IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20466

MARANDA LYNN ODONNELL, 

Plaintiff−Appellee,

versus

PAULA GOODHART; BILL HARMON; NATALIE C. FLEMING;

JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY;

PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON;

DAN SPJUT; JUDGE DIANE BULL; JUDGE ROBIN BROWN;

DONALD SMYTH; JEAN HUGHES, 

Defendants−Appellants.

* * * * *

LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD,

Plaintiffs−Appellees,

versus

HARRIS COUNTY, TEXAS, ET AL.,

Defendant.

PAULA GOODHART; BILL HARMON; NATALIE C. FLEMING;

JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY;

PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON;

DAN SPJUT; JUDGE DIANE BULL; JUDGE ROBIN BROWN;

DONALD SMYTH; JEAN HUGHES, 

Defendants−Appellants.

United States Court of Appeals

Fifth Circuit

FILED

August 14, 2018

Lyle W. Cayce

Clerk

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Appeal from the United States District Court 

for the Southern District of Texas

Before SMITH, GRAVES, and DUNCAN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This is a motion for stay pending appeal. We grant the stay.

I.

Plaintiffs brought a class action against Harris County, Texas, and a 

number of its officials—including County Judges,1 Hearing Officers, and the 

Sheriff (collectively, the “County”)2—under 42 U.S.C. § 1983, alleging the 

County’s system of setting bail for indigent misdemeanor arrestees violates

Texas statutory and constitutional law and the Equal Protection and Due Process Clauses of the Fourteenth Amendment.3

 

1 The parties use the term “County Judges” to refer to the judges of the County Criminal Courts of Law of Harris County, so we do likewise. That term does not refer to the 

County Judge, who is the head of the County Commissioners’ Court.

2 Only fourteen of the sixteen County Judges join in the instant appeal. The Sheriff 

and two County Judges chose not to join. We use “Fourteen Judges” or “the Judges” when 

referring to the defendants.

3 For a full review of Texas’s bail system and the challenges to it, see ODonnell v. 

Harris Cty. (ODonnell I), 892 F.3d 147, 152–55 (5th Cir. 2018) (opinion on petition for rehearing). For misdemeanors in 2016 when suit was filed, bail ranged from $500 to $5,000,

depending on the crime and the arrestee’s criminal history. Under the 2017 schedule, however, arrestees are classified based on their crime and risk score (determined using the Laura 

and John Arnold Foundation Public Safety Assessment). The 2017 schedule utilizes twenty 

categories. For seven of those, bail ranges from $500 to $2,000. If an arrestee in one of those 

seven cannot post bail, he is presumptively eligible for an unsecured bond once he appears

before the magistrate. Alternatively, to facilitate earlier release, some of those arrestees can 

be brought before a Hearing Officer for a determination of probable cause. The Hearing 

Officer can then grant a personal bond and release the arrestee. The arrestees in the other 

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After a hearing, the district court granted Plaintiffs’ motion for a preliminary injunction, finding that they were likely to succeed on their procedural due process and equal protection claims. We affirmed in part and 

reversed in part. ODonnell I, 892 F.3d at 152–55.4 We remanded for a revised 

injunction “consistent with this opinion.” Id. at 152. That revised injunction 

was to be “narrowly tailored to cure the constitutional deficiencies the district

court properly identified.” Id. at 166–67. We provided a model injunction but 

left “the details to the district court’s discretion.” Id. at 164.

On remand, the district court adopted the model injunction but added

four provisions of its own—Sections 7, 8, 9, and 16. Section 7 applies to all 

misdemeanor arrestees who (a) are not subject to a formal hold,5 (b) have 

executed an affidavit of financial condition showing inability to pay, and

(c) have not been granted release on unsecured bond. The injunction directs 

the County to release them if they would have been released had they posted 

bond. These arrestees must be released within “the same time frame of 

release” as an arrestee who posted bond, and “[v]erification of references must 

not delay release.” Revised PI § 7, App. 4–5.

In other words, the County cannot hold indigent arrestees for the 

48 hours preceding their bail hearing if the same individual would have been 

released had he been able to post bond. The district court explained that that 

 

thirteen categories (arrestees deemed a sufficiently serious risk) do not have bail set at the 

time of arrest but, instead, are detained until they are brought before the magistrate, who 

then determines the amount of bail.

4 On petition for rehearing, an initial opinion, 882 F.3d 528 (5th Cir. 2018), was withdrawn and replaced by ODonnell I.

5 Formal holds include a federal immigration detainer or an outstanding warrant from 

another county or municipal authority, a pending finding of mental illness or intellectual 

disability, family-violence detention procedures, and a medical condition that prevents participation in the pretrial bail system.

