two texas rangers a number of other police officers as well as the defendant we have a case where the trial found that i had a policy maker found that there had been constitutional damages it's one of the most egregious cases i've been this is my th decade at this court in m can honestly say without hyperbole that it's one of the most egregious facts situations that under the same i don't have a policy according to the trial court and i think unfortunately what that does is sort of creates an issue  i'm reminded of the start law and in this case i'm afraid that that's exactly what's going to happen they are not looking for for over regulation of both cities as  their agencies or under regulation the city's as a major agencies but here we have a case where don't ask don't tell became the policy in madisonville the policy is that the we had to police change to new  that there was reason to believe that jeff covington who ascended to a position of being in charge of of all the confidential informants canine drug corps and the patrol officers in that small city was well known to be in a hostile situation with wife and it was his ex wife that it was also well know that he was at least a box the police officers and shared with with police chiefs that he was trying to set her up to get custody of the children to stand correctly there are five police officers in this police department and they have a record  gift horse in the mouth of the texas or as law enforcement officer regulations now it's three things that it basically looks for thirty coal used to be too close not to council points out he was only doing a group i don't know why he was bowing the rules out sociopathic in my mind it's a mason and especially when you're brought in to be a police officer good case for the court this is a case instead of my usual prolixity and and let's just simply say that i think the case should be reversed because i think i pled causation and i think up lead policy and  seized an extremely i thought interesting and spiritual verdict in that particular case the confidential informant who who planted the drugs was not found liable the jeff covington and the other police off six police officer world i thought it was a fair verdict i think that the only missing party and of course we it at that point in time the two police chiefs testified we had the district attorney testify i think that the only missing party was the city council was unable to be there because he was involved in the truong could you tell us specifically what policy or policies you identify in the complaint are the mended complaint that because this is a twelve b sixty seven right this case was dismissed on a motion to dismiss than five and more five than there were two but then the nd thing is i think that there was a bit of toleration by both police chiefs because of the silence of the policy of the department well we'll just not look a gift horse in the mouth who will just keep about jeff covington's being fired by the at the instance of the united states army is employer couldn't hardly overlook that but now records we did something that that used to be pretty routine calling references and i'm apparently that was not important  all right so so i feel like that that we're that we've got that the case should be reversed and i think that it should go back and we should we should determine have the opportunity to determine whether or not in fact this is the morning it please the court will you know if i'm for the city of madison the basic incurable infirmity in the appellants position as it relates to the city is that by her own pleading allegations what this covington is complaining of is an act by her husband outside of his role as a police officer however co opting goes he knew the virtue of his law enforcement relationships to do something to his then wife now ex wife and that's why the trial court said at one thousand and ten dollars of the record in light of brown vs bryant county quote there can be no inference of a causal link between the city's hiring and supervision practices practices and supervision process and covington's misdeeds and to judge engelhard question the actual policy is never stated in the brief nor is it stated in the complaint other than to say that the police department improperly supervises in a general sense and in at to just it to judge grave question is neg improperly hard fact on page twenty five it says the city failed to screen but that's not the factual allegation and in fact what judge harmon sought and i think is laid bare by the pleadings here is ms covington was the victim of her then husband's misconduct she was appropriately angry among other motions to be sure and she had every reason to be angry with mr covington and then it looks like what let me ask you could you say that she's a victim of her husband's misconduct it seems to me that he has in his capacity as a law enforcement officer he has obtained contraband he has instructed someone who he's connected to only through his law enforcement position to plant contraband and then he's also instructing officers that you need to check her out you need to do a stop and search on her vehicle in fact i think it the allegation is that he had had it done once suggested one of his colleagues do it once and didn't he didn't find it much to the dismay of the husband  you say but he's more than a husband in this case i mean he's he's he's acting in his official capacity and using the resources of the police department isn't he though i think he's i don't think he's acting in his official capacity in a he is using resources he's gleaned from his official capacity work for the police department but he's not working for the police department he's not operating under the color of the law that is vested of the state of texas vested in him b commission by the police department what he's what he did and we know what we did he co opted relationships that he that he had garnered through his law enforcement activities and that's really i think why the trial court made it clear that while it agreed that mr covington had acted inappropriately and it acknowledged that the allegations made out claims against mr covington and to the extent that he co opted others to have his wife  arrested well of course based upon that effort whether he was acting as a private citizen or a public official he can be liable under section one hundred and eighty three dollars and a given tain that that all of this was done without the knowledge of the the two i think there's two clinton is one and then the chief may i believe that all of this was done unbeknownst to them or had they in any way been advised that he was having difficulties and utilizing the police department resources and connections the answer to question your honour's absolutely done without the knowledge of the police department's super supervisors and in fact the plaintiffs doesn't allege that the chief at the time was aware that mr covington was doing any of these things or attempting to do any of these things including recommending that other officers stop it wife and and and search your vehicle obviously that that alone is an odd thing but if if he if she truly had been hypothetically carrying drugs and he turned another police officer on to that that might be something that might be discussed but there's no allegation and it would be a false allegation to suggest that any having a very acrimonious divorce the chief did know of an allegation of a use of domestic violence forced by mr covington in the home but i don't believe that there's any allegation in the complaint that the chief was again the point here is the problem with these two allegations is they're back to and this is where i was going earlier when i stopped if your question judging the heart is what happened was miss covington said well look at my husband's done and then the question was how could we hold the city responsible for that it's not that someone can demonstrate a line between hiring this man and planting drugs on his wife and yet that is what's required by this circuit's president precedent in controlling supreme court authority it is not as if someone can draw a line between how the