Key Points

  • The Fifth Circuit affirmed dismissal of a First Amendment challenge to a Harris County order restricting access to misdemeanor bail-bond information.
  • The court held the order is a restriction on access to government information, not a prohibition on speech.
  • The panel also rejected an ultra vires claim, finding the presiding judge had authority under Texas law.
  • The court did not reach arguments about judicial or qualified immunity.

The Court of Appeals for the Fifth Circuit on April 22, 2026, affirmed the dismissal of a lawsuit challenging a Harris County administrative order that restricts public access to the contents of misdemeanor bail-bond orders. The suit, brought by Scott Martin, owner of a direct-mail marketing company that collects criminal defendants' contact information for private attorneys, alleged the order violated the First Amendment among other claims. The district court dismissed for failure to state a claim, and the Fifth Circuit agreed.

Martin's business relied on publicly available bond orders to obtain defendants' addresses and phone numbers. After the order took effect in June 2023, Martin estimated his business lost about $1,500 per week. He sued Harris County District Clerk Marilyn Burgess and the presiding judges who issued and maintained the order, Genesis Draper and Shannon Baldwin, in their official and individual capacities.

On appeal, Martin argued the order was a prior restraint on commercial speech. The Fifth Circuit rejected that argument, finding the order does not regulate speech but instead controls access to government-held information. 'United Reporting dooms Martin's First Amendment claim,' Judge Edith Brown Clement wrote for the panel, referencing Los Angeles Police Department v. United Reporting Publishing Corp., 528 U.S. 32 (1999). The panel explained that the Supreme Court in that case held that a similar restriction on arrestees' address information did not implicate the First Amendment because it was 'a governmental denial of access to information in its possession.'

'Here, the administrative order does not restrict speech—it restricts access to government information,' the panel said.

The court also rejected Martin's argument that the order was ultra vires, or beyond the presiding judge's authority. The panel noted that the order expressly invoked Texas Government Code section 75.403, which grants the presiding judge authority over pretrial release services and other court-related ministerial services in misdemeanor cases. Because Martin failed to show the judge acted without any legal authority, the ultra vires claim failed.

Having concluded that Martin alleged no actionable claim, the court declined to address whether the defendants were entitled to immunity. The case is Martin v. Burgess, No. 24-20495 (5th Cir. Apr. 22, 2026).