Constables Preliminary Injunction Briefing

8/4/2019 Constables Preliminary Injunction Briefing

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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DALLAS COUNTY CONSTABLE §

BETH VILLAREAL, DALLAS §COUNTY CONSTABLE BEN §

ADAMCIK, DALLAS COUNTY §

CONSTABLE ROY WILLIAMS, JR., §


JIM GILLIAND, JOHN DOES, AND §

JANE DOES §

Plaintiffs §

§

vs. § CIVIL ACTION NO. 3:11-cv-02233-F

§

DALLAS COUNTY, DALLAS COUNTY §COMMISSIONERS COURT, CLAY § JURY TRIAL

JENKINS, JOHN WILEY PRICE, § ECF

MAURINE DICKEY, ELBA GARCIA, § PRELIMINARY INJUNCTION

AND MIKE CANTRELL, § BRIEFING

§

Defendants. §

PRELIMINARY INJUNCTION BRIEFING

M. FOREST NELSON

BURT BARR & ASSOCIATES, L.L.P.State Bar No. 14904625

P.O. Box 223667

Dallas, Texas 75222-3667

(214) 943-0012

Telefax: (214) 943-0048

ATTORNEYS FOR PLAINTIFFS

Case 3:11-cv-02233-F Document 36 Filed 09/23/11 Page 1 of 29 PageID 594



TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STANDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CIVIL RIGHTS VIOLATION SUBSTANTIVE AND PROCEDURAL DUE PROCESS. . . . . . 5

RETALIATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

WHISTLEBLOWER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

ii




TABLE OF AUTHORITIES

STATE CASES PAGE

City of Elsa v. Gonzalez ,

325 S.W.3d 622 (Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

County of Dallas v. Wiland ,

216 S.W.3d 344 (Tex. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

DART v. Carr ,

309 S.W.3d 174 (Tex. App. - Dallas 2010, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . 21

State v, Leuck ,

290 S.W.3d 876 (Tex.2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Tex. Dep't of Criminal Justice v. McElyea,239 S.W.3d 842 (Tex. App.-Austin 2007, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Tex. Dep’t of Human Servs. v. Okoli,

317 S.W.3d 800 (Tex. App. - Houston [1 Dist.] 2010, pet. filed). . . . . . . . . . . . . . . . . . 21st

Univ. Of Tex. Southwestern Med. Ctr. v. Gentilello,

317 S.W.3d 865 (Tex. App. - Dallas 2010, pet. filed). . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

FEDERAL CASES

Allen v. Wright ,468 US 737 (1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3

Augustine v. Doe,

740 F.2d 322 (5 Cir.1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10th

Avery v. Homewood City Board of Education,

674 F.2d 337 (5 Cir.1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16th

Brawner v. City of Richardson,

855 F.2d 187 (5 Cir.1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12th

Broadick v. Oklahoma,

413 US 601 (1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

iii




TABLE OF AUTHORITIES CON’T

FEDERAL CASES PAGE

Caine v. Hardy,

943 F.2d 1406 (5 Cir.1991), cert. denied , 503 U.S. 96 (1992). . . . . . . . . . . . . . . . . . . . 11th

Clark County School District v. Breeden,

532 U.S. 268 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Conaway v. Smith,

853 F.2d 789 (10 Cir.1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12th

Eguia v. Tompkins,

756 F.2d 1130 (5 Cir.1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9th

Elk Grove Unified School Dist. v. Newdow,542 US 1 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

Flagg Bros. v. Brooks,

436 U.S. 149 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Fuentes v. Shevin,

407 U.S. 67 (1972).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Givhan v. Western Lines Consol. School Dist.,

439 U.S. 410 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Gonzalez v. Benavides,

712 F.2d 142 (5 Cir.1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12th

Los Angeles v. Lyons,

461 U.S. 95 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Lujan v. Defenders of Wildlife,

504 US 555 (1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3

Markos v. City of Atlanta, Tex.,

364 F.3d 567 (5 Cir.2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11th

Mathews v. Eldrige,

424 U.S. 319 (5 Cir.1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7th

iv





FEDERAL CASES PAGE

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Moore v. Otero,

557 F.2d 435 (5 Cir.1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7th

Moulton v. City of Beaumont,

991 F.2d 227 (5 Cir.1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6th

Mt. Healthy City School Dist. Board of Educ. v. Doyle,

429 U.S. 274 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-15

National Credit Union Admin. v. First Nat’l Bank & Trust Co.,522 US 479 (1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Nixon v. City of Houston,

511 F.3d 494 (5 Cir.2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11th

North Mississippi Communications, Inc. v. Jones,

874 F.2d 1064 (5 Cir. 1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16th

Pershing Park Villas Homeowners Ass’n v. United Pac. Ins. Co.,

219 F.3d 895 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Pickering v. Board of Education,

391 U.S. 563 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Rosenstein v. City of Dallas,

876 F.2d 392 (5 Cir.1989), aff’d, 901 F.2d 61 (5 Cir.),th th

cert. denied , 498 U.S. 855 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

