IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40311

REBECCA BOWDEN, 

 Plaintiff - Appellant 

v. 

JEFFERSON COUNTY, TEXAS; NICK SALEME, 

 Defendants - Appellees 

Appeal from the United States District Court 

for the Eastern District of Texas 

USDC No. 1:14-CV-287

Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges. 

W. EUGENE DAVIS, Circuit Judge:*

Plaintiff-Appellant Rebecca Bowden appeals the district court’s grant of 

Jefferson County, Texas’ motion for summary judgment dismissing her First 

and Fourteenth Amendment claims under 42 U.S.C. § 1983. Bowden brought 

suit against newly elected Constable Nick Saleme, in his official capacity, and 

the County for her constructive termination from her job as Chief Deputy 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 19, 2017

Lyle W. Cayce

Clerk

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2 

Constable. Because Constable Saleme is not a policymaker for the County, 

Bowden’s § 1983 claims must fail. We AFFIRM. 

I. 

Nick Saleme defeated incumbent Charles Wiggins in the November 2012 

election for Jefferson County, Texas Precinct 1 Constable. Bowden served as 

the Chief Deputy Constable under Wiggins, and had previously served as a 

deputy for two prior constables. 

Bowden alleged that one week after the election, Saleme and Wiggins 

spoke on the telephone and Wiggins allowed Bowden and several other 

employees to listen to the call over speakerphone without Saleme’s knowledge. 

Bowden alleged that during that phone call Saleme said that he was going to 

terminate everyone in the Precinct 1 Constable’s office because they supported

Wiggins during the election. Other employees who listened in on the call also 

testified that they believed Saleme “made it clear that he was going to 

terminate everyone in the office” because of their “political loyalties” to 

Wiggins. Saleme disputed these statements and claimed that he said that he 

wanted to “bring in his own people.” 

After that purported phone call, Bowden contacted the director of the 

Jefferson County Human Resources Department who allegedly told her that 

the current constable’s office staff would no longer be on the payroll as of 

January 1, 2013. Bowden said she believed her options were to retire or be 

fired, so on November 19, 2012, she signed and filed the necessary documents

to retire effective December 31, 2012. When Saleme took office on January 1, 

2013, he did not retain any of his predecessor’s staff. 

Bowden filed suit in state court on February 28, 2013, seeking a 

declaratory judgment that Saleme, in his official capacity, and Jefferson 

County violated her rights under the Texas constitution. Later, she amended 

her petition to assert First and Fourteenth Amendment violations under 42 

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U.S.C. § 1983 against the County and Saleme, in his official capacity, for her 

constructive termination from the Constable’s office. Defendants removed the 

case to the district court based on federal question jurisdiction and moved for 

summary judgment on the § 1983 claims. 

Finding Bowden failed to raise a genuine issue of material fact, the 

district court granted summary judgment in favor of the County and Saleme, 

in his official capacity, on Bowden’s § 1983 claims and remanded the remaining 

state constitutional claims back to the Texas state court. 

II. 

We review a grant of summary judgment de novo, applying the same 

standard as the district court.1 The moving party has the burden of proving 

there is no genuine issue of material fact and that it is entitled to judgment as 

a matter of law.2 The non-moving party must show that summary judgment 

is inappropriate by setting out facts that show the existence of a genuine issue 

of material fact.3

III. 

To sustain a municipal liability action under 42 U.S.C. § 1983 for a 

violation of constitutional rights, a plaintiff must present “proof of three 

elements: a policymaker; an official policy; and a violation of constitutional 

rights whose ‘moving force’ is the policy or custom.”4 

Bowden does not allege that Saleme’s refusal to retain her as a deputy 

constable was pursuant to an official policy of Jefferson County. So our 

 

1 Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244, 246 (5th Cir. 2003) (citing Dickerson 

v. Bailey, 336 F.3d 388, 394 (5th Cir. 2003)). 2 FED. R. CIV. P. 56(c). 

3 Rivera, 349 F.3d at 247 (quoting Morris v. Covan World Wide Moving, Inc., 144 F.3d 

377, 380 (5th Cir. 1998)). 

4 Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v. Dep’t 

of Social Servs., 436 U.S. 658, 694 (1978)). 

