County of Dallas v. Wiland

DALLAS, THE OF COUNTY

Petitioner, WILAND, as Administrator

Linda L. Gaines, Stanley

the Estate of Jim Gill Avina,

iand, Respondents. and Sonia

No. 04-0247.

Supreme Court of Texas.

Argued March 16, 2007.

Decided Feb. Hankinson, Thompson,

Rick Deborah G. PC, Hankinson Law Offices of Deborah Richman, of Marc H. Marc H. Law Offices Richman, Brenna, Bart Bev- Hugh Grant ers, TX, for Petitioner. Hixon, DeWolf, K. R. Steven Todd Donnelly, Bellinger & De- Haakon Thomas Matz, Clerk, Wolf, L.L.P., Fifth Lisa Dallas, Alex Al- Appeals, of Wilson Court Alexander, Alexander Du- bright, Douglas LLP, TX, Townsend, Austin & bose Jones Respondent. Carter, Law En- Richard Combined W. Texas, Fort Associations of forcement TX, for Amicus Curiae. Worth opinion of HECHT delivered the Justice Court, in which Justice GREEN, WAINWRIGHT, Justice Justice JOHNSON, joined. and Justice WILLETT Dal- deputy constables covered Three system contend las terminated their just cause and without ment without thereby denying them substantive hearing, violation and Amendment to the United the Fourteenth Constitution,1 entitling them to and States Rights Act damages under the Civil actual (to refer as “section of 18712 which we CONST, XIV, juris- ("No person within the or other § 1 State United States 1. U.S. amend. life, liberty, any person any or deprive deprivation ... shall thereof to the diction law....’’). property, without due secured rights, privileges, or immunities laws, be liable to and shall Constitution who, ("Every person un- 2. 42 U.S.C. law, party injured in an action at suit statute, ordinance, regula- any der color of proceeding re- proper equity, or other tion, custom, usage, any State or Territo- ”). dress. ... Columbia, subjects, or ry or the District of subjected, any citizen of the to be causes 1988”). so as to partial arbitrary capricious court vio- granted The trial process. summary on substantive due judgment late liability judgment issues and rendered Accordingly, judgment we reverse jury’s of actual findings damages, remand the case appeals the court court hold appeals affirmed.3 We court. to the trial that: I

(cid:127) system’s cannot covered cause, discharged January taking Before office on thus Constable newly-elected Dallas employment; Dupree sent letters consta- Mike Gaines, Gilliand, Stanley and bles Jimmie (cid:127) deputies the discharged Avina, notifying “your them that Sonia the hearing before the civil service my services under administration will not promised by system commission rules say why. He not After required.” did just exist- determine whether cause office, taking Dupree the oath of refused ed, proce- and thus were denied 4 deputies the oath the three administer process; dural due badges weapons. and collected their and (cid:127) having for been denied process, could recover a century, “For well over injuries from resulting for State, general rule in this as in most employment, loss of their jurisdictions, has been that ab American requested, cause did specific agreement contrary, to the sent a termination; exist for their employment may by be terminated (cid:127) because court the trial erred in hold- will, employer employee good or the for

ing that the absence of cause had cause, cause, no cause at bad or all.”5 law, been established as a matter of applies by to deputy This rule statute proce- the deputies’ claim for denial of sheriffs,6 leading some courts to conclude dural due process must be remanded deputy employment that a sheriffs term of for proceedings; further automatically expires the sheriffs when (cid:127) a government employee’s office term of does.7 While there is similar statutory provision deputy is not con protect- by stables, too,

ed process, they, substantive due are at-will were, v. generally, Arrington even if it and in the case of decision Dallas, discharge appeals court of the constables was 2003). (Tex.1991); (Tex.App.-Dallas 124 S.W.3d 390 Winters v. Chronicle Pub. Houston 3. Co., 723, (Tex.1990); S.W.2d Sabine 795 723 (re- § See TEX. LOC. GOV’TCODE 86.011 4. Serv., Hauck, 733, Inc. v. 687 S.W.2d Pilot quiring deputy appointed constables be (Tex.1985); v. East Line & R.R.R. Co. 734-735 constable, by approved by and confirmed Scott, 99, (1888)). 72 Tex. 10 S.W. 102 court, county qualified commissioners sheriffs); provided deputy manner 85.003(c) ("A § LOC. GOV’T CODE TEX. (requiring deputy id. 85.003 sheriffs sheriff.”). pleasure deputy serves at the office). take the oath of Pollock, 513, Brown, S.W.2d 7. See Abbott 517 Montgomery Hosp. Dist. v. 1997, denied); 501, (Tex.App.-Austin pet. El (Tex.1998) Paso (citing S.W.2d Feder Ass'n, Dutschmann, Deputies 's Inc. v. Saman Express Corp. al 846 S.W.2d Sheriff 727, 282, (Tex. 1993) curiam); (Tex.App.-El (per iego, Paso Schroeder Inc., 483, Works, denied). v. Tex.Iron 813 S.W.2d writ enforce- have been authorized to create concluded that because the law counties their authority granted sheriffs and ment systems service for certain civil authority granted to the similar ees,11 certain counties have and since term deputies, “[t]he constables and depart- been authorized to create sheriffs constables, deputy as that of deputy systems department civil service ment sheriffs, expires principal’s term when including deputies.12 In employees, expires.”8 Arrington pending case was de- while cision, Legislature expanded group may

But at-will county employees that a could include public employees, modified. For system,13 thereby civil general its service employer, agreement be done with the to choose to extend civil manual,9 allowing personnel through as in a systems.10 certain service constables.14 Since 200,000 lowing county population (Tex.App.-Dallas with a 8. 792 S.W.2d denied). system civil more to service writ establish covering person position "a obtains who Barton, City 967 S.W.2d Odessa appointment who is not authorized and of (Tex.1998) ("Here, employment its perform governmental in- statute to functions manual, City Odessa the ben- of conferred per- volving an of discretion in the exercise just-cause employees, of status efit on its right, person included own unless the son's limiting remedy while at time the same adopted by a local civil rule under service re- upon termination administrative 158.009; a procedures in Section or outlined parties agree manual view. ... The coverage county person of a included in status.’’). [employees’] at-will modified system service as the result of an election civil a [but not] held under Section 158.007 ... 334, (Tex. Long, 207 10. Thomas v. person who an office the term of which holds 2006) (“Absent express agreement to the an state”)). by is limited the constitution of this contrary, employment-at-will an Texas is However, modify employer may an state.... 1981, R.S., 6,May Leg., 67th ch. 12. Act of of the at-will status of terms 119, (allowing Laws a 1981 Tex. Gen. case, employees. Coun [Harris its In this ' county population with of more than 1.5 a ty Department Com Service] Sheriffs Civil system cov- million to establish a civil service procedures implement for dis mission’s rules any ering deputy "a other sheriff actions, including ciplinary termination (codified department”) the [sheriff’s] ee of omitted)); (citations LOC. just cause.” TEX. at LOC. GOV’T CODE amended TEX. (autho §§ & GOV’T CODE 158.002 158.009 (allowing county a §§ a 158.031-.040 rizing a in certain civil service commission 500,000 population of than to establish more tenure, lay adopt regarding counties to rules covering employee system civil service "an a offs, dismissals, actions); disciplinary id. including] a department ... of a sheriff’s 158.035(a) (same §§ sheriff's 158.032 & sheriff”)). department cer civil service commissions in counties). tain R.S., May Leg., ch. 71st 13. Act of (adopting the Laws 3879 1989 Tex. Gen. R.S., May Leg., ch. Act of 62nd "employee” now contained definition (allowing a Laws Tex. Gen. 158.001(2), supra LOC. CODE TEX. GOV'T 300,000 more population with a or authorizing a com- civil service note covering system service a civil establish regarding defini- adopt rules “the mission ap- "any person position obtains who his county employee”). of a tion by stat- pointment and who is not authorized his perform governmental functions in ute to Hearings the House involving on S.B. right some of discre- own exercise Before R.S., Comm., tion, Leg., 71st 1-2 a holder an office [but ... not] Affairs 1989) (statement Rep. (May Steven Wol- limited the Constitution term of which is ens) Texas”) (codified Au- (transcript from House available State as amended (al- Services) (“So, simply, what this §§ LOC. CODE 158.001-.015 TEX. GOV’T dio/Video (C) insubordination; had a civil service system since Until 1975.15 the commis (D) felony; conviction of court establishing sys sioners orders (E) in- conviction of misdemeanor July tem were codified on 2001 16—and turpitude; volving moral therefore for of this purposes case—the (F) system failure to for work without report was set out in the Dallas County reason for absence reporting Administrative Policies and Procedures (“the Manual”). Manual From supervisor 1990 to to his immediate with- 2003, deputy Category constables were working 24 hours of his normal “C” employees system un shift; covered der section 2.00.17 (G) gross neglect duty; or repeated