San Francisco County Democratic Cent. Committee v. March Fong Eu,

826 F.2d 814 (9 Cir.1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3th

Schaper v. City of Huntsville,

813 F.2d 709 (5 Cir. 1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8th

v





FEDERAL CASES PAGE

Schultea v. Wood ,

27 F.3d 1112 (5 Cir.1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6th

Scott v. Flowers,

910 F.2d 201 (5 Cir.1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14th

Sherrod v. American Airlines, Inc.,

132 F.3d 1112 (5 Cir.1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13th

Shirley, 970 F.2d at 44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Sprint Communications Co., L.P. v. APCC Services, Inc.,

554 US 269 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Steel Co. v. Citizens for a Better Env’t ,

523 US 83 (1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Sutton v. St. Jude Med. S.C., Inc.,

419 F.3d 568 (6 Cir.2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3th

Valley Forge Christian College v. Americans United for Separation of Church & State, Inc.,

454 US 464 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

Village of Arlington Heights v. Metropolitan Housing Develop. Corp.,429 US 252 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 17

Warth v. Seldin,

422 U.S. 490 (1975).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Wheeler v. Travelers Ins. Co.,

22 F.3d 534 (3 Cir.1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2rd

Whitmore v. Arkansas,

495 US 149 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

vi





STATUTES PAGE

42 U.S.C. § 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

TEX. GOV’T CODE A NN. §554 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

TEX. GOV’T CODE A NN. §554.002(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

TEX. GOV’T CODE Ann. §554.002(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

TEX. GOV’T CODE A NN. §554.035.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

TEX. GOV’T CODE A NN. §554.001(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX. GOV’T CODE A NN. §554.001(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX. GOV’T CODE A NN. §554.001(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX. LOC. GOV’T CODE A NN. § 87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. LOC. GOV’T CODE A NN. § 151.004. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEXAS WHISTLEBLOWER ACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-21

CONSTITUTIONS

U.S. Constitution Article I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 11, 15

U.S. Constitution Article III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

U.S. Constitution Article V .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 14, 16

U.S. Constitution Article XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

vii




UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION


BETH VILLAREAL, DALLAS §COUNTY CONSTABLE BEN §

ADAMCIK, DALLAS COUNTY §

CONSTABLE ROY WILLIAMS, JR., §

JIM GILLIAND, JOHN DOES, AND §

JANE DOES §

Plaintiffs §

§

vs. § CIVIL ACTION NO. 3-11CV2233-F

§

DALLAS COUNTY, DALLAS COUNTY §

COMMISSIONERS COURT, CLAY § JURY TRIALJENKINS, JOHN WILEY PRICE, §

MAURINE DICKEY, ELBA GARCIA, §

AND MIKE CANTRELL, § ECF

Defendants. § BRIEFING

PRELIMINARY INJUNCTION BRIEFING

In its August 30, 2011 order, this Court required the plaintiffs to file comprehensive briefing

on retaliatory discharge and other violations.

At the temporary restraining order hearing, the defendants raised another issue apart from the

violations that the plaintiffs will also address for the Court’s benefit: standing.

STANDING

Standing forms a part of the case-or-controversy requirement in Article III to the U.S.

Constitution. Standing looks to the claims raised by a party. Federal law governs standing, even1 2

See Lujan v. Defenders of Wildlife, 504 US 555 (1992).1

See Allen v. Wright , 468 US 737, 752 (1995).2

PRELIMINARY INJUNCTION BRIEFING- Page 1

F:\Bb\03583.01\Pleading\brief2.wpd




if diversity forms the basis for subject matter jurisdiction.3

Article III has three elements for standing: (1) injury-in-fact, (2) causation, and (3) a

likelihood that a favorable decision will redress the injury. Prudential considerations may also4

affect standing, such as (a) a claim based upon a statute must fall within the zone of interests to be

protected , (b) the plaintiff’s personal rights must be legally affected , and (c) the injury is confined5 6

to a discrete group . Additionally, if any plaintiff has standing, standing will attach to all similarly7

situated co-plaintiffs.8

Injury-in-fact does not require the plaintiff to suffer an actual loss; the plaintiff need only be

threatened with impairment of his/her own interests. Nevertheless, the threatened injury must be9

concrete, distinct, palpable, and not conjectural or hypothetical. Economic injury will provide10 11

Wheeler v. Travelers Ins. Co., 22 F.3d 534, 537 (3 Cir.1994).3 rd

See Sprint Communications Co., L.P. v. APCC Services, Inc. , 554 US 269, 2744

(2008).

See National Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 US 479, 4885

(1998).

See Elk Grove Unified School Dist. v. Newdow, 542 US 1, 14 (2004).6

Valley Forge Christian College v. Americans United for Separation of Church &7

State, Inc., 454 US 464, 474-75 (1984).

Village of Arlington Heights v. Metropolitan Housing Develop. Corp., 429 US 252,8

264 (1977).

