City of Beaumont v. Bouillion

BEAUMONT, Maurice CITY OF Haines,

Meyers, Albert

Ray Riley, Petitioners, BOUILLION, Rush, E. D. Cecil

Woodford Parsons, A. Perricone

John G. Charles Eugene Corder, Respondents. T.

No. D-4004. Texas. 4,May

Argued 1994.

Decided Feb.

Rehearing May Overruled Austin, Nich- Harrington, Lane

James C. ols, Sanders, Black, Dewey Joseph Robert A. Gonsoulin, Beaumont, petitioners. J. Kirk, Coleman, George preference. given Tom F. M. Ted L. dents shall be Albert Walker, Bartlett, Houston, Haines, Lee City Manager Thomas for during the Beaumont respondents. case, in the relevant times involved had authority appoint to and remove the

ENOCH, Justice. city departments. ap- heads of the Haines 1) presents This us case with two issues: pointed depart- to fill nonresidents several report appropriate What “to an constitutes a positions, including ment head Max Patter- authority” law enforcement sufficient to fall City Manager. son as Resource When the protection within the afforded the Texas position open of Police Chief came in late n Whistleblower Act, art. Tex.Rev.Civ.Stat. appointed Haines Patterson to act as 6252-16a, (Vernon 2) 1983)1, § 2 and Does the interim a search chief while was carried recognize implied private right Texas permanent out for a chief. Patterson carried arising damages action for under the free significant departmental out reforms while speech assembly and clauses of the Texas serving as interim chief. against governmental Constitution entities. appeals plaintiffs police The trial court the court of in both this case were offi- upheld jury plaintiffs for award below. Department cers Police Beaumont Because we hold that the 1987. The extent of the reforms instituted present conduct case falls outside the by Patterson led the officers conclude that Act, ambit of the 'Whistleblower and that appointment Patterson’s was more than implied there is no cause of action for dam- merely provisional. They believed that Pat- ages against governmental entities for viola- terson qualified was less to serve as chief speech assembly tions of the and free free than police some members of the Beaumont Constitution, clauses of the Texas we reverse temporary appointment force and that judgment of the court of give opportunity was made to Patterson render defendants.2 citizen, making become a local thus him eligible permanent appointment. Facts

I. January twenty-one police On Bouillion, Rush, Woodford D. Cecil E. press officers held a conference issued a Parsons, John G. A. Charles Perricone and press Eugene Corder, release. In their statement to the employees T. former of the press, Department, they Beaumont Police claim the officers asserted that there were discharged were constructively position several viable for the candidates jobs reporting official misconduct to an police chief from inside and outside the de- authority exercising and for their constitu- partment. They complained further about speech tional to free and free assem- running how Interim Chief Patterson was bly. department, challenged Patterson’s qualifications. They upon called also Haines City provides Charter of Beaumont help form a blue committee to qualifications applicants that when ribbon city employment equal, Beaumont resi- select the new chief. repealed by injunctive

1. This section Acts of was 73rd violation of section 554.002 includes relief, 46(1) Leg., 583, § damages, exemplary damages, R.S. ch. 1993 Tex.Gen.Laws actual (effective 19, 1993) September costs, fees, and re- attorneys reasonable reinstatement to codified in section of the Texas 554.002 Govern- position, compensation his or her former for lost Code, 1,§ ment 609-10. The new id section wages, fringe reinstatement benefits and changes effects no substantive Act. The seniority rights § lost. Id. 554.003. provides new that: section points 2. The raised of Beaumont additional government agency may A state local or concerning type of error evidence to be suspend employment terminate of or during challenge. considered See Bat a Batson against public employee discriminate who in Kentucky, son v. good reports faith a violation of law to an However, appropriate authority. because of the law enforcement TexGov’t Code resolution of the other issues we need not reach 554.002. relief available to employee suspended or terminated who is Batson issue. body may expressed governmental A state or local respond To the concerns release, employment press Haines a series or terminate the suspend scheduled meetings of, against, the members of executive otherwise discriminate operations day-to-day reports force discuss a violation of public employee who meeting such police department. One au- appropriate law enforcement law an February 1987. The was report scheduled thority employee is made in if the meeting at- arrived at that with an officers good faith. reporter the torney and a court to transcribe 6252-16a, § 2 art. Tex.Rev.Civ.Stat.Ann. meeting. the in- Haines refused to discuss 1983). (Vernon may public employee A sue department operation police of the ternal injunctive governmental body for relief the attorney present, of- with the officers’ but both, of damages, for a violation the and their fered to meet later with the officers § Id. To a violation of Act. 3. demonstrate attorney grievances. to their Two discuss must, Act, plaintiff the Whistleblower later, reprimands days issued Haines written things, plaintiff among prove that the other inviting attorney and officers for their the appropriate to an reported a violation of law meeting reporter court to the executive staff 2; authority. Id. see law enforcement agenda. not on the The discuss items Snell, Kirk & The Whistleblower Act: Texas reprimand “com- concluded such actions Change, A 26 Tex.Tech.L.Rev. Time for pletely judgment management and lack[ed] discussing ap (surveying cases 88-90 sense.” authority). Our propriate law enforcement In spring City the of the hired disposition the issue focuses whistleblower Schuldt, George a Beaumont resident and exclusively this of the Act. The on element Department the officer with Beaumont Police City the problems the officers and between release, signed press who perma- had the eventually resulted in two confrontational oc nent His in- Chief Police. administration press the currences that underlie suit: department-wide stituted reforms. These meeting subsequent the re conference and department, reforms affected the in- entire reprimands. sulting press the The confer cluding bringing the this suit. The officers protected the statute. ence is not a act under Major reorga- rank in the was eliminated Bexar, County Garay Eventually nization. all but Bouillion took (Tex.App. Antonio 766-67 — San packages department; retirement left the denied) (statute applicable to not nurse writ Department Bouillion left the after this suit reported alleged newspaper who violations to was filed. them). later The published columnist who City the officers sued the of Beau- appropriate not “law clearly media en mont and other individuals their official authority” forcement under the Whistleblow capacity discharge. for constructive The suit Act. er the claimed that because officers disclosed a confrontational act com The second City Charter, the City violation of retali- February plained byof was the by officers instituting depart- ated them meeting reorganization, reprimand the officers re mental which actions violated February reprimands Act both the Texas and their ceived on The Whistleblower rights any consequences stemming under Texas The Constitution. themselves officers, them, however, employ not returned a verdict are acts appeals affirmed. under the ment discrimination Whistleblower reprimands Act did stem because report appropri from the violation to