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provision is to prevent those unable to afford bail “from being detained longer 

than those able to pay secured money bail before receiving a hearing and individual assessment.” Id.

Except for formal holds, Section 8 requires the County to release, on 

unsecured personal bond, all misdemeanor arrestees who have not had a hearing and individual assessment within 48 hours. The County may require their 

return for a hearing but cannot hold arrestees “after the 48th hour after their 

arrest.” Revised PI § 8, App. 6.

The district court justified Section 8 as addressing the concern of “arrestees being detained until case disposition and pleading guilty to secure faster 

release from pretrial detention.” Revised PI Op. at 12, App. 21 (quoting Odonnell I, 892 F.3d at 166). Again, such arrestees could be required to return for 

an individualized hearing but could not be held beyond 48 hours. Id. at 13, 

App. 22.

Section 9 requires the County to implement procedures to comply with

Section 8. Upon release, the arrestee will be subject to the bail amount previously set until his new hearing, but that amount will be imposed on an 

unsecured basis. In absentia hearings do not satisfy the 48-hour rule.

Section 16 applies the relief to “misdemeanor arrestees who are rearrested on misdemeanor charges only or on warrants for failing to appear 

while released before trial on bond (either secured or unsecured).” Revised PI

§ 16, App. 8. The decisionmaker is free to consider these facts at the individual 

assessment hearing but must provide repeat offenders the same protections, 

in advance of that hearing, as any other first-time arrestee. Revised PI Op. 

at 16–17. App. 25–26.

On July 10, 2018, the Fourteen Judges filed this appeal of the 

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preliminary injunction and moved, in the district court, for a stay, pending 

appeal, of Sections 7, 8, 9, and 16. The district court denied their motion. On 

July 27, 2018, Fourteen County Judges filed an emergency motion with this 

court, requesting a stay only of those four sections set to go into effect at 12:01 

a.m. on July 30, 2018. We issued an emergency stay to allow time for full consideration of the motion, and we heard oral argument on the motion on 

August 7, 2018. We now grant the motion and enter a stay of Sections 7, 8, 9, 

and 16 pending plenary resolution of this appeal by a merits panel.

II.

A stay pending appeal “is not a matter of right.” Nken v. Holder, 556 

U.S. 418, 427 (2009) (quotation marks omitted). We consider

(1) whether the stay applicant has made a strong showing that he 

is likely to succeed on the merits; (2) whether the applicant will be 

irreparably injured absent a stay; (3) whether issuance of a stay 

will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Veasey v. Abbott, 870 F.3d 387, 391 (5th Cir. 2017) (per curiam) (quoting Nken, 

556 U.S. at 426). The first two factors are the most critical. Barber v. Bryant, 

833 F.3d 510, 511 (5th Cir. 2016).

A.

The Fourteen Judges offer seven reasons why they are likely to succeed 

on the merits: (1) The revised injunction violates the mandate rule; (2) the 

revised injunction is overbroad such that it exceeds the limits of a federal 

court’s power; (3) the revised injunction violates Younger v. Harris, 401 U.S. 

37 (1971); (4) the revised injunction violates Preiser v. Rodriguez, 411 U.S. 475 

(1973); (5) the revised injunction violates the Eighth Amendment; (6) the Constitution does not require mandatory release of those who cannot afford bail; 

and (7) the Constitution does not require mandatory release of those detained 

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more than 48 hours without a hearing. Because the Fourteen Judges are likely 

to succeed on the merits as to the first two and the last two grounds, we need 

not―and do not―reach the Younger, Preiser, or Eighth Amendment theories.

1.

“[T]he mandate rule compels compliance on remand with the dictates of 

a superior court and forecloses relitigation of issues expressly or impliedly 

decided by the appellate court.” Gene & Gene, L.L.C. v. BioPay, L.L.C., 

624 F.3d 698, 702 (5th Cir. 2010). The district court “must implement both the 

letter and the spirit of the appellate court’s mandate.”6 “[D]istrict courts are 

guided by the Supreme Court’s instruction that ‘the scope of injunctive relief 

is dictated by the extent of the violation established.’” ODonnell I, 892 F.3d at 

163 (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)). “The district 

court must narrowly tailor an injunction to remedy the specific action which 

gives rise to the order.” John Doe # 1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 

2004).

