United States Court of Appeals

Fifth Circuit

FILED

June 19, 2003

Charles R. Fulbruge III

Clerk

REVISED JUNE 24, 2003

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________

No. 02-10051

 

JILL MUNCY, ET AL., 

Plaintiffs, 

v.

CITY OF DALLAS, TEXAS, ET AL., 

Defendants. 

 

ROBERT JACKSON, Etc.; ET AL.,

Plaintiffs,

ROBERT JACKSON, Assistant Chief;

WILLIE TAYLOR,

Plaintiffs - Appellants -

Cross - Appellees,

v.

CITY OF DALLAS, TERRELL BOLTON, 

Chief of Police, in his individual

and official capacities; TEODORO

BENAVIDES, City Manager, in his

individual and official capacities;

CHARLES DANIELS, Assistant City

Manager, in his individual and

Official capacities,

Defendants - Appellees - 

Cross - Appellants. 

 

Appeal from the United States District Court

for the Northern District of Texas, Dallas

 

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.

BENAVIDES, Circuit Judge:
2

The controversy at bar stems from an employment dispute

between Plaintiffs-Appellants, Robert Jackson and Willie Taylor,

and the Dallas Police Department. Jackson and Taylor were removed

from command positions with the Dallas Police Department and

demoted to significantly lower ranks. They initiated this action

against Defendants-Appellees, the City of Dallas, Police Chief

Bolton, City Manager Benavides, and Assistant City Manager Daniels,

asserting, inter alia, 42 U.S.C. §1983 claims of substantive and

procedural due process deprivation, and state law claims for breach

of contract and wrongful termination. The district court entered

summary judgment against Jackson and Taylor with respect to all

claims on the grounds that they lacked a property interest in their

employment. We agree with the district court’s conclusion that

Jackson and Taylor lacked a property interest in their employment,

and consequently we herein affirm the district court’s grant of

summary judgment. 

I.

The Underlying Employment Dispute

On October 1, 1999, Defendant-Appellee Terrell Bolton was

named Chief of Police of the Dallas Police Department (DPD) by

Defendant-Appellee City Manager Teodoro Benavides. Soon after

his appointment, Bolton endeavored to bring about a significant

reorganization of the command structure of the DPD. Among other

things, Bolton decided to make personnel changes at the highest
3

level of the DPD. Towards that end, on October 30, 1999, Bolton

"removed" nine department members from their command staff jobs. 

Plaintiffs-Appellants Robert Jackson and Willie Taylor were among

those removed from their positions.

Jackson joined the police force in 1972. He steadily made

his way up through the department ranks, receiving promotions to

the positions of Deputy Chief of Police in 1988, then to

Assistant Chief of Police in 1990. In 1991, he was promoted to

the position of Executive Assistant Chief of Police, the second

highest command position in the DPD. It was from this position

that he was removed by Bolton in 1999. Those executives who were

removed in Bolton's reorganization were demoted to the highest

rank appointment they had held prior to being appointed to the

executive ranks. Consequently, Jackson was demoted to the rank

of Sergeant. 

Taylor joined the DPD in 1971. In 1991 he was promoted to

Deputy Chief of Police. In August 1999, Taylor received an award

from the DPD for twenty years of perfect attendance. In October

of 1999, he was removed from his executive position by Bolton.

Taylor was demoted to the rank of Lieutenant. 

Jackson and Taylor were manifestly dissatisfied with their

demotions. Jackson retired from the DPD rather than continue his

employment at the reduced rank. He eventually accepted a job as

Chief of Police for the City of Killeen, Texas. Taylor remained

with the DPD, but contacted City Manager Benavides requesting
4

both a written statement citing reasons for his demotion, and a

hearing to contest his demotion. On November 16, 1999, Benavides

responded by informing Taylor he had no right of appeal. Taylor

retired from the DPD on March 27, 2001. 

On June 21, 2001, the City of Dallas (the City) contacted

Jackson and Taylor by letter informing them that they were

reinstated in the DPD, at their highest previously held executive

positions. They were advised to report for duty on August 15,

2001. However, both Jackson and Taylor have refused

reinstatement. They have not returned to their jobs, nor have

they accepted checks tendered by the City for back pay and

pension contributions. Instead, they have pursued this

litigation. 