Section 1.00 of Manual states that or the Dallas system “is a (H) other conduct inconsistent with systematic appointing employ- method of County. the interest of the ees to promoting office and them for com- 4.22 employee shall be furnished performance.” petency On the inside written notice termination at the page cover the following state- termination, time of or the earliest ment: “Nothing in the [Manual] is to be possible time after the date of dis- construed as a contract of specify missal. Such notice shall provision guaranteeing the specific term cause for termination.... or tenure of employment.”18 The rules governing in pertinent dismissal state part: shall supervisor 4.23 inform his 4.21An employee may be dismissed Official/Department Elected Head of from County prior the without notice his intention to employee, dismiss an just for including, cause but not limit- cause(s) specifying the and do so ed to: Official/Department with the Elected (A) incompetence; approval Head’s unless the Elected

(B) conduct; offensive Official/Department previ- Head has deputy Bill does it "concluding] is makes the ments and constables to section 158.009 act, subject to the doing civil service and in adopt defining a may that commission rule so, things. it takes care of two Number one it deputy ‘employees’ constables as covered protects deputy being constables ... from system”). the reasons, political fired secondly, and it will County benefit the because it delineates CODE See DALLASCOUNTY 86-52. deputy when a constable can be fired and proper what procedures firing those are for 16. Id. ch. 86. constable.”); deputy Hearings on S.B. 1006 Intergovernmental the Senate Relations Before provisions 17. All references to Manual are to Comm., R.S., 4, 1989) Leg., (Apr. 71st Section A. (statement Johnson) of Sen. Eddie Bernice (transcript available from Senate Staff Ser- "nothing 18. The states dissent shows the ("[T]his vices) legislation simply provides for disclaimer; adopted ever it is the the constables to the civil come into service of only part of the in our record without Manual program.”); the civil service see also showing an order date (1997) number and when Op. Att’y Letter Tex. Gen. No. 97-016 adopted.” was It Post at is not clear (noting that section 158.009 was amended why legal questions the dissent the effect of express allowing purpose "for the counties deputies the have never to include within disclaimer when the constables their civil disputed systems”); Op. Att’y part service Tex. of the Manual in Gen. No. it was (1996) (discussing DM-385 the effect 1989 amend- when their terminated. ously had given supervisor the termination fore action occurred of authority. deputies complain. which the could The 4.24 are dis- commission did not consider whether there Employees being who predetermina- are to a dismissing