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resolution of this case narrows to whether Constable Saleme is a policymaker 

with “final policymaking authority” for Jefferson County.5 “[A] local 

government is liable under § 1983 for its policies that cause constitutional 

torts,” and these policies “may be set by the government’s lawmakers, ‘or by 

those whose edicts or acts may fairly be said to represent official policy.’”6

Therefore, “[a] court’s task is to ‘identify those officials or governmental bodies 

who speak with final policymaking authority for the local governmental actor 

concerning the action alleged to have caused the particular constitutional or 

statutory violation at issue.’”7 And this inquiry, whether a particular 

individual is a final policymaker for the County, is a matter of state law.8 

Under Texas law, a policymaker must 

be one who “takes the place of the governing body in a designated 

area of city administration,” and who (1) decides the goals for a 

particular city function, (2) devises the means of achieving those 

goals, (3) acts in the place of the governing body in the area of 

delegated responsibility, and (4) is not supervised except as to the 

totality of performance. 

[T]he delegation of policymaking authority requires more than a 

showing of mere discretion or decisionmaking authority on the 

part of the delegee . . . . The governing body must expressly or 

impliedly acknowledge that the agent or board acts in lieu of the 

governing body to set goals and to structure and design the area of 

the delegated responsibility, subject only to the power of the 

governing body to control finances and to discharge or curtail the 

authority of the agent or board.9

 

5 See City of St. Louis v. Praprotnik, 485 U.S. 112, 124-25 (1988). 6 McMillian v. Monroe Cty., 520 U.S. 781, 784-85 (1997) (quoting Monell, 436 U.S. at 

694). 

7 Id. (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). 

8 Id. at 786 (citing Praprotnik, 485 U.S. at 123). 

9 Democracy Coalition v. City of Austin, 141 S.W.3d 282, 293 (Tex. App. 2004) 

(citations omitted). 

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We have applied Texas law in a variety of factual patterns and held that 

the constables in those cases were not policymakers for their respective 

counties. 

 In Rhode v. Denson, Rhode sued Constable Denson and San Jacinto 

County under § 1983 for misconduct in connection with an arrest.10 Rhode 

obtained a substantial verdict against Denson and the County.11 The jury also 

awarded Rhode punitive damages against Denson individually.12 We reversed 

the judgment rendered against the County and found that Constable Denson 

was not a policymaker for the County.13 We contrasted the role of constable 

with that of a sheriff, county treasurer, or county judge, and were

“unpersuaded that a constable of a Texas county precinct occupies a 

relationship to the County such that his edicts or acts may be fairly said to 

represent official county policy.”14 We concluded that “Denson, as a constable, 

lacked the power to make county policy.”15 

In Keenan v. Tejeda, former deputy constables filed suit against the 

constable, in his individual capacity, and the County.16 The deputies resigned 

after witnessing some unlawful activity in the constable’s office and then 

participated in a highly critical news report about the constable’s misconduct.17 

They alleged that following the news report they were unlawfully detained and 

arrested by the constable and his deputies.18 Following Rhode, we held that 

 

10 776 F.2d 107, 107-08 (5th Cir. 1985). 11 Id. at 108.

12 Id. 13 Id. at 109-10. 

14 Id. 

15 Id. at 110. 

16 290 F.3d 252, 256 (5th Cir. 2002). 

17 Id. 18 Id. at 256-57. 

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the County could not be held liable for the actions of the constable because 

constables are not policymakers.19 

Our unpublished opinion in Tonkin v. Harris County Texas is directly on 

point.20 Former deputy constables filed a § 1983 suit against the County 

alleging that the constable violated their First Amendment rights.21 The 

constable threatened to fire the deputies if they aired their grievances about 

his policies to the commissioners court.22 The constable also required the 

deputies to support his reelection campaign.23 When the deputies refused to 

comply, they were terminated and filed suit.24 

There, as in this case, the threshold question was whether the constable 

was a policymaker for the County so that the County could be held liable for

the constable’s action in terminating the deputies.25 Relying primarily on 

Rhode, we concluded that constables have limited authority and are not 

policymakers.26 We concluded that constables are not policymakers for the 

County even though constables are seemingly independent and lack 

supervision.27 Because the constable was not a policymaker and the plaintiffs 

sued only the County rather than the constable in his individual capacity, we 

held that the former deputies’ § 1983 claim must fail.28 

In Frank v. Harris County, a former deputy constable filed suit against 

the County pursuant to § 1983 and Title VII, alleging the constable sexually 

 

19 Id. at 262-63. 

20 257 F. App’x 762, 763 (5th Cir. 2007).