II. Act Texas Whistleblower agency. law enforcement At the Febru ate report ary meeting, the officers made The Texas Whistleblower Act ef any transcript pertinent provided fect all that: violation law.3 times violated, process rights being meeting in the 3. At the one officer read Haines following: right rights preserve we have our record, rights you deny legal if further our legal has advised us that our Our counsel violated, preservation the denial of our of the record of have been that more of meeting meeting appropriate authority. that the was law indicates one enforcement For Haines, reasons, these we reverse the several scheduled not the officers, respond the court of under the Whistleblower to the concerns the offi- Act. expressed press cers their conference. February meeting nothing had to do III. Constitutional Tort State allegation City the officers’ hiring practice,

violated its but instead con- Alternatively, recog- us the officers ask operation cerned internal Beau- private implied nize an of action for Department. reprimands mont Police damages for the violation constitu- anything were issued because of that was rights. The tional officers claimed that their reported, brought but the officers Texas Constitution were meeting. they Had “outsiders” re- violated and its officers because ported illegal city manager an act to the and they against exercising were retaliated was, they fact, proved had there in speech rights their free under Article sec- suspension, discharge or discrimination Texas 8 the Constitution and for report, caused their the Whistleblower exercising right their under Arti- assemble provided Act would have officers with an cle 27 of section the Texas Constitution.4 adequate remedy. Tex.Rev.Giv.Stat.Ann. They analog to find a ask us state 6252-16a, facts, § art. 3. Under these Bivens-type how- federal cause of action. Bivens ever, meeting City the officers’ with the Agents v. Six Named Unknown Federal Manager bring complaint Narcotics, does their with- Bureau 91 U.S. S.Ct. in (1971).5 the realm the Whistleblower Act. L.Ed.2d Bivens, In Supreme

The court concluded that the United States recognized implied private could have found that the officers Court an had cause of against reporting been against agent acting retaliated a viola- action a federal under First, disagree. authority tion of the law. We color who as a violates individual’s law, matter Whistleblower Act is not Fourth Amendment under United implicated merely by reports made to the States Constitution. 403 U.S. Second,

press. report remedy there was no S.Ct. at This 2001. has also been rights, you placed yourself government powers griev- have these and the for redress city legal jeopardy. purposes, in by petition, ances or other address response, Haines asked the officers what or remonstrance. being I, claimed officers were violated. § Const, Tex art. Rush stated that he "had understood that Mr. attorney] brought had [the Walker officers' we At the outset note that the United States day explaining [Haines] an item” before what Supreme recently that a Court announced Bivens rights they violating. claimed Haines was How- against cause of cannot action be maintained ever, any complaints the record is devoid of agencies. Meyer,-U.S.-, federal FDIC v. any being violation made to Haines. -, 996, 1005-06, 127 L.Ed.2d reprimand The stated that Haines scheduled officers' this case suit in more meetings consideration officers’ facts, closely parallels Meyer suit was reprimand concerns. heart of the is as fol- governmental entity brought against the and its bringing persons lows: action in "[the] uninvited capacities, officers and in their official meeting completely to the Executive Staff was against capaci the individuals in their individual lacking management and sense.” against ties. A in her official suit official capacity is a suit collectable from official's 4. Article 8 of the section Texas Constitution governmental entity, individually. not the official provides: Auth., Winograd See Clear Lake Water liberty speak, Every person shall be at write (Tex.App. [1st Dist.] opinions any publish subject, being his — Houston denied). Regardless, Meyer writ deci responsible privilege; for the abuse of that analysis; Meyer sion was the result of a Bivens passed curtailing no law ever be shall liber- against agencies concluded that suits federal ty speech press.... or of the I, Meyer I, could not be maintained under Bivens. pro- art. 8. Article section 27 Const, Tex. change purpose. does not our Our task is to vides: analysis context of right, peaceable consider the Bivens in the our have in a Citizens shall manner, together state constitution and in the context of claims assemble for their com- governmental apply against good; made entities. mon to those invested with imphed damages right can be equal pro of action the Fifth Amendment’s applied to Passman, We hold under the Texas Constitution. component, Davis tection action for 2264, 2278, impUed private right of 228, 248, there is no 60 L.Ed.2d S.Ct. arising speech pro damages free (1979), Eighth and the Amendment’s assembly of the Texas Constitu- punish free sections and unusual hibition cruel Green, 14, 24-25, ment, tion. Carlson 1468, 1474-75, argue jur that other InitiaUy, the officers The United Court recognized causes have isdictions generically to causes of has come to refer states faced action on Bivens. Several based damages for the violation of consti action for an im- us found issue before have Bivens-type rights as causes ac tutional reject have pUed while others cause of action Lucas, 367, 377, Bush v. tion. uniformity There is Uttle ed such an action. 2404, 2411, 76 L.Ed.2d jurisdictions addressed the other have how Davis, Carlson, Bivens, (referring jurisdictions foUowed issue. have Several seeking damages violation of other cases by the approach used United States Su “Bivens-type constitutional actions cases, preme Bivens line of Court Constitution.”). directly on the based presence or have on the based decisions Bivens-type Bush action held schemes. of alternative remedial absence statutory lie