The ODonnell I panel clarified that under both the Due Process and 

Equal Protection Clauses, the precise “constitutional defect in the process 

afforded was the automatic imposition of pretrial detention on indigent misdemeanor arrestees.”7 Thus, individualized hearings after which magistrates 

 

6 United States v. McCrimmon, 443 F.3d 454, 460 (5th Cir. 2006) (quotation marks 

omitted). The mandate rule is subject to three exceptions—(1) Evidence at a later trial is 

substantially different; (2) there is an intervening change of law; (3) the prior decision is 

clearly erroneous and works a manifest injustice. See Ball v. LeBlanc, 881 F.3d 346, 351 (5th 

Cir. 2018), petition for cert. filed (Aug. 3, 2018) (No. 18-162). Neither side contends that any 

of those exceptions applies here.

7 ODonnell I, 892 F.3d at 160, 163 (“The fundamental source of constitutional deficiency in the due process and equal protection analyses is the same: the County’s mechanical 

application of the secured bail schedule without regard for the individual arrestee’s personal 

circumstances.”).

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had to “specifically enunciate their individualized, case-specific reasons for 

[imposing bail] is a sufficient remedy.” Id. at 160.8 The procedures required 

for such hearings were “notice, an opportunity to be heard and submit evidence 

within 48 hours of arrest, and a reasoned decision by an impartial decisionmaker.” Id. at 163. The panel then provided detailed guidance on how a properly crafted injunction should look, cautioning that it should not “amount[] to 

the outright elimination of secured bail for indigent misdemeanor arrestees.”9

Despite the district court’s diligent and well-intentioned effort to comply 

with ODonnell I, Section 7 easily violates the mandate, which explicitly found 

that individualized hearings would remedy the identified procedural violations. The requirement that such a hearing be held within 48 hours is applied 

to those who cannot afford the prescheduled bond. In other words, the panel 

saw the 48-hour limit as sufficient to protect indigent arrestees from being 

detained for too long pending their hearings. See id. at 165; Revised PI § 6, 

App. 4. 

The identified violation was the automatic imposition of bail. Individualized hearings fix that problem, so immediate release is more relief than 

required and thus violates the mandate rule and is not required by the 

Constitution. Further, though the ODonnell I panel refused to find clear error 

in the district court’s ruling that the County Judges had not shown a “link 

between financial conditions of release and appearance at trial or law-abiding 

 

8 Id. at 163 (“Thus, the equitable remedy necessary to cure the constitutional 

infirmities arising under both clauses is the same: the County must implement the 

constitutionally-necessary procedures to engage in a case-by-case evaluation of a given 

arrestee’s circumstances.”). 

9 Id. (“That remedy makes some sense if one assumes a fundamental substantive due 

process right to be free from any form of wealth-based detention. But . . . no such right is in 

view.”).

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behavior before trial,”10 the panel recognized that the primary purpose of bail 

is “to secure the presence of the defendant in court.”11 Hence, the panel cautioned that an “outright elimination of secured bail for indigent misdemeanor 

arrestees” was an inappropriate remedy. ODonnell I, 892 F.3d at 163. Because 

the new injunction again orders release of an indigent arrestee with no strings 

attached and before an opportunity for the County to provide the strings, the 

injunction circumvents the purpose of bail and ultimately eliminates secured 

bail, all in violation of ODonnell I.

Release might be warranted were “one [to] assume[] a fundamental substantive due process right to be free from any form of wealth-based detention. 

But . . . no such right is in view.” Id. Narrowing the applicability of the relief 

does not make it any more permissible. Secured bail was not to be eliminated 

for any category of indigent arrestees, no matter how narrow. 

But Section 7 does just that. Preserving the magistrates’ discretion posthearing does not correct the violation of the explicit mandate not to eliminate 

secured bail. Some wealth-based detention is permissible and was contemplated by the panel. See id. at 163.

Additionally, ODonnell I remanded so the district court could “craft a 

revised injunction—one that is narrowly tailored to cure the constitutional 

deficiencies the district court properly identified.” Id. at 166–67. The problem 

that the district court claims to address via Section 7 is not a deficiency that 

was originally identified, so it falls outside the confines of our narrow remand. 

The district court frames the problem of what to do with arrestees during 

 

10 Id. at 162 (quotation marks omitted).

11 Id. at 158 (quotation marks omitted) (“Texas state law creates a right to bail that 

appropriately weighs the detainees’ interest in pretrial release and the court’s interest in 

securing the detainee’s attendance.”).

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the 48-hour prehearing window as one arising after the panel issued its ruling 

that included a sample injunction. Revised PI Op. at 9, App.18. With all due 

respect, that is not so. The original injunction contained the requirement that 

a hearing be held within 24 hours. Thus, the same issue of what to do with 

arrestees during the gap between arrest and hearing—be it 24 or 48 hours—

was always at issue and could have been addressed during the initial 

proceedings. 