Jackson and Taylor initiated this action in the Northern

district of Texas, asserting substantive and procedural due

process violations as well as state law claims for breach of

contract and wrongful termination. The parties filed crossmotions for summary judgment. The district court granted

Appellees’ motion for summary judgment on all counts, finding

that Jackson and Taylor lacked a property interest in their

executive positions with the DPD, and consequently they could not

prevail on their substantive or procedural due process claims,

nor could they prevail on their state claims. Jackson and Taylor

now appeal that finding. 
1 The Fourteenth Amendment to the Constitution prohibits the

deprivation of life, liberty or property unless the deprived

party has been afforded the benefit of those justice-safeguarding

processes which are due by law. U.S. Const. amend. XIV, § 1.

However, the Constitution only requires process in

circumstances in which the aggrieved party has been deprived of a

protected interest. Therefore, here, if Jackson and Taylor lacked

a property interest in their employment, then they cannot prevail

on their substantive or procedural due process claims, as the act

of removing Jackson and Taylor from their positions only

implicates those Constitutional guarantees if they first enjoyed

a legally cognizable property interest in their continued

employment. Moreover, Jackson and Taylor agree with the district

court that if their employment is determined to be at-will, then

summary judgment was appropriately entered against them with

respect to their state law claims. Consequently, the focus of our

inquiry here is fixed on the dispositive question of whether

Jackson and Taylor had a property interest in their jobs. 

5

II.

A. Property Interest

The primary question before this Court is whether, at the

time of their demotion, Jackson and Taylor were endowed with a

property interest in their continued employment at their

respective executive ranks with the DPD.1 Jackson and Taylor

assert that they enjoyed a protected property interest in their

executive rank positions with the DPD. We find, however, that

they did not.

It is well-settled that certain public employment situations

may endow an employee with a legally cognizable property

interest. Gilbert v. Homar, 520 U.S. 924 (1997)(observing that a

public employee who is dismissable only for cause has a property

interest in his continued tenure); Cleveland Bd. of Ed. v.
6

Loudermill, 470 U.S. 532 (1985). However, a property interest is

not incidental to public employment, instead it must be created

by an independent source, such as state law. Perry v. Sindermann,

408 U.S. 593, 601 (1972); Conner v. Lavaca Hosp. Dist. 267 F.3d

426 (5th Cir. 2001). In general, we have recognized that a

property interest is created where the public entity has acted to

confer, or alternatively, has created conditions which infer, the

existence of a property interest by abrogating its right to

terminate an employee without cause. This abrogation may take the

form of a statute, rule, handbook, or policy which limits the

condition under which the employment may be terminated, Henderson

v. Sotelo, 761 F.2d 1093, 1096 (5th Cir. 1985) (quoting Perry,

408 U.S. at 602-03, 92 S.Ct. at 2700); or it may take the form of

a more particularized mutual understanding with the employee.

Stapp v. Avoyelles Parish School Board, 545 F.2d 527 (5th

Cir.1977); Perry, 408 U.S. at 602. Ultimately, however, the

question of whether a property interest exists is an

individualized inquiry which is guided by the specific nature and

terms of the particular employment at issue, and informed by the

substantive parameters of the relevant state law. 

In Texas, there exists a presumption that employment is

at-will unless that relationship has been expressly altered in

one of two ways. City of Midland v. O'Bryant, 18 S.W.3d 209, 215

(Tex. 2000). The at-will relationship may be altered by contract;
2While Jackson and Taylor do advance an argument implicating

a mutually explicit understanding with the City, that argument is

without merit. Jackson and Taylor suggest to this Court that a

property interest in their employment was created by oral

representations made by City Officials. They assert that City

Officials assured Jackson and others that they would not be

demoted except for cause. In assessing this contention, the

district court correctly interpreted Montgomery County Hospital

District v. Brown, which held that such assurances in and of

themselves do not create a property interest in the employee's 

continued employment. 965 S.W.2d 501 (Tex. 1998).

7

Conner, 267 F.3d at 426 (citing Loftis v. Town of Highland Park,

893 S.W.2d 154, 155(Tex.App.--Eastland 1995, no writ); or by

express rules or policies limiting the conditions under which an

employee may be terminated; Vida v. El Paso Employees' Federal

Credit Union, 885 S.W.2d 177, 182 (Tex.App. -- El Paso 1994, no

writ). 

