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. 

United States Court of Appeals

Fifth Circuit

FILED

June 7, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20714

CARL R. PRUETT; SCOTT MARTIN,

Plaintiffs-Appellees-Cross-Appellants,

versus

HARRIS COUNTY BAIL BOND BOARD; HARRIS COUNTY,

Defendants-Appellants-Cross-Appellees.

--------------------

Appeals from the United States District Court

for the Southern District of Texas

--------------------

Before HIGGINBOTHAM, WIENER, and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Two bail bondsmen challenged a Texas statute restricting

solicitation of potential customers as a denial of their First

Amendment rights. The district court agreed. Concluding that all

but one of the restrictions violates the bondsmen’s right to

commercial speech, we affirm, reverse, and remand, all in part.

I

Bail bondsmen Carl Pruett and Scott Martin filed this § 1983

action against Harris County and the Harris County Bail Bond

Board,1 challenging on various federal and state constitutional
2

grounds, including the First Amendment, a Texas statute governing

solicitation of customers, TEX. OCC. CODE § 1704.109 (2003). That

statute provides:

(a) A board by rule may regulate solicitations or

advertisements by or on behalf of bail bond sureties to

protect:

(1) the public from:

(A) harassment;

(B) fraud;

(C) misrepresentation; or

(D) threats to public safety; or

(2) the safety of law enforcement officers.

(b) A bail bond surety, an agent of a corporate surety or

an employee of the surety or agent may not make, cause to

be made, or benefit from unsolicited contact:

(1) through any means, including in person, by

telephone, by electronic methods, or in writing, to

solicit bonding business related to an individual

with an outstanding arrest warrant that has not

been executed, unless the bail bond surety or agent

for a corporate surety has an existing bail bond on

the individual; or

(2) in person or by telephone to solicit bonding

business:

(A) that occurs between the hours of 9 p.m.

and 9 a.m.; or

(B) within 24 hours after:

(i) the execution of an arrest warrant on

the individual; or

(ii) an arrest without a warrant on the

individual.

(c) This section does not apply to a solicitation or

unsolicited contact related to a Class C misdemeanor.

The plaintiffs challenge subsection (b), which contains two

prohibitions. Subsection (b)(1) prohibits any solicitation
3

regarding an outstanding warrant, unless the subject of the warrant

is a previous customer. Subsection (b)(2) restricts the time of

solicitation after arrest, prohibiting solicitation in person or by

phone from 9:00 p.m. to 9:00 a.m., or within 24 hours after a

person has been arrested, either with or without a warrant. The

statute does not prevent attorneys, law enforcement officials, or

anyone else from alerting someone that he’s the subject of an open

warrant. Law enforcement officials frequently send letters to

petty defendants giving notice of open warrants against them,

hoping they’ll turn themselves in. Most serious offenders do not

get bail in Texas, hence most bondsmen don’t target them.

Bondsmen use several methods to solicit business. One

particularly useful tool is the Harris County Justice Information

Management System (JIMS), a computer system accessible to the

public through terminals and the Internet which provides, inter

alia, names and addresses of persons arrested and subjects of

arrest warrants. Given the public’s ease of access to JIMS, Harris

County waits 48 hours after an arrest warrant is issued to post the

information about the warrant on JIMS, allowing law enforcement

officers to execute the warrant first. 

The district court granted the bondsmen’s motion for summary

judgment, holding the statute unconstitutional and enjoining its

enforcement. It granted in part the plaintiffs’ motion for fees,

awarding them $50,000 plus $25,000 in the event of appeal. Harris
2 In early 2001, Harris County adopted by local rule solicitation

restrictions similar to those of current § 109(b). Later that year, the Texas

legislature enacted the original version of § 109, which allowed local boards

to regulate solicitation. In 2002, plaintiff Pruett challenged the local

rules in state court. The trial court held the rules unconstitutional, see

Harris County Bail Bond Board v. Pruett, No. 01-02-01043-CV, 2004 WL 2307362

(Tex. App. -Houston [1 Dist.] October 14, 2004, no pet. h.), the appellate

court partially reversed, 177 S.W. 3d 260 (Tex. App. 2005), and the case is

pending before the Supreme Court of Texas. The present case involves current

§ 109(b), which was enacted in 2003 but concerns issues similar to those in

the state court case. However, the present case involves a central issue of

federal constitutional law, and although we abstain from ruling on issues of

Texas constitutional law, see Railroad Commission v. Pullman Co., 312 U.S. 496

(1941), we rarely abstain from ruling on federal constitutional law, see

Pennzoil v. Texaco, Inc., 481 U.S. 1 (1987); Colorado River Water Conservation

District v. United States, 424 U.S. 800 (1976), and do not do so here.