Remand is not the time to bring new issues that could have been raised 

initially.12 Thus, Section 7 plainly violates the mandate rule, and the Fourteen 

Judges are likely to succeed on the merits as to that section.

Sections 8 and 9 order the immediate release of any indigent detainee

who is not provided an individualized hearing within 48 hours of detainment. 

ODonnell I, 892 F.3d at 160, addressed whether a hearing must occur within 

24 hours, and it determined that 48 hours was sufficient under the Constitution. It did not, however, directly announce the remedy if a hearing does not 

occur within that timeframe. But in the model injunction, the proposed remedy 

for failure to comply with that requirement was for the County to make weekly 

reports to the district court identifying any delays and to inform the detainees’ 

counsel or next of kin about the delays. Id. at 166. And, only “[a] pattern of 

delays might warrant further relief.” Id. (emphasis added). 

As explained, ODonnell I did not require the district court to adopt the 

model injunction word for word but instead left “the details to the district 

court’s discretion.” Id. at 164. Despite that latitude, the mandate that the 

 

12 McCrimmon, 443 F.3d at 459 (“All other issues not arising out of this court’s ruling 

and not raised before the appeals court, which could have been brought in the original appeal, 

are not proper for reconsideration by the district court below.”); see also Henderson v. Stalder, 

407 F.3d 351, 354 (5th Cir. 2005).

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district court craft a narrowly tailored injunction is binding. The proposed 

relief of weekly progress reports and notification of counsel/kin was deemed 

sufficient to fix the constitutional deficiency. The district court was to monitor 

the situation for a pattern of violations and only then take possible corrective 

action. 

Anything broader than that remedy violates any reasonable reading of 

the mandate. And at the very least, the injunction provides broader relief than 

necessary, as the model injunction illustrates. Sections 8 and 9 are definitively 

overbroad and arguably violative of the mandate rule, so the Fourteen Judges 

are likely to succeed on the merits as to those sections as well.13

2.

The Due Process and Equal Protection Clauses do not require the release 

required in Section 7. The relief would be warranted under due process only 

were a substantive right to release at issue. But the ODonnell I panel already 

found that the substantive right to release on “sufficient sureties” is “not purely 

defined by what the detainee can afford” and “does not create an automatic 

right to pretrial release.” ODonnell I, 892 F.3d at 158.

Nor does the Equal Protection Clause require the release imposed by 

Section 7. The threshold question is the proper standard of review. The Odonnell I panel found the exception in San Antonio Independent School District v. 

Rodriguez,14 to be applicable such that heightened scrutiny applied to the bail 

 

13 Because Section 16 grants the relief ordered in Sections 7, 8, and 9 to a particular 

category of arrestees, it rises and falls on the merits with those sections and does not require 

independent consideration.

14 411 U.S. 1, 20 (1973) (concluding that indigents receive heightened scrutiny where 

(1) “because of their impecunity they were completely unable to pay for some desired benefit,” 

and (2) “as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit”).

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schedule. The release under Section 7, however, presents a narrower concern

that is subject only to rational basis review because it is premised solely on 

inability to afford bail, as distinguished from inability to afford bail plus the 

absence of meaningful consideration of other possible alternatives. See id.

at 161.

Caselaw bears out that distinction. An Equal Protection Claim that an 

indigent “person spends more time incarcerated than a wealthier person” is 

reviewed for a rational basis.15 The 48-hour detention claim is based solely on

the premise of inability to afford, as the detention itself is part of the remedy 

the panel created to afford arrestees more process.

The parties’ contentions highlight that both the standard of review and 

the underlying merits of this issue are a challenge because of the level of 

generality. Looking at the detention alone, Plaintiffs assert the same constitutional deficiency the court found in the County’s bail system: Identical 

arrestees are invidiously discriminated against on account of wealth. The 

Judges, however, frame the issue as one of disparate impact: The remedy to 

the automatic detention of the indigent is more process to allow them alternatives. Those who cannot afford the set bail are entitled to an individualized 

hearing within 48 hours to determine whether lowering that bail would be 

release on sufficient sureties.

The latter view is by far the better one. Plaintiffs artificially isolate a 

part of the remedy that, on its own, appears to be the same violation found in 

 

15 Doyle v. Elsea, 658 F.2d 512, 518 (7th Cir. 1981) (cited favorably by Smith v. U.S. 

Parole Comm’n, 752 F.2d 1056, 1059 (5th Cir. 1985) (applying rational basis review and finding that “unconstitutional wealth discrimination simply is not involved by this allegedly disparate treatment that results from Parole Commission policies that serve rationally legitimate, articulated governmental policies in the administration of parole violations [that result 

in increased jail time for those unable to afford bail]”)); see also McGinnis v. Royster, 410 U.S. 