would not where federal 2, See, Dick Dev. No. Inc. v. e.g., Fischer remedy provided a for the violation scheme (Alaska 1992) Admin., Dep’t P.2d 263 838 of particular right, in that of constitutional to (expressing reluctance extend Bivens case, right First Amendment to free constitutional violations realm state 390, speech. 2417. Id. 103 S.Ct. at except flagrant constitutional vio in cases implied against cause of action Bivens or no alternative remedies lations where Uttle complements statutory available); federal officers Law Gay are Students Ass’n against Co., 458, § 1983 lies cause action which 24 156 Tel. & Tel. Cal.3d Pacific (1979) government 14, state other non-federal offi (finding 595 P.2d 592 Cal.Rptr. § cials. 42 impUed U.S.C. 1983 deter appropriate cause of action provided by Bivens-type, remedies); Kelley rent Prop effect actions of other absence similarly § provided by Lebanon, 314, works erty Dev. v. Town 226 Conn. Carlson, 19-22, (1993) 446 (holding 100 S.Ct. at U.S. that because of 627 A.2d 909 1472-73; Wegmann, scheme, 436 Robertson v. statutory remedial court would not 1991, 584, 590-91, 1995, directly 56 L.Ed.2d imply arising a cause action provides constitution); Section 1983 one v. McKen state Schreiner any deprives Servs., who under the color of law Management state zie Tank Lines & Risk rights Inc., guaranteed by (Fla.Dist.Ct.App.1982), the United another 408 So.2d 711 (Fla.1983) (because shall be Hable in an ac approved, Constitution 432 So.2d 567 equity. analysis self-executing, at law Id.6 Our is Florida Constitution First, questions. statutory on two we must remedy focuses absent au can be afforded impUed is pri thorization); determine whether there Widgeon v. Eastern Shore (1984) damages against gov Ctr., vate of action for Hosp. 300 Md. 479 A.2d 921 of the Texas provides ernmental entities for violations law (holding that because common Second, remedies, we must decide impUed Constitution. cause of action may Program, look to the necessary); Phillips whether we Constitution v. Youth Dev. (1983) duty Inc., define element of for a Texas com Mass. 459 N.E.2d (holding mon law cause action. there are no other reme that when dies, imply appropriate for the courts it is

A. constitution); Rockhouse one under the state Property Owners Ass’n v. Town provision has no com Mountain Because Texas (1986) 593, 503 question Conway, § 127 N.H. A.2d parable the first must be imply cause of action when a determining private (refusing by answered whether allege 1983 violation. in this case did not U.S.C. The officers statutory exists); remedial scheme Corum v. violation of article of the state Declaration of Carolina, University North 330 N.C. Rights, may rights by he enforce those 413 S.E.2d (holding that in the absence common damages); law action for Anderson adequate of an remedy, state one whose con Revenue, Dep’t 313 Or. 828 P.2d 1001 stitutional are violated has a (1992) direct (noting taxpayer against claims constitution) claim the state under the State damages only state for based on state consti- — denied, -, t. cer tutional violations cognizable do not state 493,121 (1992); Provens v. relief). claims for County Retardation, Stark Bd. Mental As reasoning we consider the under (1992) (hold Ohio St.3d 594 N.E.2d 959 decisions, pinning recognize these we them ing statutory exist, that where pri remedies persuasive authority, recog but we also employees vate private do not have a cause nize by that we are not any controlled one of action for violation of state constitutional approach used other interpreting states rights). specific provisions of their constitutions. Be jurisdictions Other have based their deter Rights cause our Bill of myri is “based on a mination ground on the of sovereign immuni sources,”7 ad of ultimately interpret we must See, ty. e.g., Figueroa Hawaii, 61 Haw. particular our Texas Constitution. To inter (1979) (noting P.2d 1198 that Tort pret Constitution, give our we effect to its Liability Act does not make state liable plain language. Meyer, Dawkins v. money damages for violation of state consti (Tex.1992). presume We tution); Health, Dept, Smith v. Public language of the carefully Constitution was Mich. (holding N.W.2d 749 selected, interpret they we words as alleged where that state has violat generally Indep. understood. Leander Sch. constitution, ed govern conferred Dist. v. Cedar Park Supply Corp., Water immunity mental is not available (Tex.1972). Thus, S.W.2d 908 we turn our action, court declining but to infer a attention to our Constitution. sue damages the state for on the basis of a begin, As we we note that we have been constitution), violation of Michigan aff'd, presented authority, no and our research has 58, 2304, 109 S.Ct. 105 L.Ed.2d 45 authority, revealed no that would indicate (1989); City Bayou Roy Mound Collins of written, that at the time the Constitution was Co., (Miss.1984) Const. 457 So.2d 337 (holding provide it was implied private intended to that liability only state expressly accrues as right of damages action for for the violation by law); Rockhouse, authorized 503 A.2d rights. Ross, of constitutional See Jones v. (noting 1385 sovereign immunity scheme 415, (1943) 1022, 141 Tex. 1024 against cuts the creation of a state cause of (constitutional provisions must be construed action); Meece, Livingood v. 477 N.W.2d 183 light in of existing conditions at the time of (N.D.1991) (holding that sovereign state im adoption). Accordingly, we find no historical claims). munity bars state constitutional basis remedy sought. to create the Similarly, other courts have based their Additionally, the text of the Texas Bill of determination on either the text of the state Rights cuts implied private right relationship constitutions or the between damages sought action for the because it those constitutions and other bodies of state explicitly See, consequences announces the HFH, of un- e.g., Court, laws. Superior Ltd. v. guarantees constitutional laws. 508, found in 365, Cal.Rptr. 15 Cal.3d 125 542 P.2d Rights the Bill of excepted are (noting remedy that the for im general powers government; proper legislative has undoing acts is State wrong power no contrary ful act and to commit acts money damages), not cert.