3 421 U.S. 809 (1975).

4

County appeals the judgment, including the award of fees, and

plaintiffs cross-appeal the award of fees, asking for more.2

II

The metaphor of political speech finding its place in the

marketplace of ideas proved to be a powerful if inexact force,

drawing speech in its myriad presentations under the umbrella of

First Amendment protection —— the force of the metaphor itself a

validating testament to the power of an idea so strong as to invite

confusion of metaphorical imagery with defining principle. And in

1975, with the Supreme Court’s decision in Bigelow v. Virginia,

3

speech in the marketplace of actual goods itself gained protection,

albeit as “less valuable speech,” termed “commercial speech.” It

signifies that commercial speech did not displace otherwise

protected speech in gaining First Amendment protection. That a

book or article is sold or a column is written for compensation
4 See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,

425 U.S. 748, 761-62 (1976).

5 See Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commission of New

York, 447 U.S. 557, 563-64 (1980). The parties quarrel about what level of

scrutiny Central Hudson mandates. Citing 44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996), the plaintiffs urge something “akin to strict scrutiny.” 

44 Liquormart, however, was a plurality opinion involving “a blanket

prohibition against truthful, nonmisleading speech about a lawful product,”

id. at 504, and there’s no blanket prohibition here. In any event, the

Supreme Court has called Central Hudson a form of “intermediate” scrutiny. 

See Edenfield v. Fane, 507 U.S. 761, 767 (1993); see also Florida Bar v. Went

for It, Inc., 515 U.S. 618, 623 (1995); cf. Thompson v. Western States Medical

Center, 535 U.S. 357, 374 (2002) (describing the test as “significantly

stricter” than rational basis). The precise label for the level of scrutiny

embodied in Central Hudson is irrelevant, however - we just apply the test. 

Likewise, the plaintiffs’ assertion that the Central Hudson test isn’t the

same as the time, place, and manner test, while true, see Speaks v. Kruse, 445

F.3d 396, 400 n.10 (2006), is axiomatic.

The plaintiffs also suggest that strict scrutiny should apply because

the restrictions here are content-based. This argument has no merit - §

1704.109 is a classic restriction on a category of commercial speech, a

restriction that involves methods, times, and subjects of solicitation and

does not have as a goal the suppression of speech. See, e.g., Speaks, 445

F.3d at 400 (examining similar restriction on chiropractor solicitation as a

restriction on commercial speech).

5

does not eliminate its protection.4 In sum, commercial speech,

with its lesser protection, is at bottom advertising. As the

parties and the court below recognized, § 1704.109 is a restriction

on commercial speech.

Restrictions on commercial speech are analyzed under the

framework of Central Hudson.

5 The government may ban misleading

commercial speech and commercial speech related to illegal

activity. “If the communication is neither misleading nor related

to unlawful activity, the government’s power is more

circumscribed.” First, “[t]he State must assert a substantial

interest to be achieved by restrictions on commercial speech.”

Second, “the restriction must directly advance the state interest
6 Central Hudson, 447 U.S. at 564. Despite the language of the third

prong, the Supreme Court and, thus, this court do not require that the state

use the least-restrictive means. See, e.g., Speaks, 445 F.3d at 401 n.14.

7 See Speaks, 445 F.3d at 399.

6

involved.” Third, “if the governmental interest could be served as

well by a more limited restriction on commercial speech, the

excessive restrictions cannot survive.”6 We review the lower

court’s application of this test de novo.

7

Before we apply Central Hudson to the two restrictions at

issue, we address a fundamental dispute coloring much of the

parties’ arguments and the lower court’s ruling. The plaintiffs

argue that only evidence created before enactment of § 1704.109 and

relied upon or cited by the legislature in passing it can be

considered under Central Hudson. Consequently, they argue, because

the legislative record behind § 1704.109 is bare, it cannot survive

scrutiny. Harris County disagrees, offering testimony and

affidavits introduced in the court below. The district court

agreed with the plaintiffs, although it held that § 1704.109 failed

scrutiny even considering Harris County’s additional evidence.

Central Hudson does not require that evidence used to satisfy

its strictures exist pre-enactment. Plaintiffs rely heavily on the

statements in Edenfield v. Fane that a statute cannot be justified

“by mere speculation or conjecture” and that “[t]he Central Hudson

standard does not permit us to supplant the precise interests put
8 507 U.S. 761, 768, 770 (1993); see also Went for It, 515 U.S. at 624

(quoting Edenfield). The plaintiffs cite to other cases, like U.S. West, Inc.

v. F.C.C., 182 F.3d 1224 (10th Cir. 1999), which simply restate this rule.

