NO. 07-02-0121 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A NOVEM BER 24, 2003

______________________________ MARY LEEHUDSPETH GUNNELS, A PPELLANT V. CITY OF BR OW NFIELD, TEX AS; E ARL ELR OD, INDIV IDUALLY AND IN HIS CA PACITY

AS CITY

INSPE CTOR; ANDR. C. FLETCH ER, IND IVIDUA LLY AND IN HIS CAPACITY AS CIT Y MANAGER, APPELLEES

_________________________________ FROM THE 121 ST DISTRICT COURT OF TERRY COUNTY; NO. 14,545; HON ORABLEMACK EY HA NCOCK, JUDGE

_______________________________ Before JOHNSON, C.J. and REAVIS and CAMP BELL, JJ.
OPIN ION Appellant Mary

Lee Hu dspeth Gunnels c hallenges a take-no thing sum m ary judgm entgra nte d in f

avo r of app ellee s, t he C ity of B row nfie ld, R icha rd C urt is Fletcher, and Earl Elrod, on her claims for m alicious prosecution and violation of her constitutional rights2

based on two criminal prosecutions for viol ations of Ci ty of Brownfield or dinances. We will affirm the j udgme nt.
The events giving rise to this appeal began on Septem ber 5, 1 995 , w hen Br

ow nfie ld citym ana ger

Flet che r at

ten ded a hig h sc hoo l foo tba ll gam e. On leaving the game, he found a flyer on hi s car windshiel d advertisi ng the sal e of hom ecom ing mum s. The advertisemen t, which was placed on many cars in the stadiumparking lot, was for “M ary Lee’s located at 1415 Broadw ay” in Brownfield. It contained prices, good from Septem ber 8 through Septem ber

12, for several styles of mum s and relate d products. Fl etcher gave the advertisement to city i nspector Elro d and rela ted the circu mstances in which he found the docum ent.
In response, Elro d confirmed that appel lant resi ded at 14 15 Broadway, and executed two criminal co m plain ts. Thefirs t alle ged she“kn ow ingly and inte ntio nally distributed circulars or handbills upon the streets of the city” in violation of a city ordinance. The s eco nd a ll eged she “know ingly and intentionall y operated a flower shop in an R-1, sing le fam ily d w elling dist rict ,” in viol a tion o f the city’s zoning ordinance. Fletcher notarize d each of the complaints.
The cha rge of d istr ibut ing h and billswas t ried to a municipal court ju ry on Novem ber 14, 1995 and appellant wasacquitted. The first trial in the zoning violation case ended in
a hung jury, and appellant wasacquitted on retrial. The following m onth, appellant filed her petition in this case, pro se , nam ing the City of Brow nfield, and Elr od a nd F letc her

in3

the ir indivi dual and of ficia l ca pa cities, as defendants. The petition generally alleged cl ai ms for m alicious prosecution based on the conduct of Elrod and Fletcher. Other than naming the C ity as a defendant, the petition did not expressly assert any cl aims against it. On March 1, 1996, each of th e defendants specially excepted to the petition alleging itfaile d to state a cause of action and asserted general denials. The City filed a m otion for sum mary

judgm ent on May 26on the basis of sovereign im munity. Appellant am ended her petition to allege the prosecutions were m otivated by her exercise of first am endme nt rights and sought recovery for deprivation of her civ il rights under Title 42, Section 1983 of the U nited States Code. In Septem ber 1998, appellees filed a d oc ume nt en ti tl ed “s up pl eme nt ” t o t he Ci ty ’s mot i on fo r s umma ry judgm ent. It
a dded Elr

od a nd F letc her

as m ova ntsand ass ert ed t hat Se ctio n 10 1.1 06 of th e Ci vil Practice and Rem edies Code (Vernon Pamph. 2003), gave them the benefit of th e City’s imm unity, that th ey had i mm unity for reporting violations of the law, and enj oyed prosecutorial imm unity. Also, appellant took a nonsuit on her m alici ouspro sec utio n cla im against the City.
In an am ended answer filed October 26, 2000, E lrod and Fletcher raised the affirmative defenses of official imm unity, qualified immunity, s overeign imm un i ty, “absolute imm unity,” and prosecutor ial i mm unity. The sam e day, all three appellees filed a “Second Suppleme ntal Motion for Summ ary Ju dgmen t” in which they ass erted no-evidence grounds under R ule of Civil P rocedure166a(i), and tra ditio nal g rou ndson t he b asisof imm unity. Elrod and Fletcher