gentleman gentlemen might be too generous a term at this point but how mr covington was supervised as a law enforcement officer and what he did outside of his role as a police officer to harm his wife and their not only does the brief completely drop off the cliff but it's as does the complaint but with respect to my my friend mr watts so does his argument he hasn't yet told the court what is that line that the trial court demonstrated fails to exist between an alleged decision to hire which was wrongful and or an alleged improper supervision that then was the moving force behind mr covington planting drugs on his wife if we were to accept that those facts why wouldn't we and eighty three claim against a department of public works employee who meets people who can set up his wife and get drugs from a police officer in the department why wouldn't we have a claim against a firefighter for example regardless of how they set up their way we don't and the reason for it is and again culture doesn't even address it because it's not in the briefing and it can't be in accordance with supreme court or circuit authority but before get it i get to that let me point out that before we even get to that the problem is we don't have any evidence of any allegation of some type of systemic failure here which is necessary in the case of as counsel acknowledges a failure for a lack of a written policy the argument here is not just that one person was improperly hired we know that that would never support a claim of a policy sufficient to state a claim against a government entity the general statement that the chief disregard risks in hiring fails for two reasons well st of all the mr watts appropriately now is that the city complies with tikal the texas commission on law enforcement so that demonstrates something other than the lack of deliberate indifference because deliberate indifference would be a failure to follow the guidelines of the state in hiring police officers what i heard counsel say is that the department did not look into why mr covington had been fired by or and left the employ of a private contractor in iraq we know it turns out it's in the briefing mr covington was trying to get somebody local to buy five agra for him would we say that that would rise to the level of an improper hiring i would respectfully submit heck no in brown and brown versus bryan county oklahoma the united states supreme court reversed this court which found the potential for governmental liability on the hiring claim where the sheriff failed to learned of an assault and battery charge against deputy tracy byrnes which then later was the plaintiff's allegation of a policy failure in hiring in an excessive force case so there one could see a line between an assault and battery and an excessive force case and yet the supreme court issued that and violation of a particular constitutional or statutory right not just a bad hiring decision and one can only imagine the nature of the claims that we would have if this court authorized the cause of action against a governmental entity based upon what might be called here at best negligent hiring but the same is true of the failure to supervise there are no allegations that any other madisonville police violated departmental policies molo the level of constitutional rights and so the plaintiff's own allegations belie her assertion that the department doesn't supervise its officers but even if that policy without more is sufficient to meet the threshold of municipal liability rather as this court explainer snyder versus your painting there must be and i'm quoting now at least a pattern of similar incidents in which sit injured to establish the official policy requisite to municipal liabilities so we have an obvious failure observed by the trial court which is this is a single incident in which an egregious act of misconduct occurred whether judge angle for we treated as one by a police officer or we treated by one who is acting in his private capacity be hopkins to be a police officer does not change the outcome in light of supreme court and the circuits authority the outcome is the same because we have a single isolated incident and we don't have the direct line that the supreme court explained in brown that the deprivation of which the plaintiffs complains must be plainly obvious plainly obvious consequence of using their words their plainly obvious consequence of the alleged policy the mere fact and i again i'm quoting this report i'm sorry this is the this is this court lewis versus pew the mere fact that a policy maker i'm going to quote it correctly knowledge on the part of a policy maker constitutional right violation will most likely result from a given official policy is a single one of municipal liability and there the trial court correctly observed that is completely lacking there is an encoded allegation that because mr covington was working for the police department and then did some bad thing and it i'm not taking away any of the badness he must have been improperly hired or improperly supervised and that simply does not track the authority of this court i would be remiss if i didn't take just a moment to address the issue of ratification the hear the public fail to allege fedak showing that  appropriate city policy maker approved of unconstitutional policy of conduct and the exact basis for it both of which are required by this court's opinion in the bt versus madison county school district i don't believe it's the same that is later in this case fifteen months later found to be illegal is not ratification perhaps the best explanation of the failure of the ratification allegation here is the appellants dogood insistence that this court law of governmental immunity on its head but that's what the opponents are asking we know that responded that superiority would be insufficient to state a claim against the government the city in this case and yet the appellant here is asking for a theory of government liability that's less than responding of superior or because the plaintiff is not even alleging that mr coming to did this in the course and scope of his employment or for th for as a servant for his master from which the theory of responding it's a pure comes appellant is asking this court to create if the area of government a liability that's lesser than that which turns on he did something bad and he worked for the city acting outside of the outside of the the knowledge of the department if you'll remember to get trooper clary at the time of the at the answered and in his report it's in the plaiting the notice that the entire police department all five or eight of them were swarming the arrests name circling to make sure what was going on there but also the covington was on the phone telling him where to look tell him what to look for and that was jeter had overlooked not only on this case on this guy but on the other officers have been turned into in the the the plan was it was his plan to plant drugs something that was not  the deal with it but in october two thousand and eleven david simms who was the i t guy informed cheap made a nd police chief that jeffery covington had a plan to plant drugs on informed cheap may about jeffrey's plans game record on appeal a two thousand two hundred and forty record on appeal a twenty four paragraph to sixty this didn't just pop up they knew what was going on this is a a one to one off deal that's what is your best case on a failure to supervise claim what circuit case do you think the court should look at in considering you failure to supervise c chief did supervise he got word from sam's and he got word from other police officers that covington is out to get his ex wife he's out to have it's a drug dealer plant drugs owner and end it and at the end of pleadings we point out may said i'm not going to believe those crackheads that's a failure to supervise while just simply say let's look into it and what case can we look at what case can we look at that supports your claim i understand the factual allegations i want to know what case you think this circuit has issued that supports your claim and would give you the relief after rise the relief you seek from us