9 See supra note 4.

10 63 F.3d 358, 362-63 (5th Cir. 1995) (stating “[b]efore us is

extensive evidence” and, twice, “[t]hey testified”). In their brief,

plaintiffs suggest that this “evidence” and “testimony” was actually preenactment “evidence” and “testimony,” presumably created in connection with

the legislation itself. The district court’s ruling, however, makes clear

that the evidence was developed at trial. See Moore v. Morales, 843 F. Supp.

1124 (S.D. Tex. 1994).

7

forward by the State with other suppositions.”8 Those statements,

however, only distinguish between rational basis review, under

which a court can, and should if necessary, confect its own reasons

to justify a statute, and Central Hudson review, under which a

court can consider only the reasons proffered by the state. While

with commercial speech the state need not demonstrate that its

regulatory means were the least intrusive on protected speech,9 it

must at least articulate regulatory objectives to be served. But

that doesn’t mean the state can proffer only reasons locatable in

the legislative record. Indeed, in our most relevant case, Moore

v. Morales, the court’s language shows that it considered postenactment evidence in analyzing a Central Hudson claim.10 Even with

a First Amendment doctrine calling for “intermediate scrutiny,”

where the argument has some logical purchase, that of sexuallyoriented businesses, we have specifically rejected the plaintiffs’

contention that evidence of purpose must be drawn only from a

contemporaneously generated legislative record. And there the

threshold question is whether the legislative body is regulating
11 See Illusions-Dallas Private Club, Inc. v. Steen, 482 F.3d 299 (5th

Cir. 1997) (rejecting argument that legislative record or statutory preamble

was necessary to discern a content-neutral purpose for statute); J&B Entm’t,

Inc. v. City of Jackson, 152 F.3d 362, 371 (5th Cir. 1998) (allowing use of

evidence of secondary effects developed pre-enactment or adduced at trial). 

Plaintiffs cite other cases that seem to disagree, see Peek-a-Boo Lounge of

Bradentown, Inc. v. Manatee City, 337 F.3d 1251, 1265-67 (11th Cir. 2003);

Hickerson v. City of New York, 146 F.3d 99, 105 (2d Cir. 1998); 11126

Baltimore Blvd. v. Prince George’s County, 886 F.2d 1415, 1423 (4th Cir.

1989), judgment vacated by 496 U.S. 901 (1990); SOB, Inc. v. County of Benton,

317 F.3d 856, 862 (8th Cir. 2003); D.H.L. Associates v. O’Gorman, 199 F.3d 50,

57-58 (1st Cir. 1999), but those cases aren’t controlling, of course. 

12 The plaintiffs argue that the legislature’s purpose in enacting § 109

was to hinder competition between large, affiliated bondsmen and independent

bondsmen, but it offers no real evidence for this claim. In any event, even

if the impulses behind § 109 were anti-competitive, § 109 could still be

supported by other, legitimate interests.

8

protected activity or its effects.11 We consider the testimony and

affidavits introduced by Harris County in the court below, as the

district court did in the alternative.

A

We turn first to subsection (b)(1), which prevents

solicitation regarding outstanding warrants unless the bondsman has

a prior relationship with the party. Harris County concedes that

the solicitations at issue are neither deceptive nor relate to

illegal activity. Next, under the first prong of Central Hudson,

Harris County asserts as substantial interests the diminishment of:

1) the flight risk for felony offenders and high-level misdemeanor

offenders; 2) the risk of harm to officers, defendants, and

bystanders when such defendants are arrested; 3) the risk of harm

to victims, family members, or witnesses from retribution; and 4)

the potential for destruction of evidence, interests alluded to in

the statute itself.12 The district courts found that these
13 Section 109(c) excludes solicitation related to Class C misdemeanors,

providing some leeway for bondsmen to call petty defendants, but we have no

evidence or argument about what portion of bond-eligible defendants are Class

C misdemeanor defendants or the relative dangerousness of such defendants to

other categories of defendants.

9

interests were substantial. We agree, although to the extent that

Harris County itself notifies non-serious offenders of open

warrants against them - and the evidence shows that Harris County

does this quite a bit - the interests are not substantial at all.

Deferring that concern to the third prong, where it more easily

fits, and assuming the interests are substantial in the abstract,

we turn to the second prong.