Here, there is no contract or similarly mutual understanding

with the City from which the putative property interest might

stem, and so the force of Jackson’s and Taylor’s arguments here

surround their allegations that the City’s official personnel

policies provided them with a property interest.2 Specifically,

Jackson and Taylor urge this Court to find that a property

interest in their executive rank employment emanated from a

myriad of sources, including several chapters of the City

Charter, City Personnel Rules, and City Human Resource documents.

We, however, find that none of the sources to which Jackson and

Taylor direct this Court vest in them a “legitimate right to

continued employment." McDonald v. City of Corinth, Tex., 102
3Jackson and Taylor rely on Richardson v. Felix, 856 F.2d

505 (3rd Cir. 1988), which is inapposite. In Richardson, the

Third Circuit found that a provision listing the procedures by

which an employee could be terminated for cause plainly meant

that employees could only be terminated for cause. Id. However,

there is no analogue here, as the provision cited by Jackson and

Taylor does not list procedures for terminating employees for

8

F.3d 152, 154 (5th Cir.1996)(citing Perry v. Sindermann, 408 U.S.

593, 601-02(1972)). 

1. Section 5

First, Jackson and Taylor argue that Chapter XII, Section 5

of the City Charter demonstrates that they were not at-will

employees. Section 5 states: 

If the chief of the police department, or any

assistant above the rank and grade of

captain, was selected to that position from

the ranks of the police department and is

removed from the position on account of

unfitness for the discharge of the duties of

the position, and not for any cause

justifying dismissal from the service, the

chief or the assistant shall be restored to

the rank and grade held prior to appointment

to the position, or reduced to a lower

appointive rank. 

Jackson and Taylor interpret this provision as mandating

that a chief-level officer may only be removed from his position

if he is “unfit” for the duties of the position, and Jackson and

Taylor would have us understand unfitness for duty as a quality

akin to the property interest-creating, for-cause condition on

employment termination.3
cause.

9

This interpretation, however, is not supported in the text

of Section 5. Section 5 outlines the conditions in which a

chief-level officer who is slated for demotion may be retained in

the department: only if the employee is removed for a reason

other than one that would be cause for dismissal, then will the

employee be demoted as opposed to discharged altogether. Thus the

provision contemplates that high level officials will be removed

from time to time, and in those instances in which the removal is

not for a cause that warrants dismissal, then the official will

be reassigned within the department. 

However, the decision to remove the executive in the first

instance is not conditioned on good cause, or even on - as

Jackson and Taylor would have us understand it - an “unfitness

of duty”. Moreover, even if it were, the phrase “unfitness for

duty” describes a nebulous status which conceivably could

encompass political unsuitability or any number of other reasons

which fall short of the property interest-conferring,

termination-for-cause standard. Indeed, Section 5 allows that

the demoted employee will be retained only in those instances in

which the “unfitness for duty” does not rise to the level of

“cause warranting dismissal”. Thus the provision itself evidences

that executives may be replaced for reasons other than for-cause.

Therefore, Section 5 does not serve as a limit on the City's
4 Jackson and Taylor also assert that Chapter XVI, §16 of

the City Charter invests them with a property right. However,

this claim was not before the district court and consequently is

not properly before this Court. 

10

ability to remove in the first instance, but rather it serves as

a limit on the City's ability to retain a former executive at his

previous rank. 

2. Section 10

Jackson and Taylor next point to Chapter XVI, Section 10 of

the City Charter to support their contention that Jackson and

Taylor had a property interest in their continued employment.4

Section 10 describes the terms of the probationary period for new

employees. Section 10 states: 

Appointments or promotions of city

officers and employees in the classified and

unclassified service shall not be deemed

complete until a period of six months shall

have elapsed. A probationer may be

discharged, suspended or reduced within said

period by the city manager, or the head of

the department in which said probationer is

employed without right of appeal. 

