constables preliminary injunction briefing
TRANSCRIPT
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., §
DALLAS COUNTY CONSTABLE §
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
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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
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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
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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
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TABLE OF AUTHORITIES CON’T
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
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TABLE OF AUTHORITIES CON’T
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
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TABLE OF AUTHORITIES CON’T
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
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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. 3-11CV2233-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
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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
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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
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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).
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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
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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
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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
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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
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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
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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
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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
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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).
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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).
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