missed entitled the deputies. was cause their Of- tion conference with Elected The deputies attempt three did the fieial/Department Head be told In- appeal commission’s decision.19 reasons termination. stead, they under sued section non-probationary, 4.25 If a em- regular them alleging terminating ployee being unjustly feels ter- he is hearing, cause and without may minated he utilize grievance had denied them substantive system.... in violation of ... grievance upheld, 4.26 If a depu- the Fourteenth Amendment. The may employee reinstated ties did not ask the trial court order granted pay.... back give hearing commission on the them Complaining wrong- had been grievances. merits Gilliand, terminated, Gaines, fully partial summary judgment, moved for ar- timely grievances. Avina filed procedur- guing been denied personnel rejected director resulting al and due process, them, explaining that employment. County, their loss of did not terminate Constable-elect response, deputies’ its contended that However, it deputies]. opin- [the automatically employment ended when newly ion of Dallas previous expired term and that constable’s obligated elected Constable is reappoint refusal to not a dismiss- previous Deputy em- swear-in Constable granted deputies’ al. The trial court ployees. This conclusion was based motion, stating in its order: the premise Deputy Constable argue Dupree’s Plaintiffs Constable at the serves discretion the Constable failure to swear them in was tantamount authority and the has the Constable Court, to a The after review- dismissal. responsibility to his own staff. select law, ing agrees the with Plain- relevant commission, The comprised position tiffs’ and concludes that the fail- commissioners, county three a conducted Gilliand, ure to Avina swear Plaintiffs the hearing limited to the issue of whether equivalent and Gaines was the of dis- deputies’ grievances presented could Accordingly, they missal. were entitled under The com- system. the civil service the procedural pro- to substantive and deputies’ mission determined that the policies forth in the and tections set grievances presented, relying could not be including handbook set procedures those that attorney from district advice the begin- forth in the “dismissal” section deputies’ employment automatical- ning at section 4.21. To the extent that ly expired prior with term of the con- Amended for Partial stable, Plaintiffs’ Motion to that new constable’s refusal judicial Summary Judgment a de- subject a seeks reappoint them was not dismissal that to provisions, to the and that there- termination were entitled Manual’s 158.012(a) by appeal filing petition LOC. the decision in a 19. See TEX. GOV’TCODE who, (“A county employee days on final decision within district court in commission, demoted, suspended, or decision.”). is after the date of employee’s position may removed from the protections appeals those but did receive The court of affirmed.21 It that them, agreed Dupree’s the trial court them motion GRANTED. swear in the “tanta- failure to was Damages jury. were then tried to a mount dismissal” and therefore covered jury only was instructed consider of appeals the Manual.22 The court deputies’ benefits, earnings lost and require construed the Manual cause distress, anguish mental and emotional every rejected dismissal.23 It ... “resulting from ... dismissal from argument 4.21 section re- employment”. jury was not asked quires just cause dismissal consider whether cause for the existed notice, prior noting without when no- deputies’ discharge nor to assess given, requires tice is section 4.22 it resulting hearing from the denial of a be- “state the cause for termination”.24 The fore the civil tri- service commission. The rejected County’s argument court also al judgment court rendered on the verdict exclusive, that the list section 4.21 is not awarding deputies damages follows: observing virtually every “includes reason except conceivable for dismissal benefits, Lost earnings employee omission, By termination without cause. anguish mental and emotional dis- termination without cause is unavail- tress— agreed able.” The court with the Coun- past ty gives employees the Manual 400,000.00 Gaines’s estate20 $ 223,560.00 Gilliand rights, expressly $ contract stated on the 168,955.00 Avina $ cover, disagreed inside front meant remained at-will.26 in the future Rather, court, said the Manual gave 300,000.00 Gilliand covered interest of 439,550.00 Avina deprived which could not be 1,532,065.00 Total damages guaranteed 215,748.33 Prejudgment Fourteenth Amendment.27 362,554.50 Attorney fees 8,147.02 due, said, Costs court set out in was that terminated’); Deputy Gaines died County, on October Warnock v. Pecos filed, (5th Cir.1997) ('[fjor four months suit after and his inter- F.3d 779 n. 1 our represented by ests have since been Linda L. purposes, there is no difference between fir Wiland, administratrix of his estate. ing declining reappoint.’)); see also Hogg County, McBee v. Jim 730 F.2d 21. 124 (Tex.App.-Dallas Cir.1984) (5th (enbanc) (same).”). 2003). 398. 23. Id. at ("The finding 22. Id. at 399-400 trial court’s County’s Dep- refusal to the swear in omitted). (emphasis 24. Id. at 397-398 uties was tantamount to dismissal reflects both Fifth law and Circuit common sense. 397. 25. Id. at Likewise, we no ter- see distinction between mination and failure to in’ or re- ‘re-swear Ingram (citing 26. Id. at 398-399 Dallas law, Deputies hire. Under the the were ter- Tex., County, F.Supp. 1152-1153 Samaniego, minated. See Battin 23 S.W.3d (N.D.Tex.1988) (concluding employees that (Tex.App.-El pet. 189 n. 29 Paso by the civil covered service denied) Brady County, (citing v. Fort Bend system property a in continued have interest (5th Cir.1998) (‘that depu- F.3d the employment)). by ties were terminated a rehire" "failure to rather than to the a "dismissal” is irrelevant question they impermissibly of whether were 27. Id. at 399. Manual, griev- tenure and cannot be fired without healing a their their including process.”33 only hearing depu- the due ances.28 Since afforded was limited to ties had been depu- responds But the they present entitled to whether were reading of the Manual is not correct. ties’ they denied grievances, had been only employ- that “[a]n Section 4.21 states due entitled prior may be dismissed ... without ee by jury.29 The found added); just for it (emphasis notice cause” unnecessary to court thus found it address may employee that an be does state essentially it “the identical what called cause, only for nor does dismissed claim.”30 may an not be dis- employee state that prior with no- missed without cause County’s granted petition We holding notes our recent tice. review.31 Matagorda County in District v. Hospital personnel “a in a Burwell that statement II may policy ‘[ejmployees manual that be pro The Fourteenth Amendment for cause’ [does not] constitute[ ] dismissed life, liberty, propert in tects interests agreement may only an be dismissal deputies claim a inter y.32 property cause, at-will thereby modifying in employment est continued relationship.”34 They they have no County. concede that reply that section 4.21 rights, expressly the Manual contract states, conjunction provi- argue that 4.21 must be read they section immediately requiring that employees following, can be sions provides covered words, employee given In an notice of termination only for cause. other dismissed (section 4.22), “specifying] cause” contend that while have his agreement County, supervisor superior a advise his rights by no with the property employee, “specifying have a inter intent dismiss an they nevertheless cause(s)” (section 4.23), employees created est law, is, being predeter- are entitled to ordinance. dismissed correct, “to told rea- mination conference reading If their of the Manual is (section 4.24), interest, protected property sons termination” that he is employee complain that an for as the United States Court (section 4.25). stated, being “unjustly terminated” “public who can be manual con- personnel have a constitu The Burwell discharged for cause provisions suggesting tionally in tained other protected property 593, 602-603, 92 S.Ct. 33 L.Ed.2d 570 See id. at 399-400. 28. (1972)); Civil accord Bexar Sheriff’s Id. 29. Davis, Serv. Comm’n (Tex.1990) ("A 'for cause’ limitation on n. Id. public employee creates an dismissal of 11, 2005). (Feb. Sup.Ct. J. 383 Tex. to continued individual entitlement protected that is ment considered Supra note 1. purposes right of the Due Process for Clause.”). Homar, 924, 928-929, 520 U.S. 33. Gilbert (1997) 1807, (cit 138 L.Ed.2d 120 117 S.Ct. (Tex.2006) Roth, (per 738 cu 34. 189 S.W.3d ing Regents Board State Colls. of of riam). 408 92 S.Ct. 33 L.Ed.2d U.S. Sindermann, (1972); Perry 408 U.S. is, only from, could for cause. a decision that can dismissal The be —that concede, argue wrong. if Manual deputies deputies does not But the as dismissal, must, county cause then require requires for the civil that no statute system system is with a require service worthless. The to also important Nothing prohibits answers the Manual affords cause for dismissal. procedural protections though county even from a civil adopting system em- service ployment rights remains It procedural at-will. assures affords while at-will.36 personnel willy- decisions cannot made remains The statu- nilly tory County argues, and that are is employees right appeal, entitled to highest county at the for a civil gov- employees system review level under service by a to comprised gives right commission some ernment — three members appeal commissioners ment. The fact is ineffectual court. The employees rights deride as “feel- with such cannot good” civil system lacking any requirement service be used to imply a that all real substance. civil employees service have them when governing the statutes civil sys- service also note that civil subject. tems are silent on the employees service are allowed statute appeal commission decisions to the dis civil system service trict court clearly under the substantial provides employees impor evidence covered If rule.35 need not tant procedures hearing deciding commission have a and decisions, deputies ask, grievances, reason its but entitlement to proce point what is the right appeal? property dure alone does not create a in appeal something terest; assumes appeal moreover, the entitlement 158.012("(a) 1, 2006), § Regulations 35. TEX. LOC. (July GOV’T CODE Personnel who, employee An http://www.co.harris.tx.us/hrrm/Personnel on a final decision commission, demoted, (last -) suspended, Regulations.aspx (pro- or re- accessed position may appeal moved from a viding procedures the deci- under TEX. LOC. GOV'T by filing petition §§ sion in a district any griev- court in CODE 160.001-.006 "to settle county days within employee after the date of ance between the and an as decision, (b) appeal An under quickly possible this section as assure efficient work rule, operations under the positive employee substantial evidence and the and maintain morale”, judgment appealable of the stating "[ejmployment district court is as but is at- cases, (c) other period civil If the district court will for an indefinite and the or judgment petitioner, employee renders for the the court District and the are free to termi- employee, order reinstatement nate or without notice at reason”). payment pay, appropriate any any of back other or time for relief.”). Loudermill, 37. See Cleveland Educ. v. Bd. of 158.009(a) 532, 541, 36. See TEX. CODE LOC. GOV'T 470 U.S. S.Ct. 84 L.Ed.2d 158.010, (1985) (" ("Except provided by Section ‘Property’ cannot be defined publish, adopt, procedures commission shall provided deprivation and enforce for its (1) regarding: county any liberty.”); rules the definition of a more than can life Town cf. (2) Gonzales, employee; and selection classification Castle Rock v. U.S. (3) (2005) (stat county employees; competitive examina- S.Ct. 162 L.Ed.2d 658 tions; (4) tenure; promotions, seniority, ing seeking that "the of an arrest warrant dismissals; (5) (6) layoffs disciplinary nothing proce ac- would be an entitlement tions; (7) (8) grievance procedures; inadequate oth- dure—which we held even to relating county support standing; er matters to the selection of much less can it be the (citation and the and substantive basis for a interest” omit J., advancement, benefits, ted)); rights, (Souter, working id. at S.Ct. 2796 ("Just concurring) employees.”); conditions of a State cannot Harris diminish cf. stable”,39 more, not re- procedures, does constable should be such without status, thereby deputy to a in whom he does quired alter an at-will retain employee’s argument have not confidence. The would creating property a in continued fact, have more force but for as we summary par- employment. As our noted, already Legislature have reflects, whether arguments ties’ employees that a redefined only for employees may be dismissed protec- could choose to afford civil service can question. cause is a close including express purpose tion being on rightly be faulted for not clearer deputy County argues constables.40 The in the But we subject Manual. as deputy constables should be treated Burwell, stated in a limitation on at-will sheriffs, deputy by like who serve statute be employment simply “cannot inferred.”38 pleasure But no the sheriff.41 balance, we think that such limitation On a constables, deputy applies such statute to inference, is more than an Manual besides, deputy may af- sheriffs be import and that the fair of the Manual’s protections forded civil service some whole, provisions, taken is that cov- as on counties.42 The relied the court discharged to be employees ered are not Arrington, after appeals’ decision but being given they can without a reason resulting change in the law to allow expectation in em- contest. This to to be extended cause, not a ployment except while constables, deputy simply there is no merit expressly contract right, the Manual County’s position deputies that the to disavows, property nevertheless a inter- is discharged. not were may est of not de- which be due prived process. were It follows the Manual to a hear entitled under