263, 270 (1973).

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the first instance. Asking what the proper remedy would be reveals the 

weakness of that position. Were we to find the 48-hour detention improper, we

would have to affirm the district court’s elimination of secured bail for the category of arrestees addressed in Section 7. That is expressly what ODonnell I

forbids. That panel found that a procedural violation is subject to procedural 

relief. That some arrestees would continue to afford and pay bail while others 

would avail themselves of the new hearing within 48 hours is an inherent part 

of this calculus.

Now that the requirement of a hearing is in place, the only remaining 

contention about the 48-hour window concerns only the inability to afford bail. 

And that is an equal protection claim consistently rejected on rational-basis 

review.16 That does not call into question ODonnell I’s application of 

intermediate scrutiny or finding of a violation. 

In ODonnell I, the inability to afford bail was coupled with the lack of 

meaningful considerations of alternatives. Here, however, the alternative is 

the 48-hour detention and hearing. In its original conclusion that the imposition of automatic bail violated due process, the panel “boiled down” the violation to this situation:

[T]ake two misdemeanor arrestees who are identical in every 

way—same charge, same criminal backgrounds, same circumstances, etc.—except that one is wealthy and one is indigent. . . . 

One arrestee is able to post bond, and the other is not. As a result, 

the wealthy arrestee is less likely to plead guilty, more likely to 

receive a shorter sentence or be acquitted, and less likely to bear 

the social costs of incarceration. The poor arrestee, by contrast, 

must bear the brunt of all of these, simply because he has less 

 

16 See, e.g., McGinnis, 410 U.S. at 270; Smith, 752 F.2d at 1059. For example, a state 

scheme allowing good-time credit “resulted in longer incarceration for those unable to afford 

bail. Yet the Supreme Court, applying a rational-basis analysis, upheld the scheme.” Doyle, 

658 F.2d at 518 (discussing McGinnis).

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money than his wealthy counterpart. The district court held that 

this state of affairs violates the equal protection clause, and we 

agree.

ODonnell I, 892 F.3d at 163.

That last piece is critical. Detention of indigent arrestees and release of 

wealthier ones is not constitutionally infirm purely because of the length of 

detention. Instead, the court considered the consequences of such detention: 

the likelihood of pleading guilty, the ultimate sentence given, and the social 

cost of a potentially lengthy pretrial incarceration.

None of these concerns comes to bear on the alleged problem Section 7 

aims to cure. The prehearing detention is capped at 48 hours. Measures are 

in place to address violations of that procedural safeguard. Misdemeanor 

arrestees awaiting their individualized bail hearing do not face the same dire 

prospects of “bear[ing] the brunt” of a lengthy pretrial incarceration caused by 

an unconstitutional bail system. The individualized hearing imposed by the 

district court as modeled on the panel’s suggestions is sufficient to cure the 

automatic imposition of bail. It does so in a way that is rationally related to 

the state’s interest in securing the appearance of arrestees. See id. at 164–66.

3.

Sections 8, 9, and 16 are likewise not constitutionally required. The district court described those sections as consistent with ODonnell I, concluding 

that the production of a report of those awaiting a hearing does not preclude 

the remedy of release. Id. That well-meant reasoning does not hold water. 

ODonnell I expressly provided only procedural relief.17 The grant of automatic 

 

17 ODonnell I, 892 F.3d at 160, 163 (“There is a significant mismatch between the 

district court’s procedure-focused legal analysis and the sweeping injunction it implemented. . . . [T]he equitable remedy necessary to cure the constitutional infirmities arising 

under both clauses is the same: the County must implement the constitutionally-necessary 

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release smuggles in a substantive remedy via a procedural harm. That goes 

too far. The due process and equal protection relief found sufficient in Odonnell I did not contemplate release, and it follows that such relief is improper.

B.

The Judges have made an adequate showing to satisfy the remaining 

three factors. They and the public are harmed by enjoining the County’s bail 

system. And given their likelihood of success on the merits, any harm to 

Plaintiffs, standing alone, does not outweigh the other factors. See Planned 

Parenthood of Greater Tex. Surgical Health Servs v. Abbott, 734 F.3d 406, 419 

(5th Cir. 2013).

III.

In sum, the expansive injunction entered on remand repeats the mistake 

of the original injunction: It “amounts to the outright elimination of secured 

bail for indigent misdemeanor arrestees.” ODonnell, 892 F.3d at 163. But 

there is “no such . . . fundamental substantive due process right to be free from 

any form of wealth-based detention.” Id. “The sweeping injunction is 

overbroad.” Id.