Whitmore v. Arkansas, 495 US 149, 156 (1990).9

Warth v. Seldin, 422 U.S. 490, 501 (1975).10

Los Angeles v. Lyons, 461 U.S. 95, 101-102 (1983).11






standing even if the loss did not give rise to prudential standing. A risk of future injury can also12

establish injury-in-fact, as will a denial of First Amendment rights.13 14

When a party seeks prospective injunctive relief a real and immediate threatened injury must

exist to create standing. Here, the plaintiffs have shown that the termination of their employment15

and downsizing of their offices not only was real and imminent, it occurred pursuant to the GPS

investigation and it will occur again for 84 percent of the constables’ staff absent injunctive relief.

Indeed, the county’s human resources director sent an e-mail to each constable - days before the

Commissioners Court was scheduled to vote on the budget that would effectively eradicate the

constables’ staff - requesting times for the constables to meet with the director the day after the order

was passed to discuss terminations of staff and transfer of core duties to the sheriff’s department.16

The plaintiffs have shown injury-in-fact.

The causation element requires a link between the injury-in-fact and the complained of

conduct. The Commissioners Court sought to employ the budget process as a means to terminate17

Pershing Park Villas Homeowners Ass’n v. United Pac. Ins. Co., 219 F.3d 895, 90212

fn.4 (2000) (even though the insurance carrier had no duty to pay the ultimate default judgment its

withdrawal of a defense led to the default judgment and would create standing for the insured on a

good faith and fair dealing statutory claim regarding the withdrawal).

See Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 571 (6 Cir.2005) (implant of 13 th

allegedly defective medical device created standing even though device had no malfunctioned).

See San Francisco County Democratic Cent. Committee v. March Fong Eu, 826 F.2d14

814, 824 (9 Cir.1987) (argument that statute could not be challenged until violated rejected asth

plaintiffs had standing to bring claim for infringing First Amendment rights.)

Lujan, 504 US at 560.15

See Steel Co. v. Citizens for a Better Env’t , 523 US 83, 109 (1998).16

Allen, 468 US 757.17






the vast majority of the constables’ staff because members of the staff had reported potential criminal

conduct by two constables and a county commissioner and because two constables had refused to

deny due process rights to deputy constables ordered terminated by the commissioners court for

allegedly violating the county’s GPS policies. Using the budget process to wrongfully terminate18

constable staff and unlawfully transfer core duties from the elected constables to the sheriff’s

department satisfies this element. A causal link exists in this case.

Plaintiffs have also satisfied the final element: relief likely to redress injury. By entering a

preliminary injunction that bars the commissioners court from passing a budget item that would

eviscerate the constables’ staff and violate statutory law that precludes the transfer of an elected

official’s core functions, this Court will prevent the transfer of the constable’s core duties to the

sheriff’s department in violation of applicable law and the wholesale termination of constables’ staff.

The relief will preserve certain plaintiff’s jobs and the constables’ statutory core duties.

The prudential consideration of “zone of interests” normally turns on whether the plaintiff’s

claim speaks to the denial of the plaintiff’s protected constitutional rights. But in the context of a

First Amendment right, the Courts have relaxed the standard for plaintiffs “not because their own

rights of free expression are violated, but because of a judicial prediction or assumption that the

statute’s [complained of conduct’s] very existence may cause others not before the court to refrain

from constitutionally protected speech or expression.” Broadick v. Oklahoma, 413 US 601, 612

(1973). The plaintiff’s claims also speak to their Fourteenth Amendment procedural and substantive

due process rights as well as the First Amendment rights of all other county employees to report

Compare TEX. LOC. GOV’T CODE A NN. § 151.004 (a commissioners court and its18

members may not attempt to influence the appointment of a budgeted constable employee).






improper conduct to appropriate law enforcement authorities without the specter of retaliation. The

budget process should not serve to silence grievances.

Plaintiffs can also satisfy the prudential consideration of injury to one’s own legal rights and

interests. In this case, the constable staff plaintiffs were losing their jobs, health benefits, accrued

seniority, and the ability to maintain their peace officer status. The constables were losing staff and

their core duties. This is not a case of only preserving legal rights for third persons; accordingly,19

plaintiffs have satisfied this prudential consideration.

This case does not present an abstract question amounting to generalized grievances. This20

case concerns the loss of jobs and core duties by Dallas County constables and their staff. By

confining the injuries to a discrete group, the plaintiffs have satisfied the final prudential

consideration, injury confined to a discrete group.

Plaintiffs can, and have, satisfied all the elements for standing in federal court.

CIVIL RIGHTS VIOLATION

SUBSTANTIVE AND PROCEDURAL DUE PROCESS

For deprivation of a constitutional right under 42 U.S.C. § 1983, a claimant must show (1)

a deprivation of a right secured by the Constitution or federal law and (2) that the deprivation

occurred under color of state law.21

To prevail on a substantive due process claim, a claimant must further show (1) he/she had

a property interest/right in employment and (2) that the termination of that interest was arbitrary and

See Elk Grove, 542 US 1 (father lacked standing to challenge school policy that19

required daughter to say pledge of allegiance).