Ill ing grievances, on their and since agree with the lower courts We a hearing, were denied such were discharged were process. gener denied “In simply al,” University terminate did Texas we stated Than, automatically Dupree remedy when took “the for a Constable Medical School v. deputy process.”43 argues office. The denial of due is due with In that we determined that a medical constable’s should end case due-process rights the constable’s term of office because student’s violated statute, responsible portion his from a constable exclusion “[t]he him hearing charges against acts of the con- evidentiary official each conferred, right, attaching property 38. 189 S.W.3d at 739. once generous procedure depriva- less than tion, [Loudemill], its does a create neither State 86.011(c). TEX. GOV’T 39. LOC. CODE right by ordaining property merely benefi- procedure cial unconnected some articula- Supra accompanying text. notes 13-14 and guarantee. say

ble This is not to may procedure rules of executive state Supra note 6. significant provide reasons infer an property protect- right meant articulable Supra accompanying 12 and text. note ed; say that we have not identified procedure as such. State rules (Tex.1995) (citing 43. 901 S.W.2d important, procedure, of executive however Sindermann, Perry v. U.S. nothing than rules of executive more (1972)). procedure.”). 33 L.Ed.2d 570 S.Ct. dishonesty.44 for academic held that But County We the was more careful in its “[ajdmit he was hearing entitled to a new before admissions. Asked deny or any sanction imposed.45 could be any Plaintiffs were not terminated for of the allowed reasons for termination as deputies argue The that the absence of [Manual]”, County set forth in the the cause for simply their dismissal is undenia- responded: “Defendant admits the reason they given ble. Had been hearing the they for the notice to Plaintiffs that would grievances their promised the Manual Deputy not be sworn in as Constables them, they continue, possible re- Dupree Michael was not one of ‘al- sult would have been By reinstatement. lowed reasons’ under [Manual].” denying them process, deny you Asked further to “[a]dmit County deprived jobs. them of their ‘just had no cause’ in dismissing Plaintiffs Therefore, assert, they they are entitled to from their as consta- monetary damages for earnings lost [Manual]”, bles as term is used in the benefits and for mental anguish and emo- responded: “Defendant admits distress, tional past and in the fu- that the decision not to swear Plaintiffs ture, “resulting from ... dismissal from ‘just was not based on cause’.” The Coun- ... employment”, charged as to and found ty has just not admitted that no cause jury. existed. The civil service commission be- fact, But in whether there was cause to lieved that just the existence of cause for deputies dismiss the has never been estab- dismissal was irrelevant depu- because the lished because the has taken the dismissed, ties had not been based on the position throughout that legal opinion of Attorney’s the District of- never dismissed at all. The Hence, fice. it never formally inquired consistently contended that the deputies’ Dupree whether had reasons for not re- terms of employment automatically ex- taining the deputies, or what were.46 pired when Constable Dupree took office and he refused to administer the oath of The United States Court office to them. The hearing before the addressed a similar situation in Carey v. civil service commission was limited to that Piphus, which involved public two school issue, and the were not allowed to suspended students without procedural present grievances process, had due who then sued damages been dismissed without depu- cause. The under section 1983.47 The district court argue ties has admitted concluded that the prove students failed to that no cause for their dismissal existed. declaratory but were entitled to 44. Id. at 931-932. County’s responses did not "hide its actu- defense”, charges. al as the dissent Id. at 933-934. County’s position dep- was well known to the very beginning. uties and had been from the argues 46. The dissent re- responses County’s position reflected the sponses do not meet the substance of the accurately. Responding accurately requests 198.2(b) requests required by as Rule merely for admission is not allowed Texas Rules of Civil Procedure. Post procedure, required, doing rules of it is disagree. We simply To requests admit the not, unfairly charges, so is dissent suggested worded would have that no "gamesmanship”. Id. discharging deputies, cause existed for deny requests and to as worded would exist, suggested cause did when 47. 435 U.S. 98 S.Ct. L.Ed.2d fact, (1978). explored. the matter had never been injuries expunction suspensions by suspensions and to of the caused the relief Nevertheless, windfall, from their school records.48 than would constitute a rather complaints the court the dismissed without respondents. do compensation, to We ordering declaratory relief.49 court of parties disagree to not understand the remanded, appeals holding reversed do with this conclusion. Nor we.53 injury the “non-punitive damages that for Importantly, the Court did not Supreme is ‘inherent the nature of the which be to state that the students would entitled wrong’ are recoverable for a violation of damages resulting suspensions from their right process”.50 procedural the to due have they they could show would not damages The court that for “special added been suspended given had been school as a days plaintiffs the lost result of only hearing. Court said Supreme suspensions” should also be consid- that could not recover such the students Supreme disagreed ered.51 The Court if the show damages school officials could that students could recover substantial have sus- students would still been “non-punitive damages” proof absent of ac- hearing. pended given had been injury tual caused the denial due 1983,” § “[D]amages under accord- awards Concerning process.52 damages from the Court, ing governed by to the “should be explained: suspensions, Court (although principle compensation”54 process Procedural due rules are meant possibility punitive dam- open left protect persons depriva- to not from ages).55 tion, unjusti- or but from mistaken life, deprivation liberty, fied or prop- The Court further that held erty. ... damages mental students could recover case, In Appeals the Court of held distress, only any emotional petitioners

that if can on remand prove actually having caused not distress “[respondents] would been procedural prot appropriate been afforded if a suspended proper hearing even Absent evidence of such dis ections.56 held,” respondents will been then not be tress, limited nominal the students were damages compen- entitled to recover damages: injuries sate them for caused procedural due right Because suspensions. thought The court process that it is “absolute” sense case, proce- such the failure to accord depend upon the merits of a does process properly dural due could not assertions, claimant’s substantive suspensions. viewed as the cause of the organized suggested importance The court in such cir- because cumstances, due damages society procedural an award of 251-252, 48. Id. at 1042. 54. at 98 S.Ct 1042. S.Ct. Id.

