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Click here for the full text of this decision FACTS:Bail bondsmen Carl Pruett and Scott Martin filed suit under 42 U.S.C. �1983 against Harris County and the Harris County Bail Bond Board, challenging on various federal and state constitutional grounds, including the First Amendment, Texas Occupations Code �1704.109, a Texas statute governing solicitation of bail bond customers. Section 1704.109 provides that “a board by rule may regulate solicitations or advertisements by or on behalf of bail bond sureties” to protect the public from: harassment; fraud; misrepresentation; threats to public safety; or the safety of law enforcement officers. Moreover, �1704.109 states that a bail bond surety or its agents may not solicit bonding business in person or by telephone between the hours of 9 p.m. and 9 a.m or within 24 hours after the execution of an arrest warrant on an individual or an arrest without a warrant on an individual. Section 1704.109, however, does not apply to a solicitation or unsolicited contact related to a Class C misdemeanor. The plaintiffs challenged subsections (b)(1), which prohibits any solicitation regarding an outstanding warrant except for previous customers, and (b)(2), which prohibits solicitation in person or by phone from 9 p.m. to 9 a.m., or within 24 hours after a person has been arrested, either with or without a warrant. 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 County appealed the judgment, including the award of fees, and plaintiffs cross-appealed the award of fees, asking for more. HOLDING:Affirmed in part, reversed and remanded in part. Restrictions on commercial speech, the court stated, must be analyzed under the framework of the 1980 U.S. Supreme Court case Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. The government, the court stated, may ban misleading commercial speech and commercial speech related to illegal activity. If the communication is neither misleading nor related to unlawful activity, however, the government’s power is more circumscribed. First, the state must assert a substantial interest to be achieved by restrictions on commercial speech. Second, the restriction must directly advance the state interest involved. Third, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions fall. Harris County submitted several substantial interests to buttress subsection (b)(1), including: 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. The court agreed with the district court that the interests put forth by the county were substantial, except in the case of nonserious offenders. The court, however, found no evidence that the law directly advanced the state interests involved. Even assuming that the county would be able to meet the second prong of Central Hudson, the court found that the county could protect its interests with more limited restrictions on free speech. Harris County, the court stated, could: 1. increase the number of officers executing warrants, thereby arresting risky offenders before the 48-hour JIMS window expires; 2. extend the 48-hour window; and 3. screen targets for those who could be notified. As for (b)(2), Harris County asserted the prevention of harassing solicitation, or privacy, as its substantial interest. But the court found that the restriction banning solicitation within 24 hours of a person’s arrest failed to directly advance the state’s interest. Harris County, the court stated, “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 [an alleged] reduction in citizen complaints to the 24-hour rule, as opposed to the other aspects of the amended local rules, or answer the common-sense argument that most families would like to know when their members are in jail.” All that remains following the bail bondsmen’s First Amendment challenge, the court stated, is the 9 p.m. to 9 a.m. prohibition on solicitations. Prohibiting in-person and telephone solicitation at late hours, the court stated, directly and substantially furthers privacy and the prevention of harassing solicitation, and is narrowly tailored to furthering that goal. Finally, the court remanded the matter to the district court for determination of attorneys’ fees “appropriate to plaintiffs’ now partial success.” OPINION:Higginbotham, J.; Higginbotham, Wiener and Clement, JJ.

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