Valley Forge, 454 US at 474-75.20

See Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978).21






capricious.22

To prevail on a claim based upon denial of substantive due process, the public employee has

to show an established property interest in his/her employment. Because Texas is an employment-23

at-will state, a Texas government employee has to point to a contract or policy that refutes the

employment-at-will presumption, for a property-interest to accrue. Here, the defendants have24

acknowledged that those constable deputies and staff who were hired before August 19, 2003,

receive the benefits of the Dallas County Sheriff Department’s written civil service program. The

Texas Supreme Court has already held that the Sheriff Department’s civil service program creates

a property right in continued employment. Accordingly, those deputies and staff members that fall25

within the civil service system can only be terminated for cause because they have a vested property

interest in their jobs. No one can capriciously or arbitrarily effectuate the termination of those civil

servant staff members, directly or indirectly.26

Coverage by the sheriff’s civil service system creates a property interest in the constables’

staff, per the Wiland opinion. The defendants, moreoever, acknowledged the deputies’ property

interests and due process rights in a December 7, 2010 letter they sent to Constable Villareal. In that

letter, the commissioners court advised Constable Villareal that if she refused to swear in any deputy

on January 1, 2011, that it would violate a deputy’s civil rights under 42 U.S.C. § 1983 and would

Moulton v. City of Beaumont, 991 F.2d 227, 230 (5 Cir.1993). 22 th

Id.23

Id.24

County of Dallas v. Wiland , 216 S.W.3d 344, 354 (Tex. 2007).25

Schultea v. Wood , 27 F.3d 1112, 1116 (5 Cir.1994).26 th






subject her to personal liability. The letter went on to state the Constable Villareal potentially faced

removal from office for incompetence under Chapter 87 of the Texas Local Government Code if she

terminated a deputy without due process.

Procedural due process has two elements: (1) a protected property or liberty interest, and (2)

meaningful notice and an opportunity to be heard at a meaningful time and in a meaningful manner.27

Courts have held that the following conduct constitutes a denial of a liberty interest:

1. Discharge of an employee for alleged wrongful conduct without affording the

employee a reasonable opportunity to clear his/her name or 28

2. A demotion that is the equivalent to a loss of employment;29

The commissioners court’s conduct regarding the termination of the GPS implicated deputies

bespeaks the denial of procedural due process. For the GPS audit terminations, the constables were

advised of incomplete audit findings at a meeting on May 12, 2011. At that meeting, the constables

were advised that the commissioners court expected the following course of conduct:

(1) no formal employment-based complaint would be filed

against any of the implicated deputies;

(2) the constables were to immediately return to their offices and place the

implicated deputies on administrative leave for forty-eight hours;

(3) there would be no independent investigation of the preliminary audit report

Mathews v. Eldrige, 424 U.S. 319, 333 (5 Cir.1995).27 th

See Rosenstein v. City of Dallas, 876 F.2d 392, 395 (5 Cir.1989), aff’d, 901 F.2d 6128 th

(5 Cir.) (en banc), cert. denied , 498 U.S. 855 (1990).th

See Moore v. Otero, 557 F.2d 435, 437-38 (5 Cir.1977).29 th






findings;

(4) each implicated deputy was to be given 48 hours to sign an allegation

document prepared by the district attorney acknowledging his/her wrongful

conduct - notwithstanding their Fifth Amendment rights;

(5) the implicated deputies were to be terminated after the 48 hour period

regardless of what evidence they presented refuting the preliminary audit

findings;

(6) there would be no pretermination hearings;30

(7) members of the commissioners court would sit as the civil service grievance

panel for the posttermination hearings; and

(8) the implicated deputies were to be advised that they would probably be

prosecuted for aggravated perjury.

The commissioners court gave the implicated GPS deputies no opportunity to respond to the

substance of the allegations against them before termination; indeed, the commissioners court31

expected the implicated officers to waive their Fifth Amendment rights as part of the accelerated

termination procedure. And when select constables questioned the process and the deputies’ right

to due process, they were promised eradication through the budget process by the commissioners

court.

No countervailing fact warranted the denial of due process by the commissioners court in the

See Schaper v. City of Huntsville, 813 F.2d 709, 714-15 (5 Cir. 1987)30 th

See Fuentes v. Shevin, 407 U.S. 67 (1972).31






GPS investigation or the budget process. As the county auditor testified, the commissioners court32

could have waited until the final audit report was issued on May 21, 2011, and then allowed the 30

day response period with a potential 30 day extension - which was routinely given by the county

auditor in responding to investigations - before the court or the constables took any action.

A similar rushed fact pattern occurred in the budget process. From December 2010 through

early August 2011, projected budgetary terminations were limited to 20 constables and 10 sheriffs

in the warrant departments. On August 19, 2011, the county’s budget director advised the constables

that a briefing statement would be presented to the commissioners court on August 23, 2011, for a

vote on August 30, 2011. That briefing statement called for the termination of almost 84 percent of

the constables’ staff by the end of the first quarter of the 2012 fiscal year, to wit, January 1, 2012.