49. Id. at S.Ct. 1042. ("This 55. n. is not Id. at 257 98 S.Ct. punitive damages say exemplary or (7th Carey, Piphus 50. Cir. F.2d might proper be awarded in a case under 1976). deterring purpose specific 1983 with Id. at 51. 32. punishing violations of constitutional rights.”). Carey, at 98 S.Ct. 435 U.S. 263-264, 259-260, (footnote 98 S.Ct. 1042. 53. Id. at Id. S.Ct. omitted). citations observed, far. Had it mary judgment went too held we believe denial procedural action- due should be had been denied proof able for nominal there, stopped process and injury. actual We therefore hold could have to offer parties proceeded if, remand, upon the District de- Court just regarding the existence of evidence respondents’ termines that suspensions cause, the could have re- deputies justified, respondents were nevertheless jury that issue. To quested findings on will be to dam- entitled recover nominal judgment against deputies the now render ages peti- not to one exceed dollar from just for the lack of a record on cause would tioners.57 punish prevailing be to them for on their Carey makes clear the case present partial summary judgment. for motion just if deputies’ cause existed for the suffer from deputies The should not the dismissal, County’s give refusal trial court’s error their favor.58 them a hearing on the issue could not have damages caused “resulting from ... dis- deputies’ recovery of dam employment”. missal from ... con- We ages “resulting from dismissal ... from just clude that the existence of cause ... employment” must therefore be re never ar- been established. The deputies it been versed because has not shown on gued in partial summary their motion for damages this record that these judgment that it undisputed was the Coun- procedur caused denial ty “did not have ‘for cause’ for reason al But process. due the case must be terminating Plaintiffs ... much less sub- deputies remanded to advance that cause, stantial of such pointing evidence” if contention choose do so. If County’s responses to the requests to two just depu there was cause to dismiss the But as explained, admissions. we have ties, deputies can recover dam responses support depu- those do not ages directly the denial resulting from of a ties’ argument. summary judgment or, any if can hearing, proved, be absent record did not establish either nonexis- damages. Only such nominal proof, cause, just tence of or the nonexistence of just no there was cause dismiss the cause, just evidence of for the deputies’ can the damages recover Nevertheless, dismissal. while the trial from resulting the dismissal.59 We ex granting court’s order motion clear, press opinion no on the burden of entirely how appears the trial agreed proof court cause for dismissal should be had respect, cause. In this sum- partial assigned.60 266-267, (citations any Id. 98 S.Ct. 1042 59. We not consider whether there are do omitted). type damages other limitations on the See, Pontotoc, e.g., awarded. Hill v. (5th Cir.1993) (noting 993 F.2d City Colleyville, 58. See Elder Constr. pay” have held that "front is not some courts ("[W]e (Tex.1992) curiam) (per remed[y] purely proce- "appropriate an agree do not that the trial court author- violation”). process dural due prior ized certain to determine to trial that law, issues were established as a matter Eighth and the 60. We note Fifth basis, conduct the trial and then with- opined public employ that “the Circuits ruling affording parties draw its proving er burden of carries present opportunity jury fair to the their proce plaintiff would have even if been fired positions longer on issues no taken observed.” Brew dural due been Chauvin, (8th established.”). 938 F.2d Cir. er v. damages IV Because we reverse award, attor the award of we also reverse contend that property interest only nominal ney In the event that fees. protected awarded, say cannot damages are we Amendment.62 The under the Fourteenth attorney im certainty that fees would be has never United States Court proper, though nominal ordinari issue, precise although it has decided the attorney fees.61 ly support will not Independent In Harrah come close. Martin, a public School District v. tenured discharged for her refusal school teacher Hill, (5th 1991); rights the In a civil suit for dam- 993 F.2d at 425-426 defendant. see also however, ("An Cir.1993) awarding ages, of nominal dam- employer defend a denial the plaintiff's employee ages highlights the failure to process proof also of due with actual, prove compensable injury. any Whatever event have been fired.... would placed for liabili- erroneously the bur- the constitutional basis substantive district court here § ty, damages a action proof plaintiff awarded in 1983 of on causation on the den Polk, ....”); designed compensate always in- 750 "must be ‘to Alexander F.2d cf. that, 259-261, (3d Cir.1984) juries by depriva- (holding [constitutional] caused 263-264 ” plaintiff only statutory tion.’ When a recovers nomi- where there was a violation damages prove to an plaintiffs Supplemental nal because of his failure of from the removal Infants, Women, monetary Program his claim for and Chil- essential element of Food for relief, usually fee hearings, defen- reasonable fee is no proper without the dren § proving plain- at all.... awards under 1988 [F]ee had the burden of that the dant " ‘produce at- prevailed never intended to windfalls to tiffs have even if would not held, (citations omitted)). torneys hearings reasoning that ....’” proper had been Carey] Supreme approved at [in “the Court holding implicitly Circuit’s least the Seventh 62. The included this claim in showing plaintiffs that the burden of that the judgment, partial summary which motion for prevailed is on the defen- would not have granted. did not court trial Circuit, however, dants”). has The Second argue response for or in own motion its stated that the burden to show that termi- appeal, summary judgment, as it process denial was the result of a due nation protected government employment is normally plaintiff”, recognizing "a "is on the process. due dissent asserts extraordinary exception, truly under limited argu- that the failure to make prevents the the defendant circumstances: argument on ment in its motion forecloses the evidence, obtaining plaintiff from access to appeal. have nev- Post 362. The impossible thereby plain- assertion; rather, it and makes they and the er made this carry proof”. Miner tiff to the burden of thoroughly in argued have the issue Falls, (2d City Glens 999 F.2d appeals of and this Court. The the court Cir.1993). given puzzling, the solid dissent’s assertion is contrary. authority to the "While would helpful court Hobby, prudent trial 506 U.S. Farrar (1992) ("In always re to file an answer or some non-movant S.Ct. L.Ed.2d circumstances, summary judgment], formally sponse a plaintiff [to a motion even who response at- no ‘prevails’ the non-movant needs answer under 1988 should receive appeal plaintiff seeks motion to contend on torney’s fees at all.” A who grounds expressly presented to the trial court damages more compensatory but receives no as a motion are insufficient prevail- the movant’s nominal often such than held, summary judgment.” support ing dam- matter law to party. As we have a nominal Auth., City Clear Creek Basin ages plaintiff prevail- Houston v. render a award does accord by allowing his ing party (Tex.1979); to vindicate S.W.2d him Rhône-Poulenc, Steel, Inc. v. right procedural due "absolute” (Tex. 1999); Hosp. & Tu- against M.D. Anderson through judgment enforcement comply continuing stantive must process] education re- background claimed that she had been quirements against de- considered Con- nied substantive due violation of purposes, stitutional have been the Fourteenth Concluding Amendment.63 rationally historically de- perceived the school board’s actions could veloped.” “scarcely as arbitrary”, be described by respondent The interest asserted the claim Court held that university [in enrollment] “wholly But it untenable”.64 also noted essentially right. contract It a state-law that the teacher had made no claim that bears little resemblance to the funda- the interest she “was anything asserted previously mental interests resembling ‘the individual’s freedom of implicitly protected by been viewed as respect choice with certain basic mat- certainly It Constitution. is not procreation, marriage, family ters closely “respect teachings tied to for the protected life’” pro- substantive due history, recognition solid basic cess.65 society, values that our underlie Justice in Regents Powell’s concurrence appreciation great wise roles the University Michigan Ewing of of separa- the doctrines of federalism and often cited as authoritative the matter: powers played tion of establish- Even one assumes existence of a ing preserving American free- property right every ... not right such reasons, briefly ... these doms[.]” For is entitled to the protection substan- summarized, I not think do the fact that process. tive due property While inter- Michigan may have labeled this interest protected by procedural ests are due other, “property” join it to entitles those process even though the interest is de- far important more interests that have rived from state law rather than the protection heretofore accorded the been Constitution, process substantive due process.66 of substantive due rights are created the Constitu-

tion. The United Court of Appeals States recently the Third Circuit has held history process of substantive due government is not employment protected “counsels caution and restraint.” The by substantive due In process. Nicholas determination that a substantive due Pennsylvania University,67 State an process right is a judgment exists “ (now opinion then-judge authored Jus- require ‘certain particularly interests tice) Alito, began by emphasizing the court careful scrutiny of the state needs as- ” legislative the distinction serted to between acts— justify abridgment.’ In “generally broad liberty interests, regu- the context laws and executive this large apply segments Court has lations [that] been careful examine each society” asserted executive acts—“such as interest to determine whether —and it typically “merits” ap- [that] of substantive decisions process. ply claim person “Each new to one or to a limited number of [sub- Willrich, (Tex. mor Inst. v. Id. 1062. 99 S.Ct. 2000) curiam). (per 214, 229-230, 66. 474 106 S.Ct. U.S. 194, 195-196, J., (Powell, (1985) concurring) U.S. 99 S.Ct. L.Ed.2d 523 (1979) curiam). (citations omitted). (per L.Ed.2d 248 (2000). Id. at 99 S.Ct. 1062. 67. 227 F.3d 133 wholly is a persons”.68 reciting public employment After Justice Powell’s [T]enured Ewing right; its own lit- reviewing concurrence and state-created contract bears jurisprudence, the tle other rights court stated: resemblance to property interests that have been plaintiff To chal- summarize: when deemed fundamental under the Consti- act, lenges legislative validity reasonably tution. ... cannot be “[I]t de- process typically substantive due public employment is a maintained rationally mands that act be related deeply interest that is rooted legitimate government purpose. some history in the Nation’s traditions.” contrast, In plaintiff challenges when a public employment Nor approach does (such as an