denied, 904, guarantees 1495, Bill Rights. found Tex. Const, (1976); Widgeon, § art. 479 A.2d at 29. Section 29 has been (holding interpreted that where an individual any provision is de as follows: prived liberty property or in Bill Rights interests self-executing is to the extent Erikson, Origins Rights, the Texas Bill S.W.Hist.Q. 457, 466 rejected appeals The court of below anything that in violation of is void. done Watson, City’s Bagg on v. Univ. Texas Hemphill Tex. reliance guaranteed Branch, (Tex.App.— conflicts with When a law Medical S.W.2d n.r.e.), by declares that Article the Constitution writ d [14th Dist.] ref Houston Rights Bill such are void because the acts appeals the court of affirmed case which power. Id. framers is limit State for dam of a constitutional tort the dismissal articulated what of the Texas Constitution distin ages. appeals below court remedying they intended to be means stating Bagg turned on guished Bagg, that in- The framers a constitutional violation. immunity holding and not on a the issue of contrary to a constitutional tended that law there no state constitutional tort. 873 is provision is There is a difference be- void. However, the plaintiff at 440. S.W.2d voiding seeking damages tween a law pursued Bagg causes of action for violations remedy A for an act. law that is declared and state constitutional of both his federal legal Fry, no void has effect. See Cain rights. respect to his claims under the With (Tex.Civ.App. S.W.2d —Amarillo constitution, recog the Bagg court did state writ). no declaration is differ- Such although strong Texas has a bill of nize that compensation damages, seeking ent from pro “no ... rights, Texas statute or case money inju- or a loss compensation the kind of redress afforded vides citizen Thus, ry. equitable suits for remedies — by 42 1983 or Bivens U.S.C. pro- violation of constitutional ” is tort.’ There no ‘constitutional support hibited. Section does Therefore, Bagg, 726 n. 1. S.W.2d private right claim that a of action officers’ rejected, claims were because the state damages implied under the Texas Con- only immunity necessary discussion was stitution. dispose of federal causes of action. rely The officers on Article section 17 as persuaded The court of was also approved has ac- evidence Hospital Sys., Jones v. Memorial damages arising tions for Constitu- (Tex.App. [1st Dist.] — Houston before. Their reliance on section writ). Jones, ap no misplaced. provides per- Section peals held that Article section 8 taken, property damaged or son’s shall be provides independent Texas Constitution destroyed applied use public without However, legal a of action. basis for cause Const, compensation. adequate art. Tex. holding is not inconsistent with our Jones provision The that if converse is today to the extent Jones is understood as taken, property is is to owner entitled injunctive approving suits for relief. Jones is provides adequate payment. Section implying from Constitu not to be read compensation to in its textual entitlement damages action for for the tion cause of focus on lan- limited context. officers Houston, speech rights. guage v. 603 violation of free from Steele (Tex.1980), where stated: we satisfy to fail their burden to officers itself is the authorization “The Constitution any to textual basis for relate compensation prop- for for destruction of argument that the Constitution affords erty governmental immuni- and is waiver equitable than for a violation of more relief ty taking, damaging destruction of for the language provisions. of the its Our review However, public for use.” this lan- property us to the Constitution leads conclude interpreted beyond con- guage cannot be its is no from the text of the Consti- there basis immunity text. The text of section 17 waives given party is more than tution assume compensation only adequate one when seeks equitable Accordingly we hold protection. property for to the We are not lost State. implied right of private there no ac- inju- right damages persuaded that a for damages tion for under the Texas Constitu- implied ries can to constitutional interests be alleges violation individual explicit tion when an solely from a limited entitlement for assembly rights. property. speech compensation for the loss of B. recognize a common law cause of action damages rights. for to enforce constitutional Alternatively, we also ask whether we may look to the Constitution to define the Historically common law Texas has not duty element of for Texas common law provided damages action for cause of nega cause of action. answer this in the We rights. the violation of constitutional jurisdictions split tive as well. Other on only find Texas case we can that can be read whether a law cause of common action is damages allow award of for the viola- implied remedy the violation of constitu constitutionally protected rights tion of law, rights. tional At common the violation Campbell, Tex.Civ.App. Gold right protected by such as those (El writ). There, S.W. 463 Paso Fourth to the Amendment United States recognized appeals court of that a victim of trespass, giving Constitution was viewed as a imprisonment pursue false could a tort cause damages trespass. rise to an action However, action an officer. example, For the United States alleged cause of action in Gold was the tradi- Court in principle Bivens referred to the tional tort of imprison- common law false liberty consists in essence of of ment, not a tort for the violation of constitu- protection individuals to claim of the laws rights. tional did not Gold create a new injured, when 91 S.Ct. at action; rather, recognized cause of that an Madison, (quoting Marbury scope officer who acts outside the of his 137, 163, (1803)), Cranch L.Ed. and thus authority is to suit amenable under a tradi- held that remedy a cause of action existed to tional common law cause of action. We dis- a violation of the Fourth Amendment interpretation approve any of Gold that Yet, government. given federal even concludes it authorized a constitutional tort imperative Madison, Marbury cause of action. imply same Court refused to a cause of ac employee’s for the of an violation First IV. Conclusion Lucas, Amendment in Bush v. Because the actions the officers do not 367, 389, 2404, 2417, Act, fall under the Texas Whistleblower (1983). There, L.Ed.2d recog the Court independent because there is no cause of Congress nized that remedy had crafted a damages against governmental action for en- alleged, misconduct and deferred to Con tities for speech violations of the free gress to decide whether create a cause of assembly Constitution, clauses of Texas action, effect, Congressional pre action. judgment we reverse court of cluded finding remedy. of a common law plain- render that the nothing. tiffs take have turned the common law to trespass allow an action for when individual PHILLIPS, C.J., HIGHTOWER, analogous protected by to those HECHT, CORNYN,