The motion for stay, pending appeal, of Sections 7, 8, 9, and 16 is

GRANTED.

 

procedures to engage in a case-by-case evaluation of a given arrestee’s circumstances, taking 

into account the various factors required by Texas state law (only one of which is ability to 

pay).”).

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JAMES E. GRAVES, JR., Circuit Judge, dissenting:

Harris County’s unconstitutional bail practices will continue to deny 

equal protection and due process to indigent misdemeanor arrestees unless the 

amended preliminary injunction is fully and immediately implemented. “Such 

a denial is a misfit in a country dedicated to affording equal justice to all and 

special privileges to none in the administration of its criminal law.” Griffin v. 

Illinois, 351 U.S. 12, 19 (1956).

The judges of Harris County Criminal Courts at Law Nos. 1 through 13 

and 15 move for a partial stay, pending appeal, of the district court’s amended 

order of preliminary injunction. The decision whether to grant a motion for 

stay pending appeal is governed by four factors: “(1) whether the stay applicant 

has made a strong showing that he is likely to succeed on the merits; (2) 

whether the applicant will be irreparably injured absent a stay; (3) whether 

issuance of the stay will substantially injure the other parties interested in the 

proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 

418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “The 

first two factors . . . are the most critical.” Id. As the parties seeking a stay, the 

judges bear the burden of satisfying these four factors. Id. at 433–34; Ruiz v. 

Estelle, 666 F.2d 854, 856 (5th Cir. 1982). They have satisfied none. I would 

therefore deny their motion.

1. The judges are unlikely to succeed on the merits of their appeal.

“[T]he mandate rule compels compliance on remand with the dictates of 

a superior court and forecloses relitigation of issues expressly or impliedly 

decided by the appellate court.” United States v. Lee, 358 F.3d 315, 321 (5th 

Cir. 2004) (citing United States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993)). The 

judges argue that Sections 7 and 8 of the amended injunction violate this 

court’s mandate in ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018) 

(ODonnell I), because they require the release, on personal bond, of certain 

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misdemeanor arrestees in specified circumstances.1 ODonnell I does not 

contain an “explicit directive[]” against the remedies provided by Sections 7 

and 8. See Lee, 358 F.3d at 321 (quoting United States v. Matthews, 312 F.3d 

652, 657 (5th Cir. 2002)). Thus, to prevail on their mandate-rule argument, the 

judges must demonstrate that such a proscription is a “necessary implication” 

of this court’s opinion. See id. at 320 (citing Crowe v. Smith, 261 F.3d 558, 562 

(5th Cir. 2001)). When construing an appellate court’s mandate, a district court 

must “tak[e] into account the circumstances that [the appellate court’s] opinion 

embraces.” Sobley v. S. Nat. Gas Co., 302 F.3d 325, 333 (5th Cir. 2002). 

This court’s opinion in ODonnell I was directed, not to every conceivable 

remedy the district court might have entered, but to the district court’s original 

preliminary injunction and must therefore be read in light of that order’s 

particular provisions. Like Sections 7 and 8 of the amended injunction, 

Sections 2 and 3 of the original injunction required misdemeanor defendants 

who satisfied certain criteria to be released on unsecured personal bond in 

specified circumstances. But unlike Sections 7 and 8 of the amended 

injunction—both of which expressly state that the county “may require 

misdemeanor arrestees who are released on unsecured personal bonds under 

this Section to return for a hearing and individual assessment”—nothing 

permitted county officials to require defendants released under the original 

injunction to return for a hearing at which secured money bail could be

imposed if necessary to provide “sufficient sureties.” This is a crucial 

distinction. By failing to account for the county’s “interest in assurance,” 

ODonnell I, 892 F.3d at 158, the original injunction’s open-ended release 

 

1 The judges also challenge Sections 9 and 16 of the amended injunction, but since

those provisions largely depend on Sections 7 and 8, they do not warrant separate discussion 

here.

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provisions “amount[ed] to the outright elimination of secured bail for indigent 

misdemeanor arrestees,” id. at 163. Because Sections 7 and 8 of the amended 

injunction preserve the county’s ability to impose secured bail on all 

misdemeanor arrestees, they do not “create an automatic right to pretrial 

release,” id. at 158, and thus fully comport with ODonnell I’s mandate.