The constables were basically given the weekend of August 20 and 21, 2011 to come up with an

alternative budget that the commissioners court would summarily reject out-of-hand. As testified

to by the county’s budget director, the constable’s alternative budget was rejected even though it

would have satisfied any projected budget shortfall for the constables. The shortfall would have

been offset by monies given the county treasurer from forfeiture fund accounts controlled by the

constables. The budget director rejected the constables’ budget proposal because the proposal did

not specify to which specific constable expense accounts the forfeiture funds were to be allocated.

Absent a specified allocation in the budget proposal; the budget director testified he did not know

where to apply the funds. The budget director never conveyed this avowed shortcoming to the

constables.

See Eguia v. Tompkins, 756 F.2d 1130 (5 Cir.1985).32 th






Finally, as the county auditor testified, in her opinion, there was no budgetary purpose for

transferring the service of civil documents function from the constables to the sheriff. Nothing,

moreover, precluded the commissioners court from having a pilot program with the sheriff’s

department to compare the constable’s service capabilities with that of the sheriff’s department

before a wholesale eradication of the constables’ staff occurred. The budget process also did not

reflect reasonable procedural due process.

Any argument that denial of substantive due process rights can be remedied by affording

certain procedural due process rights or by requiring the claimant to exhaust state remedies will fail.

As Judge Wisdom stated in Augustine v. Doe, 740 F.2d 322 (5 Cir.1984):th

In contrast, when a plaintiff alleges that state action has violated an

independent substantive right, he asserts that the action itself is

unconstitutional. If so, his rights are violated no matter what process

precedes, accompanies, or follows the unconstitutional action. The

availability of notice and a hearing is therefore irrelevant; ...

Id. at 326-27.

The defendants capriciously denied the constable staff of their substantive due process rights

to a job in the GPS investigation and the budget process. They also failed to afford the plaintiffs

their procedural due process rights in the GPS investigation and the budget process. These denials

of constitutional rights permits injunctive relief under the civil rights act.

RETALIATION

A claim of constitutional rights retaliation has four elements:

1) the employee was subject to an adverse employment action;

2) the employee was speaking as a citizen on a matter of public concern;

3) the employee’s interest in commenting on the matter of public concern






outweighed the employer’s interest in promoting efficiency; and

4. The employee’s speech was a substantial or motivating factor behind the

employer’s action.33

No one can dispute that termination constitutes an adverse employment action or that the

transfer of core functions adversely affects a constable’s employment. The second and third

elements look to whether the claimant engaged in a protected constitutional right. This element

presents a question of law for the court. The First Amendment right to free speech applies to a34

private, as well as a public expression, by a governmental employee. In determining whether the35

free speech right attaches to a government employee’s statement, the court must balance “the

interests of the [employee], as a citizen, in commenting upon matters of public concern” against the

“the interests of the State, as an employer, in promoting the efficiency of the public services it

performs through its employees.” Pickering v. Board of Education, 391 U.S. 563, 568 (1981).

Pickering presents a two-step inquiry: (1) does the speech address a “matter of legitimate

concern” for the public and (2) does the speaker’s first amendment rights outweigh the36

government’s interest in promoting efficient performance. This balancing of interests has a four-

point framework: “first, whether the working relationship between the employer and the employee

was of such a personal and intimate nature that any public criticism would seriously undermine the

Nixon v. City of Houston , 511 F.3d 494, 497 (5 Cir.2007); Markos v. City of Atlanta,33 th

Tex., 364 F.3d 567, 570 (5 Cir.2004).th

See Caine v. Hardy, 943 F.2d 1406, 1415 (5 Cir.1991)(en banc), cert. denied , 50334 th

U.S. 96 (1992).

Givhan v. Western Lines Consol. School Dist., 439 U.S. 410, 414 (1979);35

Pickering, 391 U.S. at 571.36






effectiveness of the working relationship; second, whether the statements were true, false or made

with reckless disregard for the truth; third, whether the statements undermined the general

effectiveness of the work group; and fourth, whether the statements were only critical of policy.”37

A balancing of these interest demonstrates that a public employee’s reports of wrongful conduct by

government officials as well as an elected official’s reporting to the media of another elected

official’s failure to afford due process rights to public employees constitute protected free speech.38

When the constables staff reported crime to law enforcement and select constables declared

in the media the need for due process rights, the Pickering balancing test fulcrum tilted in their

favor. The working relationship between the commissioners court and the constables and their staff 39

were not of such a personal and intimate nature that any public criticism would seriously undermine

the effectiveness of their working relationship. Neither the constables nor their staff were county

executive officers serving at the prerogative of the commissioners court. The commissioners court

could not terminate the duly elected constables; and the court could only indirectly terminate the

constables’ staff through the budget process.

Next, the reports of wrongful conduct by the constable deputies led to the indictment of two

constables and the select constable’s speaking out for the due process rights of their deputies led to

the exoneration of certain deputies implicated in the GPS audit report. Therefor, the statements in

issue apparently were neither false nor made with reckless disregard for the truth. Moreover, the

Gonzalez v. Benavides, 712 F.2d 142, 146 (5 Cir.1983).37 th

Id.38

See Brawner v. City of Richardson, 855 F.2d 187, 191 (5 Cir.1988); Conaway v.39 th

Smith, 853 F.2d 789, 796 (10 Cir.1988) (speech that discloses evidence of corruption, impropriety,th

or other malfeasance by governmental officials clearly concerns matters of public import).






statements did not undermine the general effectiveness of the constables and their staff because it

exposed wrongful conduct and preserved the due process rights of the constable’s staff.