Jackson and Taylor argue that this provision grants a

property interest by creating an implicit right of appeal upon

completion of the probationary period. However, while this

argument would appear to be supported in the text of Section 10,

the next section of the chapter, Section 11, outlines the

affirmative parameters of the right of appeal and expressly
11

limits the right to non-managerial employees. That section

provides in pertinent part: 

Any classified or unclassified officer or

employee may be removed, laid off, or reduced

in grade by the city manager...after the six

month probationary period has expired.... The

discharged or reduced officer or employee

shall have the right to demand a public

hearing upon the charges.... This right of

appeal does not apply to department

directors, assistant department directors,

and other managerial personnel designated by

the city counsel. 

Consequently, the district court correctly concluded that

because Jackson and Taylor were employed in managerial positions,

the Section 11 exception to the Section 10 right of appeal

applied to them. 

Jackson and Taylor do not challenge the district court's

conclusion that they were employed in managerial level jobs.

Instead, they offer a novel theory concerning Section 10. They

contend that even if the right of appeal implicit in Section 10

has been withheld from employees like them in Section 11, that

exemption does not eviscerate the property interest itself.

Relying on cases which stand for the proposition that the

existence of a property interest does not depend on the creation

of procedures to remedy the deprivation of the interest, Jackson

and Taylor argue that their ability to access the right of appeal

does not inform the question of whether the existence of an
12

appeals process invests them with a property interest. See Arnett

v. Kennedy, 416 U.S. 134, 185 (1974). Specifically Jackson and

Taylor state that "[t]he exemption language contained in Section

11 speaks to the procedure of an appeal, not the underlying

property right which is set out...in Section 10." They then

conclude that once their respective probationary periods were

completed, their property interests vested pursuant to Section

10. 

This abstract right of appeal argument, however, is steeped

in contorted reasoning. Jackson and Taylor are asserting that the

mere specter of a theoretical right of appeal which they are, in

actuality, expressly excluded from claiming, places a sufficient

limit on the conditions of their termination or demotion such as

could alter the at-will nature of their employment. This

conclusion is obviously inconsistent with the standard put forth

in Texas law which requires a general employment policy to be

specific and explicit before finding that an at-will employment

relationship has been altered. City of Midland, 18 S.W.3d at

215; Conner, 267 F.3d at 426. Additionally, it is sophistry to

suggest that the City is constrained in any meaningful way from

terminating Jackson and Taylor by a provision from which they are

expressly excluded. Therefore, Section 10 does not grant Jackson

and Taylor a property interest in their continued employment.
13

3. The Human Resources Documents

Jackson and Taylor next direct the Court to two personnel

documents authored by the City which Jackson and Taylor contend

confer a general property interest upon all City employees that

complete the probationary period. The first of these documents,

dubbed the “Policy Document”, states:

Property Rights: Upon completion of the

probationary period, an employee is said to

have a “property right” to their [sic]

position. This means that the City cannot

remove you from your position without due

process. Due process requires that an

employee be given specific notice of the

reason of termination or other disciplinary

action affecting the employee's property

right. 

Jackson and Taylor point to this language and suggest that

the City has created a blanket property interest. However,

Jackson and Taylor overlook the relevant qualification contained

in a section of the Policy Document germanely entitled “Grievance

/ Disciplinary Appeal Process” and which unequivocally states: 

Specifics [regarding the steps of the appeals

process] are noted in the City Personnel

Rules in Section 34-38, Grievance and Appeal

Procedures.

Rule 34-38 of the City Personnel Rules appears in the City

Personnel Rules under Article VI, which governs the “Discipline,

Grievance, and Appeal Procedures” for City employees. Rule 34-38

specifically addresses the “Grievance and Appeal Procedures” and

provides in relevant part: 
14

(A) Applicability. This section applies

to every permanent city employee except:

(1) a department director,

assistant department director or other

managerial personnel designated by the city

council in accordance with Section 11,

Chapter XVI of the city charter. 

Thus, the personnel rule which outlines the right of appeal for

City employees is unequivocally consistent with Section 11,

Chapter XVI of the City Charter in expressly excluding managerial

level employees such as Jackson and Taylor from the general right

of appeal. As the Policy Document incorporates Rule 34-38 by

reference, we find that in authoring the Policy Document, the

City consistently excluded managerial employees from the general

right of appeal, and consequently the Policy Document cannot

serve as a source for creating a property interest in managerial

level positions. 