The amended preliminary injunction is also narrowly tailored to the 

equal protection and due process violations affirmed by this court in ODonnell 

I. See id. at 157–63.

Section 7 of the amended injunction requires, with various exceptions, 

that misdemeanor arrestees who “would otherwise be released after arrest and 

before a hearing and individual assessment . . . if not for their inability to pay 

the prescheduled or other secured financial conditions of release” must be 

released “on the same time frame” as “a misdemeanor arrestee who is able to 

pay secured money bail.” By ensuring that misdemeanor arrestees are not 

detained before they receive an individualized hearing solely because of their 

inability to afford a preset amount of secured money bail, Section 7 aims to 

prevent county officials from violating the Equal Protection Clause. It is 

narrowly tailored to that purpose. Because it requires release only to the extent 

that county officials choose to engage in wealth-based detention through the 

use of secured money bail, Section 7 itself does not create any entitlement to 

release. Furthermore, Section 7 in no way eliminates secured money bail, 

which may still be imposed at an individualized hearing.

However thorough and fair it may be, an individualized hearing 48 hours 

after arrest cannot “fix” the deprivation of liberty and equal protection suffered 

by an indigent misdemeanor arrestee who is automatically detained prior to

that hearing “solely because [she is] too poor to pay” a preset amount of secured 

money bail. See Bearden v. Georgia, 461 U.S. 660, 664 (1983). The majority 

contends that detention before the individualized hearing “is subject only to 

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rational basis review because it is premised solely on inability to afford bail, as 

distinguished from inability to afford bail plus the absence of meaningful 

consideration of other possible alternatives.” In addition to being foreclosed by 

ODonnell I’s holding that heightened scrutiny—not rational basis review—

applies here, 892 F.3d at 161–62 & n.6, the majority’s argument squarely 

contravenes Supreme Court precedent. Indigent misdemeanor arrestees who 

are detained prior to their individualized hearings solely because they cannot 

afford secured money bail do not receive any “meaningful consideration of 

other possible alternatives” that would enable their pre-hearing release. 

Rather, they “share[] two distinguishing characteristics” that trigger 

heightened scrutiny: (1) “because of their impecunity they [are] completely 

unable to pay for some desired benefit”; and (2) “as a consequence, they 

sustain[] an absolute deprivation of a meaningful opportunity to enjoy that 

benefit.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 20 (1973); 

accord ODonnell I, 892 F.3d at 161–62. Accordingly, Williams v. Illinois, 399 

U.S. 235 (1970), Tate v. Short, 401 U.S. 395 (1971), and Bearden control this 

case, and the majority’s suggestion that this is an issue of “disparate impact” 

is unavailing. See M.L.B. v. S.L.J., 519 U.S. 102, 127 (1996) (“Sanctions of the 

Williams genre . . . are not merely disproportionate in impact. Rather, they are 

wholly contingent on one’s ability to pay, and thus ‘visi[t] different 

consequences on two categories of persons’; they apply to all indigents and do 

not reach anyone outside that class.” (quoting Williams, 399 U.S. at 242)).2

 

2 The sole Supreme Court decision that the majority cites to support its application 

of rational basis review is McGinnis v. Royster, 410 U.S. 263 (1973). The equal protection 

claim in McGinnis, however, involved a distinction that a state statute drew between time 

served in state prisons and time served in county jails. Id. at 268–72. While the Court 

indicated that this distinction adversely affected “those state prisoners unable to afford or 

otherwise qualify for bail prior to trial,” id. at 268 (emphasis added), it did not analyze the 

claim in terms of invidious discrimination against the indigent. The majority also cites Doyle 

v. Elsea, 658 F.2d 512 (7th Cir. 1981), and Smith v. United States Parole Commission, 752 

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Section 8 of the amended injunction is also an appropriate remedy. 

Subject to certain exceptions, Section 8 requires the prompt release on 

unsecured personal bond of misdemeanor arrestees who “have not appeared at 

a hearing and individual assessment within 48 hours of arrest.” Thus, Section 

8 requires release only when county officials fail to comply with their duty 

under the Fourteenth Amendment to provide misdemeanor arrestees with a 

bail hearing within 48 hours of arrest. See ODonnell I, 892 F.3d at 160 (“We 

conclude that the federal due process right entitles detainees to a hearing 

within 48 hours.”). Even then, the county retains the authority to impose 

secured money bail at a later hearing. Section 8 is therefore narrowly tailored 

to ensuring that misdemeanor arrestees are not detained without an 

individualized hearing for longer than the Due Process Clause permits. 

The judges contend that Section 8 is overbroad because “the Fourteenth 

Amendment does not require the automatic release of arrestees who are 

detained more than 48 hours before they are afforded an individualized 

hearing regardless of the justification for the delay.” They cite the Supreme 

Court’s opinion in County of Riverside v. McLaughlin, 500 U.S. 44 (1991), but 

McLaughlin says nothing about whether an order of release would be an 

appropriate remedy for an unduly delayed probable cause determination (the 

proceeding at issue in McLaughlin) or any other type of pretrial hearing.