non-legislative state action “ ‘implicit concept interests decision), must adverse we liberty personal ordered like choice look, matter, to whether threshold ” Ac- marriage family.’ matters of being deprived property interest cordingly, public employment we view “fundamental” under the Constitution. closely more to those state- analogous is, If it then substantive due created this property interests plaintiff arbitrary or protects the from previous unworthy of Court has deemed deprivation, regardless of the irrational process.... substantive due adequacy procedures If the used. “fundamental,” however, is not doing, In so the court noted that it governmental entirely action is out- “jointed] great majority courts side the ambit of substantive appeals that have addressed issue.”71 long upheld and will be so as the state view com- The court added that its also requirements of procedural satisfies the ports Court’s admoni- process.69 due judiciary tion that the federal not should a general court of review for state become Turning specific interest claimed employment decisions: professorship Dr. in his Nicholas tenured Pennsylvania University, appropriate at State the court The federal court not the forum in which to review the multitude concluded: Cir.1990) position (professor's in in Id. 139 n. 1. interest at essentially university department a state "is right, inter- law contract a fundamental Id. at 142. Constitution”); in the Local est embodied 342, Long Employees v. Island Pub. Serv. (citations omitted). 70. Id. at 143 1191, Huntington, 31 F.3d Town Bd. of think, (2d Cir.1994) ("We 1196 do not how- Cecil, (citing Singleton 71. Id. at 142-143 v. ever, simple, contractual state-law 419, (8th Cir.1999) (en 176 F.3d 425-426 more, rights, worthy are of substan banc) ("a public employee’s in con- interest protection.”); process v. tive due Kauth governmental employment tinued with a Ill., Ins. Co. 852 F.2d 958 employer is not as to be so 'fundamental' Hartford of (7th Cir.1988) ("In plaintiff where cases protected by process”); substantive due unreasonably complains he Pate, has been (11th McKinney v. 20 F.3d deprived of a state-created (en banc) Cir.1994) rights are (“employment plaintiff ... a substantive not stated rights created the Con- ‘fundamental’ Jensen, claim.”); Educ., process due Lum stitution”); Sutton v. Cleveland Bd. of (9th Cir.1989) (finding "no (6th Cir.1992) F.2d (“plain- 958 F.2d right clearly constitutional established right tiffs' state-created to tenured process protection due of contin process protec- ment lacks substantive due tion”); public employment” Ninth ued Circuit Huang v. Univ. Bd. Governors (4th 1984)). C., N. 902 F.2d 1142 n. 10 are Fifth re- personnel reasoning, made Circuit has never decisions conclusion,75 daily by agencies. though must ac- visited its has occa- public We sionally might indicated the issue the harsh fact indi- cept that numerous something less than settled.76 think We mistakes vidual are inevitable argument. the better of the Nicholas has our day-to-day administration of affairs. Accordingly, we conclude that the The United States cannot Constitution employment have no interest feasibly be federal require construed to protected by process. substantive due judicial every review for such error.... The Due Process the Four- Clause of if such an Even interest were guarantee teenth Amendment is not a protected, the United States against personnel incorrect or ill-advised ac firmly held executive Court has decisions.72 individual deci tions—which process sions substantive due are—violate agree

We with the Third Circuit wholly only they arbitrary: are nothing in Nicholas and can to its add reasoning. emphasized again time court that the First We have noted touchstone of contrary “[t]he Circuit reached the conclus against of the individual arbi- ion,73 has, and we think the Fifth Circuit government”.... trary action Harrison, In too. Russell 1984 deci predating Ewing sion Justice dealing Powell’s con Our cases with abusive execu- currence, have repeatedly emphasized the Fifth tive action Circuit held that a egregious the most official con- complaint public university employees “arbitrary duct can said to be that their had been contracts constitutional sense”.... pleaded terminated before expired end, substantive due Although claim.74 century To for half a now we opinion analysis court’s offered no spoken cognizable level Wood, omitted)); (quoting (citations Id. Bishop ment.” and footnote 341, 359-360, (5th U.S. 96 S.Ct. 48 L.Ed.2d Douglas, Honore v. 833 F.2d (1976)). Cir.1987) (citing Schaper); City Moulton v. Beaumont, 227, Cir.1993) (5th 991 F.2d 230 Honore); Wilson, Mass., (citing (citing Peterson v. 73. Id. 143 141 F.3d Newman 884 19, Cir.1998) (1st (5th Cir.1989) ("school capri (arbitrary F.2d 580 and authorities firing university employee arbitrary who make an cious violated capricious and deci- process); significantly Malagon due de affecting sion substantive but a tenured teacher’s cf. Gonzales, (5th Fuentes 462 F.3d status are liable substantive for a process violation”)). Cir.2006) ("To due due establish a substantive violation, process plaintiff both must first carefully right it describe that and establish (5th Cir.1984). 74. 736 F.2d ‘deeply history in rooted this Nation's and "). tradition.’ Huntsville, Schaper 75. See City 813 F.2d (5th Cir.1987) ("In v. Harri- Russell Walker, (5th son, 76. Texas v. 142 F.3d this court alleging found complaint that a Cir.1998) (“Moulton exaggerated arbitrary capricious an and status deprivation of a process property due claim for academic states a cause of action un- however, circuits, protection, der Due Process because the Clause. Other however, disagreed squarely Court not decided the issue.” availability about 220-223, process (citing Ewing, of substantive due plain- U.S. at S.Ct. review when Pickar, (5th allege 507)); deprivations tiffs Spuler v. 958 F.2d state conferred rights. [Honoré], Cir.1992) ("In Following the law of this this court acknowl circuit, we hold Schaper edged possibility pro has a substan- substantive due ” added)). right tive in (emphasis tenure cess claim to .... power employees, despite executive as that which still all its abuse were at-will contrary. shocks efforts to the the conscience.77 County believed, legal based on advice County Dallas should be held to its appeals’ and the in Ar- opinion court If the deputy word. wants consta- rington, auto- deputies’ terms had terminable-at-will, say to be bles it must matically in expired. County was er- so, it did amending its civil service ror about effect legal expiration drop in But we again code to them 2003.1 office, aof constable’s term of its amend as it in cannot that code stood decisions were reasoned and nevertheless pre- and should allow the They reasonable. were certainly arbi- way and the code one changing tend trary, nor remotely approach did in the in- again nothing then back meant required conscience-shocking sub- terim. stantive due violation. and ob- sought Because the beyond wages, I