21 Id.; Brief of Appellants at 7-9, Tonkin v. Harris Cty. Tex., 257 F. App’x 762 (5th Cir. 

2007) (No. 07-20061), 2007 WL 4982759. 22 Brief of Appellants at 12, Tonkin, 257 F. App’x 762 (No. 07-20061), 2007 WL 

4982759.

23 Id. 

24 Id.

25 Tonkin, 257 F. App’x at 763. 

26 Id. at 763-64 (quoting Rhode, 776 F.2d at 110).

27 Id. (quoting Rhode, 776 F.2d at 110). 

28 Id. at 764. 

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harassed and then fired her.29 The district court granted the County’s motion 

for summary judgment on the § 1983 claim and we affirmed, holding that the 

constable is not a final policymaker.30 

Bowden relies on a Texas court of appeals case, Harris County v. Nagel, 

which held that the particular constable in that case was a policymaker for the 

County for the limited purpose of serving mental-health warrants.31 

In Nagel, the mother of a mentally ill man sought a mental-health 

warrant to move her son from her home to a hospital to stabilize his 

medication.32 Harris County Precinct 1 deputy constables executed the 

warrant and the man died in the process.33 The survivors of the deceased man

brought a § 1983 action against the County and the deputies who executed the 

mental-health warrant on grounds they used excessive force.34 To impose 

liability on Harris County, the plaintiffs argued, and the court agreed, that the 

Precinct 1 Constable was a policymaker for the County.35

The court emphasized however that the commissioners court delegated 

to this constable the authority to execute all mental-health warrants in Harris 

County.36 The commissioners court also appropriated funding for this 

constable to carry out this delegated function.37 In light of this broad 

delegation, the court held that the Precinct 1 Constable was a “final 

policymaker concerning the manner in which mental-health warrants [were] 

executed in Harris County.”38 

 

29 118 F. App’x 799, 801 (5th Cir. 2004). 

30 Id. at 801-02. 

31 349 S.W.3d 769, 793-94 (Tex. App. 2011). 32 Id. at 773-74. 

33 Id. at 774-75. 

34 Id. at 775. 

35 See id. at 791. 

36 Id. at 794. 

37 Id. at 794.

38 Id. 

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As demonstrated by the court’s limiting language, the Texas court’s 

finding that the Harris County Precinct 1 Constable was a policymaker is 

limited to that County’s constable for the specific purpose covered by the broad 

delegation of serving mental-health warrants.39 The limited holding in Nagel

is inapplicable here. 

Bowden also argues, as she did below, that Saleme testified that he was 

a “policymaker” for the purposes of hiring and firing deputies. As the district 

court correctly concluded, Saleme’s use of the word “policymaker” in testimony 

does not make him a policymaker for the County to impose § 1983 liability.40 

As the constable of one out of eight precincts in Jefferson County, Saleme 

may have been a decision maker for a single precinct, but he was not a 

policymaker for all of Jefferson County when he constructively terminated 

Bowden. 

Because Bowden failed to establish a policymaker or a County policy to 

support her claim, we need not examine whether there was a “violation of 

constitutional rights whose ‘moving force’ is the policy or custom.”41 

IV. 

Bowden failed to raise a genuine issue of material fact regarding her § 

1983 liability claim against Jefferson County. Constable Saleme is not a 

policymaker under Texas law and Bowden failed to assert that the County had 

a policy or custom that served as the moving force behind the alleged violation 

of her First and Fourteenth Amendment rights. The judgment of the district 

court is AFFIRMED. 

 

39 See id. at 791-94. 

40 Bowden v. Jefferson Cty.; Saleme, No. 1:14-CV-287, slip op. at 14-15 (E.D. Tex. Nov. 

6, 2015) (discussing Frank, 118 F. App’x at 802). 41 Piotrowski, 237 F.3d at 578 (citing Monell, 436 U.S. at 694). 

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