Similarly, Jackson and Taylor direct the Court to another

human resources document, dubbed the “Kress Document”, which also

outlines the City's official personnel policies regarding the

probationary period, and grievance and appeal processes. The

Kress Document states: 

The Dallas City Charter creates a

property interest for employees who

satisfactorily serve a probationary period.

Having attained a property interest an

employee is entitled to certain procedural

protections before his employment may be

terminated or seriously impacted.

However, the Kress Document, too, incorporates Rule 34-38 by
5The same analysis applies to Jackson’s and Taylor’s claim

of property interest pursuant to the City Personnel Rules. While

Jackson and Taylor direct the Court to Rule 34-11 which outlines

a probationary period for new employees and newly promoted

employees, and to Rule 34-12 which describes a grievance and

appeal process for employees who have served beyond their

probationary term, Rule 34-38 nevertheless expressly exempts, "a

department director, assistant department director, or other

managerial personnel” for the right of appeal described in Rules

34-11 and 34-12.

15

reference in describing the appeal procedures.5 Therefore we find

that the Kress Document is also consistent with the bi-level

approach adopted by Section 11 of the City Charter which excludes

managerial employees from the right of appeal. 

In sum, we find nothing in the sources presented us which

vested Jackson and Taylor with a legitimate right to continued

employment. Indeed we instead find that in each of the documents

before this Court, the City has laudably balanced its obligation

to inform its non-executive rank employees of their due process

rights, while carefully and quite appropriately retaining the

City’s right to remove, without impediment, high-ranking

officers. It is both proper and desirable that the City should

preserve its ability to act as a political body and reorder its

municipal leadership when the public welfare so requires, and the

City certainly does not forfeit that right by extending a

property interest to its non-executive employees. 

Therefore, as the City did not act to confer a property

interest to their executive-rank employees, we conclude that

Jackson and Taylor were, at the time of their demotion, employees
6The district court also determined that neither the Policy

Document nor the Kress Document created a property interest in

Jackson's and Taylor's employment because they did not present

evidence that they received or relied on the document. However,

Jackson’s and Taylor’s reliance on the documents is not relevant

to the analysis as to whether the City volitionally created a

property interest in its employment through the crafting of its

personnel policies. 

16

at-will, and the City was free to discharge them without cause.6

B. Motion to Bar

Appellees, the City, Bolton, Benavides, and Daniels assert a

single-issue cross-appeal. Appellees contest the district court's

ruling on Jackson’s and Taylor’s motion to bar certain attorneys

in the City Attorney office from working on the instant case. In

ruling on this motion the district court held that attorneys

Moss, Plaster, McClain, and Morales (hereafter the CAO

Attorneys), who were previously permitted to withdraw as counsel

of record on the basis that they might be called as witnesses in

the case, were likewise barred from participation in the case. 

A motion to bar under these circumstances is akin to a

motion to disqualify, and as such, this Court reviews the

district court’s determination to bar under an “overall abuse of

discretion” standard, in which we review the findings of fact for

clear error, and the application of the rules of ethical conduct

de novo. FDIC v. United States Fire Ins. Co., 50 F.3d 1304, 1311
17

(5th Cir.1995); Horaist v. Doctor's Hosp. of Opelousas, 255 F.3d

261(5th Cir. 2001).

However, the motion at bar deviates from the usual motion to

disqualify in one significant respect. Here, the attorneys who

were barred from participation in the case had previously

requested that the district court allow them to withdraw as

counsel of record. The CAO Attorneys asked the court to be

permitted to withdraw because, “some of the attorneys currently

representing the Defendants may be called as witnesses in the

case.” The Court granted the motion to withdraw, but the

Plaintiffs later moved to bar the very same attorneys who had

withdrawn. The motion to bar alleged that the withdrawn attorneys

were continuing to participate in the case. It is clear from the

record that the district court construed the CAO Attorneys’

motion to withdraw as a motion to withdraw from both presentation

and participation in the case, and consequently when presented

with Jackson’s and Taylor’s motion to bar the CAO Attorneys from

participation in the case, the district court stated: 

Plaintiffs have moved to bar based upon

the Court’s earlier order [permitting the

withdraw of the CAO Attorneys]. Plaintiffs

have not brought a motion to disqualify....