Fourth Amendment United States GAMMAGE and OWEN, JJ., join. Widgeon, Constitution were See violated. Bivens). (following

479 A.2d at 927 North GONZALEZ, J., concurring filed a recognized Carolina that the common law can opinion. provide remedy the for violation of free speech, but judge also noted the trial SPECTOR, J., joins judgment only. in the appropriate remedy, must craft the and that Justice, GONZALEZ, concurring. remedy injunctive relief, may include such as reinstatement, Corum, backpay. join I opinion judgment. in the and Court’s Ohio, hand, reversing S.E.2d at 290-91. on the other As further reason the for did not of establish a common law cause of the court of under the Whistle- Act, speech action for the of free blower I hold that violation would there is no legislature plaintiffs reprimanded the evidence that were was viewed be the more the appropriate body provide reporting for those remedies. a violation law to an Provens, appropriate authority. at 962. Our State does law N.E.2d enforcement study Furthermore, preme Advisory Committee for although the holds that Court against changes private cause of action will there is no Since no recommendation. future, for constitutional viola- governmental entities I forthcoming in near will be assembly I would speech rights, tions of by raised the substantive issue address private right of action hold that there City in this case. damages against governmental either a City that the trial court com- contends entity arising an individual Tex- when it did con- mitted reversible error separately, as Constitution.1 I write howev- trial, which the first sider evidence from er, City's challenge. to address the Batson mistrial, whether in a to determine ended Kentucky, 476 Batson v. motivating factor in the exercise race was a challenges in plaintiffs given Although traditionally parties were “clearly Applying trial. erroneous” second ju- potential strikes remove record, I to this would standard review cause, necessity showing rors without the hold the trial court committed reversible radically progeny and its have Batson considering the from error in not evidence changed jurisprudence.2 example, our For trial.3 first longer is no difficult to demonstrate state action in order to maintain a Batson chal- Also,

lenge. examining the exercise I. FACTS peremptory challenges, we shifted have context, put Batson order to issue litigants focus to receive a underlying facts brief review the jurors fair trial to the to be free began case when the case is in order. This pro- from discrimination selection city manager appointed a man black Additionally, permit longer cess. we no at- police City’s police chief. new interim jurors torneys cog- prospective to strike city manager reorganized the chief and the (race, ethnicity gender) class nizable displeased police department, action that result, the basis of instinct or a hunch. As a object- white officers some officers. Several very there now little difference between reorganization, publicly claiming ed challenges peremptory challenges and really police the “interim” chief was struggle cause. Rather than continue to “permanent” City him as and that hired many years protracted litigation more program. part its affirmative action issue, we over this would be better served hiring Among complaints was that admitting practical purposes, per- that for all Thus, city requiring challenges violated a Beaumont ordinance emptory sug- I dead. hiring given be to citizens gest preference refer Rules 282 233 of that we Eventually, po- Texas Rules of senior Civil Procedure Su- Beaumont. several -,-, challenge. Meyer, ruling See -U.S. on a Batson In the FDIC v. trial court's 996, 1005-06, guidance, L.Ed.2d I follow the of such would absence (holding court, cause of that Bivens action cannot be our Tex standard articulated sister against agency); maintained a federal Tutt v. Appeals. Vargasv. as Court of Criminal State Abilene, (Tex.App 877 S.W.2d 1992); (Tex.Crim.App. . —East 838 S.W.2d 553-54 denied) (holding land private right writ that there is no State, (Tex.Crim.App.1990), DeBlanc v. 799 S.W.2d governmen action denied, t. cer Constitution). entity tal for violations of the Texas State, (1991); Whitseyv. 115 L.Ed.2d 1075 (Tex.Crim.App.1989) 721-22 Batson, Carlson, J.E.B., generally 2. See Elaine A. clearly (plurality opinion). Under erroneous Beyond: Quest The Paradoxical Reasoned standard, our the Batson evi role is review Process, Jury Peremptory Strikes in the Selection light the most to the trial dence in favorable (1994) (suggesting the elimi- 46 L.Rev. 947 Bavlor ruling, to the court’s determine whether peremptory expansion nation of strikes and the supported by Whitsey, ruling the Rich, was record. cause); challenges Perempto- for Alan B. proper only 796 S.W.2d at 721-22. Reversal is ry Jury Strikes in Texas Batson and After [sic], the we are left with a firm conviction that when Mary’s Edmondson L.J. 23 St. (discussing progeny (citing the its at 721 effect Batson and court erred. Id. Anderson trial challenges). 564, 573-74, peremptory on the exercise of City, 470 U.S. S.Ct. Bessemer 1504, 1511, (1985)). L.Ed.2d Supreme 3. There is no Texas Court case sets reviewing the for to standard examine retirement, plaintiffs early allegedly lice officers took exercised the second trial were City po- due to retaliation the for their regard com- made without to the race of the plaints; was jurors. jury another officer demoted. Some tential returned a verdict City these officers filed suit the ap- favorable to The court the officers. illegal discrimination retaliation peals jury under affirmed verdict the and held Act, seeking money the Whistleblower dam- there was no Batson violation.5 The court ages.4 The first trial resulted in a mistrial appeals concluded that the trial court must hung jury. During jury to a due selection have considered the evidence in the bill trial, plaintiffs for the first the used all seven rejected exceptions as cumulative. peremptory their strikes to remove black at 437. persons panel. jury from the II. HISTORICAL PERSPECTIVE trial, attorney In the the second for the Peremptory challenges officers used are a two strikes cause and mechanism five parties peremptory challenges permitted all which lawsuit are remove black to strike a persons prospective from the After the certain number of venire. selection jurors City jury panel showing jury, requested of the second from the without what hearing Peremptory challenges known cause. as a have Batson determine been part plaintiffs many “of law for peremptory whether the used the common centuries chal- system lenges part jury nearly to remove minorities our racial from the Batson, years.” 112,106 jury pool. hearing, City present- At this C.J., prima plaintiffs (Burger, dissenting). They may ed facie case that the early days jury have used traceable to the race as a basis the exercise of trial Alabama, Therefore, England. peremptory Swain v. their strikes. 212-13, 824, 831-32,