Finally, the statements were not just critical of policy. The statements exposed wrongful

conduct and preserved fundamental due process rights of the constable’s staff. A balancing of the

interests in this case favors the constables and their staffs’ comments on matters of public concern,

as the county promotes no efficiency of public services by stifling the reporting of wrongful conduct

by county officials or the preservation of due process rights afforded public employees. The

statements by the constables’ staff and the select constables merit First Amendment free speech

protection under elements two and three.

Element four has shifting burdens of proof. In Mt. Healthy City School Dist. Board of Educ.

v. Doyle, 429 U.S. 274 (1977), the Supreme Court set forth the shifting burden of proof framework

for the causal link element of a retaliation claim based upon a constitutional right :40

Initially, in this case, the burden was properly placed upon respondent

to show that his conduct was constitutionally protected, and that this

conduct was a "substantial factor" - or, to put it in other words, that

it was a "motivating factor" in the Board's decision not to rehire him.Respondent having carried that burden, however, the District Court

should have gone on to determine whether the Board had shown by

a preponderance of the evidence that it would have reached the same

decision as to respondent's re-employment even in the absence of the

protected conduct.

Id. at 287.

Note that the rationale for the Mt. Healthy opinion does not appear to apply to all the rights

The Fifth Circuit has rejected the application of the McDonnell Douglas Corp. v.40

Green, 411 U.S. 792 (1973) framework for unlawful retaliation claims under the ADA and ADEA.

Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1121-22 (5 Cir.1998).th






sought to be protected by the plaintiffs in this case. In Mt. Healthy, the Supreme Court focused on

the fact that the complainant was an employee at will, but if the complainant prevailed, he would

become a tenured employee with substantive due process rights. The Court had concerns that a

claimant would use a constitutional protected act to obtain rights not otherwise available. Such is

not the case here, the plaintiffs’ exercise of their constitutional rights placed them in a worse position

than if they had not exercised those rights. By exercising their right to report wrongful conduct to

law enforcement, the plaintiffs had their due process rights, substantive and procedural, denied them;

faced summary termination on 48 hours notice; and were required to sign an allegation document

that arguably sought a waiver of their Fifth Amendment rights. And when select constables

exercised their constitutional right to voice the rights of their deputies to due process in the media,

the commissioners court threatened, and came through with, a budget that would reduce the

constables to a skeleton staff and lead to the wholesale termination of almost 84 percent of the

constables’ staff.

For those constable staff plaintiffs seeking preservation of substantive due process rights they

already held, they will not be placed in a better position than they otherwise would have occupied

absent the relief. Like reasoning would obtain for the constables that exercised their first41

amendment free speech rights to preserve due process rights already held by their staff. Accordingly,

the causal link for these already held due process rights and the free speech rights exercised to

preserve those already held rights cannot be defeated once the plaintiffs show the protected conduct

was a motivating factor for the defendants’ conduct. A showing by the defendants that they would42

Scott v. Flowers, 910 F.2d 201, 210 (5 Cir.1990).41 th

Id.42






have reached the same termination decision even in the absence of the protected conduct is of no

moment for rights already held by the constables’ staff.

The Supreme Court amplified its description of the Mt. Healthy “motivating factor” burden

for the claimant, in Price Waterhouse v. Hopkins :43

Each time, we have concluded that the plaintiff who shows that an

impermissible motive played a motivating part in an adverse

employment decision has thereby placed upon the defendant the

burden to show that it would have made the same decision in the

absence of the unlawful motive. Our decision today treads this well-

worn path.

In saying that gender played a motivating part in an employment

decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful

response, one of those reasons would be that the applicant or

employee was a woman.

Id. at 250. A truthful response from the defendants in this case, would be that select constables’ and

the deputies’ exercise of First Amendment and Fourteenth Amendment rights was one reason for a

budget that eliminated 84 percent of the constables’ staff.

Once the claimant satisfies the motivating factor burden of proof, the burden shifts to the

defendant “to prove by a preponderance of the evidence that it would have made the same decision

in the absence of the protected conduct”, if the defendant is to defeat the causal link element. A44

defendant’s presentation of evidence for a legitimate reason that is just as persuasive as the claimants

will not suffice; nor will a defense showing of a legitimate reason that is just as likely as the45

490 U.S. 228 (1989).43

North Mississippi Communications, Inc. v. Jones, 874 F.2d 1064, 1068 (5 Cir. 1989)44 th

Avery v. Homewood City Board of Education, 674 F.2d 337, 340 (5 Cir.1982).45 th






claimants’ reason for the complained of conduct. Because there can be multiple “substantial46

factors” in a defendant’s decision, a defendant will not discharge its burden of proof by establishing

a “substantial factor” other than the one shown by the claimant.47

The defendants cannot satisfy their burden of proof by simply showing an avowed budgetary

basis for the wholesale termination of the constables’ staff. Nor can they do it by showing an

incomplete, inconclusive audit report as a basis for the termination of constable deputies without due

process and without preservation of Fifth Amendment rights. To satisfy its burden of proof, the

defendants have to show by a preponderance of the evidence that they would have terminated the

constables’ staff even if constable staff had not reported wrongful conduct by county officials to law

enforcement and even if select constables and constable staff had not requested the due process

rights afforded them under the Constitution.