Because some of the attorneys who

specifically withdrew from representation

have continued to provide legal advice to

Defendants, the Plaintiffs’ motion is granted

in part.

 Thus, the district court understood its ruling on the motion to
18

bar to be an enforcement of its early ruling withdrawing the CAO

Attorneys. Our analysis here is distinguished from that which

would be applicable in the context of a motion to disqualify.

Were this an instance in which the district court disqualified a

party’s counsel of choice, ethical rules of conduct would govern

the court’s discretion to limit a party’s right to the counsel of

his choice. Here, however, the party in question moved the court

to withdraw his counsel, and therefore no finding of

disqualification was required for the attorney to be removed from

the case. We note further that although it might have, the motion

to withdraw fails to specify that the CAO Attorneys wished to be

withdrawn from representation, but not from participation, in the

case. Instead, the motion indicates only that the CAO Attorneys

would be withdrawn as counsel of record. Moreover, it is not a

clearly erroneous conclusion to surmise that attorneys who have

been voluntarily withdrawn as counsel of record from a case are

similarly withdrawn altogether from the case.

While both Appellees and Appellants point to rules which

they deem to be controlling as to which attorneys could be barred

by the district court and to what degree, both parties

misapprehend the scope of a district court’s discretion under the

particular circumstances at bar. Appellees argue that the

district court erred in barring the CAO Attorneys from

participation in the case because Rule 3.08(a) of the Texas

Disciplinary Rules of Professional Conduct provides that
19

attorneys who may be called to testify are barred from

representation before the Court, but not from participation in

the case. Appellees conclude that the district court confused the

standard put forth in Rule 3.08 -- which bars only

representation, and only by the attorney who might be called to

testify -- with the concept of attorney disqualification, which

potentially calls for the disqualified attorney to abstain from

both representation and participation in a given case. 

However, in asserting that the district court misapplied

Rule 3.08(a) of the Texas Disciplinary Rules of Professional

Conduct, Appellees are in error. Indeed, the district court did

not apply Rule 3.08(a) at all, but instead expressly stated it

found that the rule did not apply because there was no motion for

disqualification pending. More importantly, Rule 3.08(a) governs

the conduct of Texas attorneys, not the conditions under which a

district court may bar participation by an attorney. Therefore

the district court was not bound by Rule 3.08(a)in determining

the degree to which attorneys who were withdrawn as counsel of

record from the case could be involved in the case thereafter. 

 Apparently proceeding under the notion that the best

defense is a good offense, Jackson and Taylor suggest that the

district court did not go far enough, i.e., that the district

court should have banned the entire City Attorney’s Office as

their motion requested. Pointing to Rule 83.15 of the Local Rules

of the U.S. District Court for the Northern District of Texas,
20

Jackson and Taylor argue that the entire City Attorney Office was

disqualified from both participation and representation in the

case. That rule provides in pertinent part that:

 

An attorney must not accept employment in a

contemplated or pending case if the attorney

knows...that the attorney or another attorney

in the firm may be called as a witness on

behalf of the client....If, after accepting

employment in a case, an attorney learns...

that the attorney or another attorney in the

firm may be called as a witness on behalf of

the client, the attorney and the firm must

withdraw from the case.

L.R.83.15(a),(c) of N.D.Tex. (emphasis added). However, Rule

83.15 is inapplicable here. Under the heading, "Acceptance of

Employment" the rule details the circumstances in which an

attorney should decline to "accept employment...in a case." The

rule stipulates that when an attorney knows that he or someone in

his firm may be called to testify in a given action, that

attorney must decline to accept employment in the case. The

policy supporting this rule is evident, and implicates conflict

of interest concerns for the attorney acting as both an employee

of a party to the suit, and a witness -- concerns which are

simply not relevant when applied to the City Attorney Office or

other government agency.

Therefore, the district court did not err in ruling as it

did on the motion to bar. The district court did not rely on

either rule cited by the parties as controlling, and indeed
21

neither rule cited by the parties is controlling. Instead the

district court determined, in its discretion, to bar from

participation those attorneys who had already been withdrawn as

attorneys of record in the case. This determination does not

constitute an abuse of discretion and consequently we will not

disturb it.

III.

For the foregoing reasons, we AFFIRM the judgment of the

district court.