The majority relies heavily on the following provision in ODonnell I’s 

model injunction:

To enforce the 48-hour timeline, the County must make a 

weekly report to the district court of misdemeanor defendants 

 

F.2d 1056 (5th Cir. 1985). Because it predated Bearden, Doyle’s basis for applying McGinnis 

instead of Williams rested on a faulty distinction. Doyle, 658 F.2d at 518 (finding Williams

inapplicable because the prisoner “will not spend more time incarcerated than the maximum 

period set by statute for the offenses of which he was found guilty”). Consequently, Smith, 

which adopted Doyle’s reasoning and did not even mention Bearden, has little persuasive 

value.

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identified above for whom a timely individual assessment has not 

been held. The County must also notify the defendant's counsel 

and/or next of kin of the delay. A pattern of delays might warrant 

further relief from the district court. Because the court recognizes 

that the County might need additional time to comply with this 

requirement, the County may propose a reasonable timeline for 

doing so.

ODonnell I, 892 F.3d at 166. The district court, however, was not required to 

confine its remedy to this or any other portion of the model injunction. See id.

at 164. Moreover, nothing in the ODonnell I opinion indicates that this court 

considered the possibility of a limited release remedy like Section 8, which 

accommodates the constitutional rights of arrestees and the interest of county 

officials in being able to impose secured bail after a hearing and individualized 

assessment.

The judges recycle various arguments based on Younger v. Harris, 401 

U.S. 37 (1971), Preiser v. Rodriguez, 411 U.S. 475 (1973), and the Eighth 

Amendment. This court, having previously rejected those arguments, 

ODonnell I, 892 F.3d at 156–57 & n.3, is unlikely to find them persuasive in 

their repackaged forms. 

2. The judges have not shown that they will suffer irreparably injury 

without a stay.

Citing questionable bond-forfeiture statistics, the judges assert that the 

amended injunction will undermine the county’s criminal justice system and 

endanger public safety. Assuming that the judges could overcome the myriad 

deficiencies in that data identified by the district court and the plaintiffs, their 

statistics show, at most, “some ‘possibility of irreparable injury’” and therefore 

fall short of satisfying the second stay factor. Nken, 556 U.S. at 434–35 (quoting 

Abbassi v. INS, 143 F.3d 513, 514 (9th Cir. 1998)); see also Winter v. Nat. Res. 

Def. Council, Inc., 555 U.S. 7, 22 (2008). The judges also claim that they will 

suffer irreparable harm because the amended injunction enjoins them from 

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enforcing state law, but nothing in Texas law requires the unconstitutional 

practices that the amended injunction seeks to remedy.

3. A stay will cause the plaintiff class to suffer substantial injury.

The district court found that “[p]retrial detention of misdemeanor 

defendants, for even a few days, increases the chance of conviction and of 

nonappearance or new criminal activity during release,” and that 

“[c]umulative disadvantages mount for already impoverished misdemeanor 

defendants who cannot show up to work, maintain their housing 

arrangements, or help their families because they are detained.” ODonnell v. 

Harris Cty., 251 F. Supp. 3d 1052, 1158 (S.D. Tex. 2017); see also id. at 1121 

(noting that “[r]ecent studies of bail systems in the United States have 

concluded that even brief pretrial detention because of inability to pay a 

financial condition of release increases the likelihood that misdemeanor 

defendants will commit future crimes or fail to appear at future court 

hearings,” and that one study “found that for misdemeanor defendants, even 

two to three days of pretrial detention correlated at statistically significant 

levels with recidivism”). Without full and immediate implementation of the 

amended preliminary injunction, members of the plaintiff class will continue 

to suffer substantial harm as a result of Harris County’s unconstitutional bail 

practices.

4. The public interest favors denying the motion for stay.

“[I]t is always in the public interest to prevent the violation of a party’s 

constitutional rights.” Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 

458 n.9 (5th Cir. 2014) (quoting Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 

2012)); see also Williams, 399 U.S. at 245 (“[T]he constitutional imperatives of 

the Equal Protection Clause must have priority over the comfortable 

convenience of the status quo.”). If a stay is granted, the “tens of thousands of 

constitutional violations” already found by the district court, 251 F. Supp. 3d 

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at 1150 n.99, will only increase in number. The public interest strongly favors 

denying the motion for stay.

* * *

I would deny the judges’ motion for stay pending appeal. Because the 

majority decides otherwise, I respectfully dissent.

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