A claimant can satisfy the “motivating factor” component of the causal link element with

evidence of timing, hostility, and admissions relating to motivation for the defendants’ conduct. 48

No one factor controls. Timing proximity, for example, will not conclusively refute the causal link

element. A 14-month period between the protected activity and the alleged retaliatory action49 50

when coupled with other factors will support a causal link finding.

North Mississippi, 874 F.2d at 1069.46

Avery, 674 F.2d at 341.47

Id. at 1068.48

The one exception to this rule occurs when the protected activity occurs after the49

adverse action. See Clark County School District v. Breeden, 532 U.S. 268 (2001). This exception

does not apply in this action.

Shirley, 970 F.2d at 44.50






In Village of Arlington Heights, the Supreme Court posited several evidentiary sources for

retaliatory claims based on constitutional violations: (1) the impact of the action, i.e., whether it

bears more heavily on one group than another; (2) the historical background of the action,

particularly if a series of actions have been taken for invidious purposes; (3) the specific sequence

of events leading up to the challenged action; (4) any procedural departures from the normal

procedural sequence; (5) any substantive departures from normal procedure, i.e., whether factors

normally considered important by the decisionmaker strongly favor a decision contrary to the one

reached; and (6) the legislative history, especially where contemporary statements by members of

the decisionmaking body exist. 429 U.S. at 266-68.

If one considers these six sources, one finds that the evidence supports a retaliatory causal

link. First, the budget bears more heavily on the constables and constables’ staff that exercised their

first amendment rights. On the second and third sources, the time line of events demonstrates

invidious purposes: the deputies gave their statements to law enforcement in the summer of 2010;

Constable Evans was indicted in early December 2010; Evans requested an audit of the GPS units

in late December 2010; the audit began in January 2011; the preliminary GPS audit report was first

discussed on May 12, 2011, at which time the constables were directed by the commissioners court

to terminate the implicated deputies without due process, in 48 hours; Jenkins and Price appeared

before multiple media outlets on May 13, 2011, stating the county would be terminating the

implicated officers immediately; after the media blitz, select constables refused to terminate the

implicated deputies without due process; the commissioners court members met with the constables

on May 21, 2011, and directed the constables to terminate the implicated constables without due

process or face termination of staff through the budget process - select members of the






commissioners confirm this threat/promise in the media; select constables and the county audit

department then cleared certain of the implicated constables after an investigation; and on August

19, 2011, the budget office advised the constables that the budget had been modified from the prior

seven months representations to include a termination of 84 percent of the constables’ staff and a

transfer of the constables’ core functions to the sheriff’s department and that the commissioners

court will vote on this change on August the 30, 2011.

The fourth source also favors the plaintiffs’ position, as the commissioners court readily

departed from the civil service system in place and basic concepts of procedural due process for the

GPS audit based terminations. The commissioners court called for the summary termination of all

implicated deputies or face wholesale termination through the budget process. There were no factors

that warranted substantive departures from normal procedure for the termination of deputies

implicated in the GPS Audit. Indeed, the factors of a questionably reliable GPS monitoring system

and google map supporting documentation should have favored a decision contrary to the one

reached by the commissioners court. Even the County Auditor would have given the implicated

deputies at least a 30 day period to respond to the accusations in the audit report, once completed and

issued. Evidentiary sources support retaliation.

One can readily demonstrate the causal link between a GPS audit initiated by a constable that

just days earlier had been indicted because of statements given by deputy constables to law

enforcement and the summary termination of more than 30 deputy constables based upon an

incomplete, uncontested, flawed GPS audit. The link can also be readily drawn between the

termination of 84 percent of the constables’ staff through the budget process after select constables

refused the commissioners court’s demands to deny due process to the deputies implicated in the






GPS audit, at the threatened risk of budgetary retaliation. The termination of more than 90 percent

of staff positions through the GPS investigation and budget process reflects a retaliation sufficient

to keep the constables’ staff and the constables from exercising their constitutional rights, which

meets the fourth causal link element showing.

By their conduct, the commissioners court sought to preempt free speech. And because select

constables sought through their free speech to preserve the deputies’ due process rights, the

constables paid with eradication of their staff through the budget process, as threatened and promised

by select members of the commissioners court. The retaliation claims will also independently

support injunctive relief.

WHISTLEBLOWER

Chapter 554 of the Texas Government Code contains the Texas Whistleblower Act. The act

begins by defining three terms that apply in this case.