hearing plaintiffs focused on whether L.Ed.2d many years ago, Not could articulate race-neutral reasons for their too the United Supreme peremptory prima perempto- Court considered strikes to rebut the facie ry showing. challenges In ... important order to refute the “one the most officers’ rights.” explanations, (quoting race-neutral to show that Id. at S.Ct. at 835 States, Pointer explanations pretextual, were v. United and to estab- 410, 414, (1894)). pattern L.Ed. 208 This peremptory lish of race-conscious strikes, City jurisprudence was the our until asked the trial court status of peremptory consider the officers’ when Batson was decided. exercise during strikes trial. Specifically, the first juries Discrimination in the selection of City sought to demonstrate that the offi- judiciary had been a matter concern to the cers were unable to articulate race-neutral prior to Batson. In the United States panel striking reasons for black members in Court held the exclusion City’s first trial. rationale was that person jury service the basis of race the officers’ failure to offer race-neutral ex- violates the criminal defendant’s planations peremptory for the strikes in the Equal Protection Clause of the Four- trial would impermis- first be evidence Virgi- teenth Amendment. Strander v. West pattern in sible the second trial. nia, 303, 305, 25 L.Ed. 664 After the trial specifically court refused to consider The Court dealt trial, Swain, challenges evidence from the first filed a which the Court held of exceptions prosecutors bill explain which stated the names and do not have to panel race of the who members were struck. reasons for their exercise of challenges, away per- The trial court would found that strikes the as this take plaintiffs, One officer 5. 873 S.W.2d This case former Woodford came before Bouillion, Appeals ap- Beaumont recently guilty Court of twice. The first plead D. and was sen- peal exclusively concerned selection. failing report tenced federal court for unpublished opinion, the court of Scam, felony. Money Sentenced in Ex-Officer hearing ordered the court to hold a trial 8, 1995, Jan. at B2. Statesman, Austin American plaintiffs determine exercised whether strikes in a race-neutral manner. jury panel. Id. Once the defendant at the emptory nature the strike. 380 U.S. case, prosecutor prima makes a facie 222, at not- 837. The Swain Court S.Ct. by articulating must a race-neutral rebut ed, however, that exercise of the habitual challenging jurors, explanation for which discriminatory racially in a fashion strikes challenge need rise the level not constitution- violates the criminal defendant’s 97,106 The final at 1723. cause. Id. at S.Ct. 223-24, protection. equal al Id. at determination, step trial based is the court’s at 837-38. 5.Ct. evidence, as to whether on all of per- The next case to address the use proving litigant its has carried burden challenges emptory for racial reasons was 98, at 1723. Id. at 106 S.Ct. discrimination. Batson, prose- a which the Court held been to civil Batson has since extended racially-based peremptory strikes in cutor’s Co., suits in Edmonson v. Leesville Concrete a criminal case were unconstitutional. 476 2088, 614, 2077, 631, 111 S.Ct. U.S. Batson, 1719. In a 106 S.Ct. at ethnicity-based (1991), peremp L.Ed.2d Kentucky indicted in a black defendant was York, tory v. strikes Hernandez New charges burglary court on re- 352, 111 114 L.Ed.2d 395 dire, goods. During ceipt of stolen voir (1991), Georgia criminal defendants jurors judge trial excused some cause. McCollum, 42,-, 112 S.Ct. prosecutor peremp- The then used four of his gender- (1992), 120 L.Ed.2d 33 tory persons challenges remove all black v. Ala peremptory strikes in J.E.B. based panel. composed jury, from —T.B., U.S.-,-, bama ex rel. only persons, white convicted defen- 1419, 1430, 128 L.Ed.2d 89 claiming appealed, dant. The defendant Supreme Court has not ruled United States prosecutor’s peremptory exercise of striking panel a on whether member strikes violated the Amendment. The Sixth Batson, religion al of his or her violates expressly reliance on defendant disclaimed though Justice Thomas has stated that Equal Protection the Four- Clause of extended Bat- “J.E.B. would seem have teenth Amendment. Id. at 106 S.Ct. at analysis equal protection to all strikes son’s C.J., (Burger, dissenting). The Ken- Minnesota, religion.” based ... Davis v. on tucky Supreme Court affirmed convic- -U.S.-,-, 2120, 2121,128 114 S.Ct. tion, Supreme Court United States J., (Thomas, dissenting L.Ed.2d granted Choosing disregard certiorari. its certiorari).6 from The Texas denial against basing opinion own rules on Appeals recently ruled on this of Criminal majority grounds by party, raised a issue, however, and held that the Fourteenth Batson reversed remanded the per prohibits the Amendment exercise conviction Fourteenth Amendment panel emptory challenges based on a mem grounds. State, religious ber’s — affiliation. Casarez (Tex.Crim. S.W.2d-, 1994WL 695868 procedural The Batson Court set forth the App.1994). validity requirements challenging First, peremptory the defendant strikes. Burger predicted that Chief Justice prove prima prose- subject must facie case that the every result of Batson would be to strikes, action, objection requir- cutor’s which constitute state peremptory challenge to an racially striking party. Id. at 106 S.Ct. at ing explanation motivated. from satisfy Batson, requirement, 1722. To the defen- at 1739 106 S.Ct. C.J., part dissenting). (Burger, dant must show that he she He believed away prose- effectively cognizable group racial and that the this in turn would do challenges. re- group Id. Case law cutor members of this has struck strike, Davis, toiy reasoning prosecutor aggravated that Batson did extend rob bery to remove a juror’s religion. case used strike Id. at 772. strikes based on panel he venire from the because was noted, however, member ”[o]rdinarily also The court Davis, Witness. 504 N.W.2d Jehovah’s State religious juror’s inquiry on dire into ... voir denied,-U.S.-, (Minn.1993), rt. ce prejudi and beliefs irrelevant affiliation cial.” Id. upheld peremp- Court Minnesota 154 Italian-Americans,8 Americans,7 accuracy Burger’s

