconstitutional and that's not surprising because remember what these orders essentially said indeed i disagree on something has to be a third person or one of those two has to be primary and it seems like a judge to me the law trained person etc is the better person to make the decision it wants constitutional or not but  submit the texas legislature has made a different judgment that this court should respect for purposes of modelling again you don't even need to get there if you agree with either one of the other two arguments that i laid out i do want to turn to one other argument that the county makes about the sheriff which is that he cannot be enjoin additional orders would blow a massive hole in the protections offered by section one hundred eighty three not surprisingly county offers no authority no case in which that argument has been accepted in fact no argument to our knowledge which it has even been may the last thing i want to say your hon that this argument that i just discussed is the only one the county races that would have any significant effect on the injunction even if everything else they argued were valid the injunction would largely stand unaffected because none of it goes to and there is no other argument regarding the district court's alternative holding that the sheriff who is the subject of the injunction can be enjoined as a state actor under ex parte young indeed that is most of what they are arguing that he is a state official so irrespective of what they say s thank you very much your honor few very brief points here first of all about to come back to the rubber stamp point all every single one of the hearing officers at the county judges at the time the this case was litigated put in sworn declarations to the effect that they do not rubber stamp they do an individualized consideration of all the factors governing this under state law including ability to pay that they consider whether or not unsecured bond is is appropriate in every case and counsel suggested that the hearing officers don't even inquire into financial information of each individual again the pretrial service this is plaintiff o'donnell's pretrial services report it's got information in it judge prado going to every one of the factors that individualized consideration would would entail second counsel say suggest that the there's a farm and filled out you check do you want a car no do you have a house the remarried whatever and then you go buy that farm and whatever comes out that's e individual defendant is before the hearing officer at least by video and end of this hearing is a big part gets well your honor it's certainly true that oftentimes the effort by one of the defendants to speak is is interrupted by a hearing officer out of concern that he will incriminate himself please look at the declarations before you the hearing officers who were accused of that made clear of your honor that the they can speak there is interchange look at instead of the cherry picked videos look at a genuinely representative number of them you will see that individual consideration is given the hearing officers go through this information it's gathered in order that individualized considerations can be given that's it's only purpose counsel said that the next business day that hearing is the the witness would your would your client typically be brought into the courtroom if they were not pleading guilty typically no but yes sometimes if there is particular business that the court or the defendant or the prosecutor needs to take up before the court then the defendant or client is brought out in the court room if there's no particular reason then not in that the point and it goes on to say if the issue is bail then they're brought into the courtroom so a even more importantly your honor joe judge prado that the hearing is counseled the lawyer for the defendant is in the courtroom and can make any challenge in an offer any a the client is the yes there is a reason for the client to be there and the record suggests that one of those reasons when the client is brought in is when bail is being questioned but my point is whether the defendant is there or not the lawyer is there and if there's an objection to bail the lawyer can make it so the lawyer is there but his client might not be there might not be there that's right here so how do you communicate with your client if you're at a hearing representing your client and your client isn't even there your honor that the lawyer in the client presumably have conferred if if the if and if there is reason if the client believes that we should challenge the bail setting here then the can then the the records indicates that the defendant the client is brought into the courtroom only is there one county court judge you kind of does these for a week or whatever sort of like how they do t r rosa around the civil district side because it seems like you've got county court judges trying cases you've got them doing all kinds of stuff and then they're also having to do these hundreds of thousands of bees next day hearings i mean i'm just do they appoint them to one judge per week like they do in twenty four hours your honor if they are right and and they haven't cited any case that in any way suggests that the constitution requires that this take place in twenty four hours and in fact the gerstein case and riverside case make clear that the probable cause hearing can has to take place within forty eight hours and we would submit to you it makes no sense to suggest the bail setting hearing should take place before that and in fact the reason forty eight hours was