Under the second prong, Harris County must show that (b)(1)

directly advances these interests. It has failed to do so. Harris

County’s experts testified that executing arrest warrants is

dangerous and that maintaining the “element of surprise” is

important in decreasing the target’s ability to flee, resist, harm

people, or destroy evidence. Although we consider this testimony,

it is not enough in the absence of any sort of data or even

anecdotal evidence showing that bond-eligible targets, thus

excluding hard-core criminals,13 who aren’t caught during the 48-

hour JIMS delay, are tipped off by bondsmen and then choose to run,

resist, or destroy evidence. Harris County urges that requiring

such evidence would preclude the prevention of tragedies through

prophylactic laws, but there must be some evidence that (b)(1)

responds to an actual problem before we can conclude that it
14 Apparently sensing its problems with lack of evidence, Harris County

argues that “common sense” alone supports it here, citing Went For It, 515

U.S. at 628. Went for It, however, noted that common sense together with

history and consensus can justify a speech restriction. 

15 See 44 Liquormart, 517 U.S. at 505-06.

16 See supra note 4.

17 See Speaks, 445 F.3d at 400.

18 In 2002, a Sheriff’s Department Sergeant testified that five nightclerks in the Warrants Division send “more than 20" and perhaps as many as 100

of those letters every night, yielding 7,300 to 36,500 a year.

10

advances any interests.14 And even if Harris County has shown that

the statute advances the interest in some minor way, such a

“remote” or “marginal” advancing of the state’s interest is

insufficient.15

Even assuming that (b)(1) advances the stated interests,

(b)(1) fails prong three of Central Hudson. While that prong does

not require that the state employ the least-restrictive means to

accomplish it goals,16 it does require a good fit between the means

and the goals. Consequently, in determining whether “the means are

in proportion to the interests they purport to serve,”17 it is

relevant that other, less-restrictive and more-tailored means

exist. As the district court found, Harris County could advance

its interests by: 1) increasing the number of officers executing

warrants, thereby arresting risky offenders before the 48-hour JIMS

window expires; 2) extending the 48-hour window; and 3) screening

targets for those who could be notified. As we have observed, it

is telling that Harris County itself notifies thousands of people

every year of open warrants against them18 - Harris County cannot
19 In analyzing the second prong on Central Hudson, the district court

concluded that § 37.02(a)(2) covers only solicitations of a “consumer good or

service,” and that bail bonding isn’t such a good or service. Although we

don’t pass on the question, we note that § 37.02(a)(2) seems to cover bail

bonding, as the Texas Court of Appeals held in Pruett’s related case, see

Harris County Bail Bond Board v. Pruett, 177 S.W. 3d 260, 275-76 (Tex. App.

2005).

11

give such notice itself and then claim that restricting notice by

others is necessary to the safety of its officers and the public

and the prevention of flight. While the first two alternatives may

be impractical and the second outside the legislature’s control, at

least we will accept for now that these two do not leave an

untailored fit of ends and means. The third, however, is fatal.

We do not hold that Harris County cannot serve its objectives by

more narrowly drawn means. Rather, we hold that Harris County has

not yet engaged in the narrow tailoring demanded by the First

Amendment.

B

We turn next to subsection (b)(2), which prevents solicitation

in-person or by phone between 9:00 p.m. and 9:00 a.m. and within 24

hours after arrest. Harris County contends first that (b)(2)(A)

regulates conduct that was already unlawful under the general

statute prohibiting solicitation between 9:00 p.m. and 9:00 a.m.

and before noon on Sundays, TEX. BUS. & COM. CODE § 37.02(a)(2), hence

under the threshold inquiry of Central Hudson, (b)(2)(B) survives

as a ban on speech relating to illegal activity.19 This

bootstrapping argument fails. The threshold inquiry asks whether

the speech is misleading or the product or service spoken about is
20 See Speaks, 445 F.3d at 400 n.13.

21 See, e.g., id.

12

illegal, and here the speech isn’t misleading and the product or

service itself - bail bonding - isn’t illegal. That § 37.02(a)(2)

itself bans speech doesn’t save (b)(2)(B). And so we turn to the

Central Hudson prongs.

Harris County asserts as its substantial interest for (b)(2)

the prevention of harassing solicitation, essentially what we have

elsewhere called the interest of “privacy,” a sufficient interest.20

But Harris County’s argument finds difficulty when its interest is

stated more narrowly as the prevention of harassment through bail

solicitation and the promotion of privacy of families of persons

targeted for arrest. It now differs from solicitation held to be

a valid target of legislation.21 We defer this concern to the next

prong, again assuming the interests are substantial in the

abstract.