veals of Chief Justice five predictions; Asian-Americans.9 Batson has been future role of even applied cases in challenges which a white defendant quite seems to be uncertain. protests striking jurors. of white instance, Circuit, For the First defi- Forte, Virgin Government Islands v. cognizable group nition of a become so has (3d 59, Cir.1989); 64 v. 865 F.2d Roman any that expansive litigant almost can be a Abrams, 214, (2d Cir.1987), F.2d 822 227-28 cognizable equal group pro- member of denied, 1052, 1311, 489 cert. U.S. 109 S.Ct. purposes. tection The court has identified (1989). 103 L.Ed.2d 580 prov- elements three which claims must be above, eog- As discussed the definition cognizability: en in order to establish nizability potential has the to become so ex (1) group must be definable and limit- challenges pansive render factor, clearly some ed identifiable However, meaningless. present, the fed (2) attitudes, a common thread of ideas or cogniza courts do recognize eral circuit not experiences through group, must run groups age, based on occupation, ble asso See, Gross, e.g., ciation. United De States v. community there must exist a of inter- Cir.1992) (stat 1433, (9th 1438 n. 960 F.2d 8 among members, ests that such ing occupation-based peremptory that adequately group’s rep- interest cannot be challenge does not violate Batson if group resented from the excluded type of discrimination rise to does not process. selection violation); equal protection of an the level 30, (1st Sgro, States v. United 816 F.2d 33 Beyer, 857, Pemberthy 19 F.3d n. 870-71 Cir.1987), denied, 1063, cert. 484 108 U.S. (3d Cir.1994) (noting age-based 18 that 1021, (1988). S.Ct. 98 L.Ed.2d 986 Under strikes do rise to the level of a Batson criteria, cognizable group above could — denied, -, violation), cert. 115 U.S. political be established on the basis of affilia 439, (1994); 130 S.Ct. L.Ed.2d 350 United tion, preference, height, weight, sexual left- (8th Townsley, 1189, States v. 856 1190 F.2d right-handedness, and on on. It could Cir.1988) (holding that the white defendants’ argued drug pedo even be addicts with a black association defendant was philes cognizable are groups pur for Batson give standing join sufficient to them Thus, poses under this formulation. black cert. challenge), defendant’s Batson range possible great is so classifications dismissed, 1406, 944, 111 113 S.Ct. peremptory challenges may longer no be (1991). Most on strikes based feasible the federal in the courts First living neighborhood conditions or also Circuit. See, Burton, upheld. e.g., Hollingsworth v. (11th 109, Cir.1994) Although Texas courts not extended 112 (upholding have 30 F.3d beyond holdings, job ownership Batson strikes based home — denied, -, expanded stability), the federal circuit courts have cert. U.S. concept cognizable 944, group Batson to Na- S.Ct. 130 L.Ed.2d 888 No Childs, 1328, additionally (stating 7. See United States v. do not 5 F.3d that Italian surnames cert, - Cir.1993), denied, -, (9th prove ethnicity), cert. U.S. denied sub nom. DiNorscio 1385, States, (1994); 906, 3216, 128 L.Ed.2d 60 United States v. United 109 S.Ct. Moccasin, 226, (8th (1989); Sgro, 878 F.2d Cir. at 33 Iron 106 L.Ed.2d 816 F.2d 1989); Chalan, 1302, (holding prove United States v. 812 F.2d defendant did not (10th Cir.1987). cognizable group). are a Italian-Americans (2d Sneed, Biaggi, 8. See United States v. States v. 853 F.2d 9. See United 34 F.3d Cir.1988), denied, (10th Cir.1994) (ruling prosecutor's per cert. that a challenge emptory pro 103 L.Ed.2d 581 Contra United of a Chinese-American Bucci, (1st Cir.) spective juror States 839 F.2d did.not violate because the Batson (holding prosecutor explanation that the defendants failed to show that offered a race-neutral strike); cognizable group Thompson, were a United F.2d Italian-Americans States v. denied, (9th Cir.1987) (Sneed, J., purposes), dissenting) Batson cert. (1988); (expressing applies 102 L.Ed.2d United doubt that Batson (3d Cir.1988) Asian-Americans). Pasquale, 864 F.2d v. Di Burger quite that “it is prose noted a Chief Justice has addressed issue whether challenge every peremptory probable that being physically cutor can strike someone for that, objected to on the basis be- could be although impaired, court has held that a one had a who some cause it excluded venireman panel a member’s association strike based on by remaining characteristic not shared handicapped person a does not violate with venire, it a ‘clas- constituted members of Morgan City Albuquerque, v. Batson. subject equal protection scruti- sification’ (10th Cir.1994); David F.3d see also Batson, ny.” at 106 S.Ct. at Cawyer, and Its Hart & Russell D. Batson G. C.J., a (Burger, dissenting). As result Peremptory Progeny Prohibit the Use of lawyers its trial must progeny, Batson Challenges Upon Disability Based and Reli per- for each to articulate a reason be able gion, 26 Tex.Tech.L.Rev. 109, 112-18 However, re- emptory they exercise. strike (arguing panel on mem that strikes based a lawyers for the quiring to articulate reasons unconstitutional). disability ber’s thwarts their peremptory "of strikes exercise ability juror simply to remove a because of an in- applying In Batson to addition feeling as a hunch or unquantifiable such creasing groups, number of courts have used juror is intuition that biased toward peremptory Batson to limit the use of strikes lawyer’s summa- client. One commentator instance, ways. longer For in other it is no lawyer by depriving a rized is lost what party challenging the difficult for the exer- ability this as follows: peremptory cise strike to demonstrate Reason, custom, and sense take common Equal state action in order to establish an (or jury judge). only