Tex. Gov’t Code §554.001(1-3)

(1) “Law” means:

(A) a state or federal statute;

(B) an ordinance of a local governmental entity; or

(C) a rule adopted under a statute or ordinance.

(2) “Local government” means:

(A) a county ...

(3) “Public employee” means a person other than an independent contractor who, for

compensation, performs services for a state or local governmental body under a written or

oral contract.






The county would be a “local government.” The constables’ staff would be public employees that

perform services for local governmental body. Finally, state and federal criminal statutes would be

a “law.”

The Whistleblower Act prevents a local governmental entity from suspending or terminating

the employment of a public employee, “who in good faith reports a violation of law by the

employing governmental entity or other public employee to an appropriate law enforcement

authority.” TEX. GOV’T CODE A NN. §554.002(a). An appropriate law enforcement authority is a

part of a federal, state or local governmental entity that a public employee in good faith believes is

authorized to: (1) regulate under or enforce the law alleged to be violated in the report; or (2)

investigate or prosecute a violation of criminal law. TEX. GOV’T CODE Ann. §554.002(b).

A violation of Chapter 554 permits a public employee to sue the local governmental entity

for relief afforded under the Act. The local government entity statutorily waives immunity for relief

allowed for a violation of this chapter. TEX. GOV’T CODE A NN. §554.035. There are two

jurisdictional requirements under section 554.035. The plaintiff must: (1) be a public employee; and

(2) allege a violation of Chapter 554.

As defined, the constable deputies would satisfy the first requirement of public employee

status for the whistleblower. Section 554.002(a)’s elements will determine the second requirement

of jurisdiction as well as liability; namely, did the public employee (1) make a good faith report of

a violation of law; and (2) make the report to an appropriate law enforcement authority.

On the first element, a plaintiff does not have to identify a specific law when making the






report or establish an actual violation of law, but there has to be some law prohibiting the51

complained of conduct to state a Whistleblower Act claim. Otherwise, “any complaint, grievance

or misconduct could support a claim.” DART v. Carr ; 309 S.W.3d 174, 177 (Tex. App. - Dallas

2010, pet. denied). The constables reporting of wrongful conduct by county officials evidently

invoked a law prohibiting the complained of conduct as evidenced by the indictment of Constables

Evans and Cortes. Reporting criminal conduct that leads to criminal investigations and criminal

indictments necessarily implicate a law prohibiting the complained of conduct.

The “good faith” looks to whether the reporting public employee believed that he or she was

reporting conduct that violated the law. The belief must be reasonable based on the public

employee’s experience and training. Considering that the reporting public employees in this case52

were licensed peace officers, their belief that the reported conduct violated law came from a

reasonable belief.

The appropriate authority factor looks to whether the authority regulates or enforces the law

alleged to have been violated and whether the authority investigates or prosecutes a violation of

criminal law? Reporting violations to the police, the FBI, the district attorney, grand juries, and

private investigators retained by the county to file investigative reports with appropriate law

enforcement such as the FBI and district attorney would satisfy the Act’s appropriate authority

provision. Whereas, reporting noncompliance with a federal regulation to a supervisor or a head53

Tex. Dep't of Criminal Justice v. McElyea, 239 S.W.3d 842, 849 (Tex. App.-Austin51

2007, pet. denied).

City of Elsa v. Gonzalez, 325 S.W.3d 622, 626 (Tex. 2010).52

Compare Tex. Dep’t of Human Servs. v. Okoli; 317 S.W.3d 800 (Tex. App. - Houston53

[1 Dist.] 2010, pet. filed).st






of division at the Texas Department of Transportation would not. By the same token, an employee54

that reports a violation of law to his employer or superior does not automatically render the

Whistleblower Act inapplicable. One has to analyze the facts on a case-by-case basis.55

Respectfully submitted,

BURT BARR & ASSOCIATES, L.L.P.

By: /s/ M. Forest Nelson

M. FOREST NELSON

SBN: 14904625

P. O. BOX 223667

DALLAS, TEXAS 75222-3667

(214) 943-0012

(214) 943-0048 FACSIMILE

ATTORNEYS FOR PLAINTIFFS DALLAS COUNTY

CONSTABLE BETH VILLAREAL, DALLAS COUNTY

CONSTABLE BEN ADAMCIK, DALLAS COUNTY

CONSTABLE ROY WILLIAMS, JR., DALLAS COUNTY

CONSTABLE JIM GILLIAND, JOHN DOES, AND JANE

DOES

CERTIFICATE OF SERVICE

On September 23, 2011, I electronically submitted the foregoing document with the clerk of the U.S. District Court, Northern District of Texas, using the electronic case filing system of the

Court. I hereby certify that I have served all counsel and/or pro se parties of record electronically

or by another manner authorized by Federal Rule of Civil Procedure 5(b)(2).

/s/ M. Forest Nelson

M. Forest Nelson

State v, Leuck , 290 S.W.3d 876 (Tex.2009).54

Univ. Of Tex. Southwestern Med. Ctr. v. Gentilello, 317 S.W.3d 865 (Tex. App. -55

Dallas 2010, pet. filed).




Documents

Constables Preliminary Injunction Briefing