We conclude that the 24-hour window of (b)(2)(B) does not

directly advance the state’s interest. Harris County offers an

affidavit from an employee of the Harris County District Attorney’s

Office stating that the 24-hour period after arrest is the time

during which harassing bond solicitations are the worst and that

citizen complaints “declined drastically” after Harris County

changed its local rules, before the enactment of § 109, to contain

essentially what is now § 109. Again, however, the state fails to
22 Harris County also provides no evidence about the nature of the

complaints pre- and post-rule change, preventing any useful conclusion from

the reduction in complaints.

23 See supra note 19.

13

carry its burden with a single affidavit, bereft of data or even

anecdotes, that the 24-hour rule advances the state’s interest.

Moreover, Harris County fails to explain why, with the

implementation of a 24-hour rule, harassing solicitations won’t

simply begin on the 25th hour. Nor does the County connect the

reduction in citizen complaints to the 24-hour rule, as opposed to

the other aspects of the amended local rules,22 or answer the

common-sense argument that most families would like to know when

their members are in jail. This last point has further import

given the plaintiffs’ unchallenged assertion that call-blocking and

call-ID systems that block calls from jail, combined with delays in

booking and broken phones in jail, make it difficult for a person

in custody to request help from family and friends.

All that remains is the 9:00 p.m. to 9:00 a.m. restriction.

The district court struck that down with the rest of § 109(b), but

its rationale for doing so is unclear, although the court seemed to

rely partly on its conclusion that the general solicitation timing

statute, § 37.02(a)(2), didn’t apply to bail bonding. We don’t

decide that question,23 although we note that if § 37.02(a)(2)

covers bail bonding, then presumably we can’t strike down (b)(2)(A)

without striking down § 37.02(a)(2), at least “as applied” to bail

bonding. We don’t face that dilemma because we conclude that
24 See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 498 (1982).

14

(b)(2)(A) survives Central Hudson scrutiny. Prohibiting in-person

and telephone solicitation at late hours directly and substantially

furthers privacy and the prevention of harassing solicitation, and

is narrowly tailored to furthering that goal. A nighttime

prohibition is inevitably underinclusive because privacy may be

lost and harassing solicitation made during the day, but surely the

state’s interest is more powerful at night. Indeed, we’ve found no

successful challenges to general nighttime solicitation bans.

III

The plaintiffs also attacked § 109 below on vagueness, equal

protection, and Texas law grounds. The district court never

addressed these arguments after concluding that § 109 violated the

First Amendment. The plaintiffs raise the vagueness and equal

protection challenges again on appeal, saying nothing of Texas law.

Hence we must address the vagueness and equal protection arguments

as they pertain to (b)(2)(A), the subsection of § 109 most

resistant to those arguments. First, (b)(2)(A) is not

unconstitutionally vague; two specific types of solicitation of a

specific service are banned during a specific time.24 Second, the

plaintiffs’ equal protection argument relies entirely on the

distinction in (b)(1) between bondsmen with existing client

relationships and bondsmen without such relationship - a

distinction irrelevant to (b)(2)(A).
25 Browder v. Director, Dep’t of Correction, 434 U.S. 257, 264 (1978)

(holding that a timely notice of appeal is jurisdictional).

26 See Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) (explaining that,

under § 1988, a party cannot recover fees for legal services on unsuccessful

claims, although sometimes unsuccessful and successful claims can be so

related as to warrant fees for time spent on the combined claims).

15

Consequently, we affirm the district court’s grant of summary

judgment to plaintiffs, except for that part enjoining the

enforcement of (b)(2)(A), which we must reverse.

IV

Under 42 U.S.C. § 1988, the district court awarded the

plaintiffs $50,000 in fees and $25,000 more in the event of appeal.

In its August 18, 2005 notice of appeal, Harris County appealed

both the underlying merits and that award of fees. After later,

unsuccessful attempts to modify that award, the plaintiffs crossappealed the issue of fees, asking that we award more money or

remand with instructions to award more money. 

At the outset, the parties skirmish over whether the

plaintiffs’ cross-appeal was timely,25 a skirmish we need not

address because Harris County’s appeal, including an appeal of fees

awarded, was timely. We vacate and remand the award of fees given

Harris County’s partial, if limited, success, in defending the

nighttime restriction. We must vacate and remand the award of fees

to allow the district court to award fees appropriate to

plaintiffs’ now partial success in both the district court as well

as on appeal.26
16

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.