one so far with re- Protection Clause violation. Edmonson nature, is a of human The rest matter difficulty in proving moved most of state much, litigators learn about which must action in civil at cases. capable explanation of it rea- little (noting at state ac- analysis. soned every step jury in the present Younger, Peremptory Irving Chal- per- process except parties’ selection for the Unlawful Litigation 1980). (Fall lenges, strikes, emptory strikes are colored action). currently system per- in We have a which emptory challenges theory, in but not in exist Also, away have some courts moved Thus, suggest reality. I we reform Texas litigant Batson’s on focus Rules Procedure and 233 to of Civil impartial to a fair trial instead now change wrought by its reflect the Batson and jurors focus on the to be free from chal- progeny peremptory on exercise process. discrimination selection lenges. Ohio, Court held Powers 1364,113 III. APPLYING BATSON (1991), that a white TO THIS defendant could make CASE juror Batson claim on behalf of a black be- refusing I believe trial erred prosecutor’s peremptory strike of cause the trial. It is to admit evidence from first juror juror’s equal protection violated the undisputed prima that the established although rights. explained The Court plaintiffs per used their facie case juror right individual does have a “[a]n improperly in the emptory strikes second jury, any particular petit ... he she sit plaintiff trial. officers used Because the possess does not to be excluded all strikes remove black members, from one on account of race.” Id. resulting panel was com panel its solely jurors. S.Ct. at 1370. Powers not without prised of white Powers 489,491 (Tex.1991), Regarding ruling Palacios, Geor- critics. a similar McCollum, gia v. noted in trial Justice Thomas and remanded for new Court reversed decision, “[tjoday’s while strike to party concurrence when a used one prospective protecting jurors, only on the leaves defendants less black exclude — State, Straughter protecting panel. means also themselves.” at-, (Tex.App. [1st 112 S.Ct. at 2360. — Houston -writ) (using peremptories panel Dist.] move black members in two similar jury panel strike four cases. Thigpen, black members See also Edwards v. (S.D.Miss.1987) (ad prima F.Supp. possible establishes a facie case of 1375-81 selection). discriminatory mitting pattern excluding prece- Given these evidence of dents, jurors black period it is the initial 318 trials over a clear that inference that years), nine plaintiffs peremptory sub nom. used their Edwards v. strikes aff'd (5th Scraggy, Cir.1988), improperly was tenable. F.2d cert. Black, denied sub nom. Edwards 489 U.S. prima After a showing made facie 1059, 1328, S.Ct. discrimination, purposeful the burden Appeals Texas Court of Criminal has shifted to the to articulate officers race-neu “any held that the trial must court consider justifications tral for their strikes. Keeton v. evidence offered defendant to show State, 861, 867-68 (Tex.Crim.App. pattern practice prosecutor of a using 1988); State, 195, Tompkins v. 774 S.W.2d peremptory challenges racially discrimi aff'd, 754, 200 (Tex.Crim.App.1987), 490 Keeton, natory manner.” 749 S.W.2d at 866 2180, 109 S.Ct. 104 L.Ed.2d 834 Antwine, (quoting 51, State v. 64- controversy in this case arises at the next (Mo.1987), denied, 1017, 108 cert. stage hearing, of the Batson when the chal 1755, (1988)). 100 L.Ed.2d lenging party showing offers evidence I pretextual. the race-neutral would cases requiring reasons are follow those trial addressing Courts courts to recognized racially-moti- this issue have consider evidence of previous that once a vated proceedings. race-neutral reason for the strikes strike One offered, party raising allegations is was police the Batson chal officers’ that the lenge given preferential chief demonstrating can offer was treatment evidence be- Thus, Keeton, given pretextual. the reason cause he is black. race was an issue in 868; Slaughter, 749 S.W.2d at this case. 801 S.W.2d at Evidence the first selec- However, significant party showing 613. would have what can use as been peremptory evidence to show that race-neutral the officers articula used strikes as pretext part discriminatory pattern. tion is no of a more than for the dis Because criminatory use of the trial challenge court’s refusal consider the offi- unclear. cers’ clearly behavior in the first trial was erroneous, I would reverse the gives opportunity This case clarify us an the court point. this what evidence a trial can consider at stage hearing. of the Batson Other courts that have addressed this issue have

held that panel evidence of exclusion black previous proceedings

members is admis

sible to rebut the neutral reasons offered party striking jurors. prospective The PRUDENTIAL INSURANCE Davis, (11th Jones v. F.2d 838-39 AMERICA, COMPANY OF Cir.), denied, cert. Petitioner, (1988), 100 L.Ed.2d 199 the court al lowed the defendant to introduce evidence of ASSOCIATES, the district JEFFERSON LTD. attorney’s use of Goldman, Respondent. panel strikes to F.B. remove black members in other cases. The court observed that No. D-3096. district attorney’s failure to offer evidence of Texas. refuting pattern existence exclud ing jurors significant. black Id. at was 839- Sept. Argued 1993. Gordon, 40. In United F.2d Decided March (11th Cir.1987), dismissed, cert. Rehearing May Overruled 101 L.Ed.2d (1988),the court the defendant held that was prose

entitled to introduce evidence peremptory challenges

cutor had used to re

Case Details

Case Name: City of Beaumont v. Bouillion

Court Name: Texas Supreme Court

Date Published: May 11, 1995

Citation: 896 S.W.2d 143

Docket Number: D-4004

Court Abbreviation: Tex.