tained far for a new trial. agree we remand must judgment appeals court of issue; only on that I But it should be reversed, and the case is remanded to the have a should disagree trial court proceedings. for further deny everything. them chance to second so, respect- does I To the extent the Court BRISTER, joined by Justice Chief fully dissent. JEFFERSON, O’NEILL, Justice Justice MEDINA, in concurring part Justice Background I. part. in dissenting by noting general begins The Court BRISTER, joined by Justice Chief is at-will. rule Texas JEFFERSON, O’NEILL, Justice Justice passes lightly over But Dallas MEDINA, concurring part Justice efforts to was not extensive ensure this dissenting part. rule for its constables. governments Even should careful systems in Tex- Historically, After what ask for. a Dallas district per- held who County deputy apply court that Dallas con- as did not in their functions employees, leg- governmental stables at-will Dallas formed reason, right.2 precisely islators law For passage obtained of a state own appellate and Dallas a new trial and courts dismissed adopted officials aby code claim late 1980s extending civil-service a civil service Ar- constable, Floyd But deputies County deputy them. three dis- Dallas when were 2001, they charged County rington.3 insisted R.S., 1971, 19, Leg., Lewis, County 62nd May 77. v. 523 U.S. See Act of Sacramento 2. (cur- 262, 1, 833, Laws 1151 845-846, 1708, § Gen. ch. Tex. 1971 S.Ct. L.Ed.2d 118 140 CODE LOC. GOV’T rent version at TEX. (1998). 1043 Stewart, 158.001(2)); S.W.2d 516 v. § Green 133, (Tex.1974) (holding tax assessor- 135-36 Manual, Amending Policy 1.See Order Order service, civil was covered collector (Dallas County Ct. No.2003-1467 Comm’rs were, only the acted former his 19, 2003) Aug. deputy (reclassifying consta- right). own his "Category employees bles as A” covered rules). by civil service Dallas, County Arrington 792 v. 3. denied). 468, 1990, (Tex.App.-Dallas writ 471 363 Gilliand, case, legisla- informing In Dallas response to James Sonia Avina express pur- introduced a bill whose tors reappointed in they them would not be civil pose grant was to service January. they denied a civil When County deputy constables.4 Dallas offi- hearing discharge, service on this hearings at appeared cials committee filed suit. support passed, the bill.5 The bill 1,1989.6 September Dal- became effective Property II. Interest County las Commissioners then amended system deputy to add civil-service dispute parties primary between only employees specifical- constables —the property whether ly protected named ordinance as em- I employment. agree in continued ployees.7 But I with the Court do. do not 2000, In Dupree November Mike question.”8 find it “close Constable, County Dallas Precinct elected employees Public have a inter- 6, defeating the incumbent constable est in govern- primary Republican Democratic and a ment has to fire them agreed “for challenger general election. Before office, question analy- cause.”9 That on an took turns he the constable-elect sent let- deputy Stanley Gaines, ters to constables sis of the civil service rules.10 1, (current Hearings Sept. S.B. on 1006 Before the House 1989 version TEX. LOC. Comm'n, Leg., (May 158.009). Affairs R.S. 158.001(2), st §§ GOV’TCODE 9, 1989) (statement Wolens) Rep. Steve ("So simply what this bill it does is makes the Manual, Amending Policy 7. See Order Order deputy subject constables to the civil service (Dallas County No. 90-1567 Comm’rs Ct. act, doing and in so it care takes of two 18, 1990) Sept. (adding to definition of cov- one, things. deputy protects Number it con- deputy ered "The term includes reasons, being political stables from fired for constables.”); DALLAS COUNTY ADMIN. secondly county will benefit the as it §§ POLICIES & PROCEDURES MANUAL A deputy delineates when constable can be 1.03, (hereinafter (Aug.2000) 2.00-2.01 MAN- fired proper procedures and what those are UAL) (current version at DALLAS COUNTY constable.”) firing deputy (tape available 86-1). CODE Services); Hearings from House Audio/Video Intergovern- S.B. 1006 Before the Senate Wiland, 124 S.W.3d. Comm’n, Leg., mental Relations 71st R.S. 2004). (Tex.App. 4, 1989) — Dallas (Apr. (statement Eddie of Sen. Bern- Johnson) (“This legislation ice simply pro- Homar, 924, 928-29, 9. Gilbert v. 520 U.S. vides deputy constables to come into the (1997); S.Ct. 138 L.Ed.2d 120 Cleve civil pro- service Loudermill, gram.”) (transcript land Bd. 470 U.S. available from Senate of Educ. 538-39, Services); Staff see S.Ct. L.Ed.2d Op. Att’y also Tex. Gen. Barton, (1997) (1985); No. 97-016 (noting City section Odessa v. 967 S.W.2d 1998); 158.009 express pur- (Tex. was amended "for the Bexar Sheriff's pose allowing Davis, counties to include Civil Serv. Comm’n v. 802 S.W.2d systems"). constables within their civil 1990). service (Tex. 661 n. 2 Hearings on S.B. 1006 Before the House Wood, 341, 344-45, Bishop 10. See 426 U.S. Comm’n, Leg., (May Affairs 71st R.S. (1976) ("A S.Ct. L.Ed.2d 684 9, 1989); Hearings on S.B. 1006 Before the can, property employment interest in Comm'n, Intergovernmental Senate Relations course, by be created ordinance.... Whether 4, 1989). Leg., (Apr. 71st R.S. guarantee given such a has been can be deter- 14, 1989, R.S., particu- Act Leg., only by 6. mined an of the June 71st examination ch. 3, 3879, § 881 1989 Tex. question.”). Gen. Laws eff. lar statute or ordinance in

364 rules, rules list no ground

In Manual those rules state. The here containing just for dismissal other than for cause. chapter entitled “Dismissals” has six solely procedures, relate sections: five printed in the The disclaimer front (§ 4.21) that employ- and the sixth states change the Manual not this does result. may ees dismissed “for cause.” be First, ever nothing shows the no kind of Manual mentions other disclaimer; adopted only part it is the for eight grounds dismissal. Of the termi- of the Manual our record without an 4.21, in § nation listed constitute seven showing date order number and when (a cause, eighth general and the catch- adopted. This is not matter provision) all be consis- must construed Further, authenticity, validity. but of (as tently If preceding with the seven.11 only employees disclaimer have states County argues) employees can fired no no rights; employees contract but will, something at we must add is not rights property can still contract code, superfluous and render an protected process.15 interest entire section that is.12 deputies’ are Nor claims barred say four-year does term accorded constables While the Manual only cause, Due-process ju- ees can be dismissed Texas Constitution.16 no presume risprudence context makes distinction between here does allow us in a civil nonrenewal general otherwise. rule ser- and termination — property have a interest system vice is not that is at- will, system’s that it in either case.17 As one of is whatever primary purposes rules of civil service is say.13 admitted Thus, prevent every dismissals after much.14 is not that wholesale presumption election, will, implying a term limit frus- employees can fired at but that would very purpose. can be fired for whatever reasons the trate Response Request 14. The Ad- Coop. 11. Hilco Elec. v. Midlothian Butane Gas Co., 75, ("[T]he (Tex.2003) rule 111 S.W.3d No. 4 mission stated: “Defendant admits 'dis- ejusdem generis provides that when ... employees by missal' of Civil general in connec of a nature are used words Service in December be ac- 2000 could objects designation particular tion with the cording Policy to the Administration and Pro- meaning persons things, or classes of cedures Manual.” general will to the words be restricted designation.”). particular ("This Grounds, n. 856 S.W.2d at 420 See fact that despite exists Boerne, City City Antonio San Cf. reemploy- right to contractual teacher no 22, ("It (Tex.2003) is an ele 111 S.W.3d Sindermann, ment.”) Perry U.S. (citing that, mentary possi when of construction rule (1972)). so, 92 S.Ct. every given to ble to do effect must be sentence, clause, word of a statute so CONST, V, superfluous.”). 18(a). part § no thereof be rendered 16. TEX. art. 158.009(5); 13. See TEX. LOC. GOV’TCODE Martin, See, Indep. e.g., Dist. v. Harrah Sch. Dist., Indep. Sch. 856 S.W.2d Grounds v. Tolar 1062, 195, 194, 59 L.Ed.2d 99 S.Ct. 440 U.S. 417, (Tex. 1993) (holding that statute re Sindermann, (1979); Perry 408 U.S. quiring preestablished termi reasons 33 L.Ed.2d 92 S.Ct. contract limited termi nation of teacher's Roth, (1972); Regents v. 408 U.S. Bd. of reasons), superceded those statute nation to (1972). 569-70, 33 L.Ed.2d 548 92 S.Ct. Indep. in Stratton v. Austin Sch. stated Dist., (Tex.App.-Austin 8 S.W.3d pet.). Nothing the Constitution or state law grounds. nate both The Court assists required County grant County by civil eliminating ser- the substantive due process ground County vice But claim on a constables. trial, County never raised giving once the did—and there is no before County a question about that —the second chance to eliminate the County could not ground claim on a impose term limits or grounds termination that was never raised at all. that were not listed its civil service rules. A. Substantive Due Process Damages

III. public employ- The Court concludes that ees have no due-process rights. species Section 1983 “a creates of tort County But the to preserve failed such an liability” in which “the level of argument the trial court. ordinarily according determined princi- ples derived from the common law of County Whether violated section I torts.”18 concede the common law 1983 was decided on cross-motions for probably torts would not all the allow dam- summary judgment. If want- ages jury awarded here. Dallas Coun- ed to ground defend on the that public ty guaranteed never that deputies could employees due-pro- have no substantive jobs,19 work extra so had no property rights, cess that should have been included off-duty interest in income that the Instead, in its motion.21 It was not. Further, should repay. the court ap- County defended this case on the sole peals’ anguish damages review mental ground that the deputies’ terms ended did many not address of the factors both with outgoing Having constable. lost state and federal normally courts consid- issue, on that wrong the Court is to allow er.20 ground. win on different

But deputies proved they were fired argument public employees cause and thus are entitled to have no substantive due-process rights wages lost for both proce- substantive and first surfaced in the sup- second dural due violations. To plemental invalidate motion for new trial —after the claims, wage summary must elimi- judgment, jury after a trial on Stachura, Memphis Cmty. Sch. Dist. v. discretion to constitute a interest. 299, 305-06, U.S. Rock, 106 S.Ct. L.Ed.2d See Castle 545 U.S. 125 S.Ct. (1986) (quoting Carey Piphus, 435 U.S. ("[A] 162 L.Ed.2d 658 benefit is not a 247, 257-58, 98 S.Ct. 55 L.Ed.2d 252 protected government if entitlement officials (1978)). discretion."). may grant deny or it in their 19. See TEX. LOC. GOV’T CODE Brady County, 20. See v. Fort Bend 145 F.3d 158.009(a)(8) (allowing county civil service (5th Cir.1998); City 718-19 Price v. systems prescribe "working conditions of Charlotte, (4th Cir.1996); 93 F.3d MANUAL, C(8.06- employees.”); §§ Giles, Universe Ins. Co. v. 950 S.W.2d Life 8.09); No.2003-1373, 8-5-2003) (requir- Ord. (Tex. 1997); Parkway Woodruff, Co. v. work, ing supervisory approval for such (Tex.1995). 444-45 prohibiting after-hours work "that conflicts county’s public image

with the interest or 166a(c) ("Issues 21. TEX. R. CIV. P. not ex- adversely availability affects his and use- pressly presented to the trial court employee county”). fulness an written to the Al- motion, response though employees answer or other shall not grievance could file supervisor’s approval “unreasonably appeal grounds considered on for rever- withheld,” sal.”). provisions these too much leave 366 yet final had taken

damages, two months after the a constable-elect who not budget- a matter judgment. deputies objected office. Nor was this of argument, constraints, trial ary deputies late of this as several new addition it, take their On County appointed places. court struck and the does not were record, deputies ruling. According- gotten assert that this had the error as to years ly, hearing ago, this six would possibly we cannot reverse on By ground. required to reinstate them. have been hearing, of a depriving deputies Moreover, several federal circuits while County deprived jobs them of their too. rights have due-process denied substantive the deputies Fifth The Court concedes were public employees,22 Circuit they contrary,23 wages prove held to the entitled lost could repeatedly has way no cause for their dismissal. Supreme yet say has one there was Court did today’s says they prove If is But the Court not or the other.24 conclusion that, County’s response to the wrong ultimately despite the Court —if following request that for admission: holds have substan- public process rights deputies tive due —then Request deny you No. 6: Admit or rights of constitutional deprived “just dismissing no Plain- cause” not this Court’s tiffs from their as pre- haste to an issue that was not decide constables that term is used served. Policy and Administration

Procedure Manual. B. Due Process Procedural Response: Defendant admits says The Court were de- decision not to swear Plaintiffs was hearing, jobs. “just of cause”. prived only a not not based unequivocal But the here is record say: response The Court reads of they deprived were both. just cause never “The existence of That, course, recognizes The Court been established.”25 discharged only says. could be for cause. There not what does meaning in this assert such a Court’s evidence record even —the Indeed, whole with- reading were. it is hard to see how is created from cloth possible, discharged any support in the extensive could be out See, See, e.g., Employees Regents Mich. v. e.g., Fed'n Gov’t v. Univ. Am. U.S., 513, (D.C.Cir.2003); 507, 330 523 Sin 88 Ewing, F.3d 474 106 S.Ct. U.S. 419, Cecil, (8th J., gleton (Powell, v. F.3d Cir. (1985) 176 420 concurring); 523 L.Ed.2d Pate, 1550, 1999); McKinney v. 1560 Martin, 20 F.3d Indep. v. 440 U.S. Harrah Sch. Dist. (11th Cir.1994) (en banc); Sutton v. Cleveland 198-99, 1062, 194, 59 248 99 S.Ct. L.Ed.2d (6th Educ., 1339, Bd. F.2d 1350-51 958 (1979) due-process (rejecting Massachusetts, 1992); Cir. Newman because of tenured teach- claim nonrenewal Cir.1989). (1st F.2d arbitrary). contract er’s See, Indep. Fort Sch. e.g., Finch v. Bend 357; see also Brewer 25. 216 S.W.3d at Dist., Cir.2003); (5th 333 F.3d 562-63 Chauvin, (8th Cir.1991) 938 F.2d Walker, (5th Texas v. 142 F.3d Cir. (holding award should “include 1998); Harris, Harrington v. 118 F.3d pay only is a when there full award back (5th Cir.1997); City Beau 368 mont, Moulton v. discharge 1993); finding would not (5th Cir. 991 F.2d Huntsville, procedural due employee’s if the Schaper City F.2d occurred observed”). (5th 1987). rights had been Cir. Moreover, civil reading Arrington’s by giving deputies case briefs. assumes mil- or react to the County gave specifically protection, an answer service $2 revoking it. But judgment lion here prohibited by Rule 198.2: “An assertion did, question that it and that there is request presents an issue for trial these had civil service is not a proper response.”26 terminated without when Under the Texas Rules of Civil Proce- cause 2001. dure, party “specifically must admit or admission, deny” request and its County changed Dallas could have its response fairly “must meet the substance system terminating before request.”27 of the substance deputies; proved these or it could have request Plaintiffs’ was not cause; whether or they were terminated for just cause, decision was based on that, County could have rein- barring County any just but whether had large damages stated the before cause—even if its decision was based on these, County accrued.29 The did none of something By else. assuming County I ought so be held accountable. was “careful” to hide its actual defense respectfully judg- dissent to the Court’s rephrasing question, the Court encour- granting escape ment it a second chance to ages precisely the gamesmanship kind of liability. procedure prohibit.28 rules of

If the wanted to defend on the

theory that the deputies would have been (for anyway

fired unspecified just some

cause), ground should have been dis- closed in discovery and included its mo- DALLAS, COUNTY OF Texas and summary tion for judgment. Because Evans, Derrick Constable not, get should not a sec- 7, Petitioners, Precinct prove ond chance a defense it never

asserted.

As the conceded and the record WALTON, Respondent. Lamar discloses these kept would have No. 04-0631. jobs proper received a hear- ing, they are wages entitled to lost aas Supreme Court of Texas. result. Argued March

IV. Conclusion Decided Feb. guarantee did not have to

its constables continued

ment. It did not Floyd react to 198.2(b).

26. TEX. R. CIV. P. attorney response its the time the made.”). Id. Brady County, 29. See v. Fort Bend 145 F.3d ("When (5th Cir.1998) responding (noting 28. TEX. R. CIV. P. 193.1 discovery, party liability written must make a avoided un- could have for sheriff's complete response, deputies by based on all information constitutional termination of reasonably responding party adopting system). available to the a civil service

Case Details

Case Name: County of Dallas v. Wiland

Court Name: Texas Supreme Court

Date Published: Feb 16, 2007

Citation: 216 S.W.3d 344

Docket Number: 04-0247

Court Abbreviation: Tex.