filed a third document

at the sam e time, ent itled a supplement to the4

“defendants’ second supplemental motion for sum mary judgm ent.” It reasserted their noevidence and imm unity grounds. Appellant responded to the outstanding m otions for sum mary judgm enton May 17, 2001. After a hearing the following Au gu st, th e trial court found each defendant w as entitled to final summ ary judgm ent on all claims. The court expres sly stated the grant of
sum m aryjudgm ent for the City w as not based on sovereign imm unity. Th e judgm ent on appeal here, a corrected final judgm ent, was signed on January 23, 2002.
ISSUES Appellant presents four issues for our consideration: (1) a challenge to the affidavits Elrod and Fletche r s ub mi tted as part of their sum mary judgm ent evidence; (2) that the court erred in holding there w er e no genuine questions of fact on he r malicious prosecution claims; (3) that it erred in ho lding there were no genu ine questions of fact on her federal claims under Title 42, Section 1983of the United States Code; and (4) that the court’s j udgme nt cannot be supported on the basis of im munity.
The City has

subm itted a bri ef pr esenting three arg um ents s upporting sum m ary judgm entfor it on appellant’s Section 1983 claim s. Elrod and Fletcher have filed a joint brief arguing th e record establishes there are no gen uine questi ons of fact on appel lant’s malicious prosecution claims or her Section 1983 claims . They also argue the judgm ent is supportable on the basis of official imm unity and qualified immu nity.5 STANDARD OF REVIEW
The sta nda rdsw e m ust app ly in rev iew ing asum m ary j udg m ent

areso w ell establis hed that a detailed rec itat ion of th osesta nda rdsis u nne ces sar y he re. It

is suffi cient t o note that a m ovant bears the burden to establish that there are no genuine issues of m aterial fact and that the m ovant is entitled to judgm entas a m atter of law. Nix on
v . Mr. Prop erty Management Co. , 690 S.W .2d at 546, 548 (T ex. 1985). W e must take evidence favora ble to th e no n-m ova nt a s tr ue a nd in dulg e in e ver y re aso nab le inference in favor of the non-m ovant. Id.
Rule o f Civil Procedure 166a(i) allows a party to seek s umm ary judgm ent on th e bas is that there is no evidence supporting an essential element of a claim or defense on which the opposin g party h as the b urden of proof. Beca use a no -evidencesum m ary judgm entis essentially the same as a pr etr ial d irected verdict, we apply the sam e legal suffici ency standard to both. King Ranch, Inc. v

. Chapman, 46 Tex.Sup.Ct.J. 1093 (20 03). The proper inquiry is whether the non-m ovant produced any probative evidence to raise
a ma terial fact issue. There is no evidence when (a) t here is a c omp lete absence of evidence of a vital fact, (b) the court is barred by rules of l aw or of evidence from giving weight to t he o nly

evidence offered to prove a v ital fact, (c) the evidence offered to prove
a vital fact

is no m ore than a m ere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Id. If the non-m ovant presents m ore than a sc intill a of probati ve evidence to raise a genuine material fact issue, sum mary judgm ent should not have been granted. Kindred v. Con/Chem, Inc. , 650 S.W. 2d 61, 63 ( Tex. 1983). More6

than a scintilla of

evidence exists when the evidence rises to a level suc h th at r eas ona ble and fair-minded people could differ in their conclusions. Id.

COMM ON LAW MALICIOUSPROSE CUTION
We begin with app ella nt’s second issue, which assi gns error to the trial court’s find ing tha t Elrod and Fletcher were ent itled to summ ary judgm ent on her claims for malicious prosecution. The parties agree that the opinion in Ri

chey v . Broo kshi

re Groce ry Co. , 952 S.W.2d 515 (Tex. 1997), correctly sets out the elements of a claim for m alicious prosecution. The elements are: the initiation of a crim inal prosecution against the plaintiff; bythe actions of the defendant; term ination of that prosecution in the plaintiff’s favor; the plai ntiff’s innocence; theabs ence of pro bab le ca usefor

thepro sec utio n; m alicein initiating the prosecution; and dam age to the plaintiff. Id. at 517. Elrod and Fletch er’s no-evi dence mot ions for

summ ary judgment asserted there is no evi dence on the elem ents of lack of probable cause and m alice.
In Richey

, the court reaf

f irmed the definition of probable cause in the m alicious prosecution con te xtas "the e xistence of s uch facts and circum stances as w ould excite belief in a reasonable mind, acting on thefacts w ithin the knowledge of th e prosec utor [com plainant], that the person charged was gui lty of the crime for which he was prosecuted." Id. at 517 (quoting from Aki n v. Dahl, 661 S .W.2d 917, 921 (Tex. 1 983)). Restated, the probabl e-cause determinati on asks whethe r a r eas ona ble p ers on w

ould7

beli eve that a crim e had been com mitted given the facts as the complainant honestly and reasonably believed them to be. Id.
Malice is d efin ed a s ill w ill, e vil mo tive, gross indifference, or reckless disregard of the rights of others. King v. Graham , 47 S.W.3d 595, 608 (Tex.App. --San Antonio 2001,
no pet.). It m ay be established by direct or circum stantial evidence. Thri ft v. H ubbard , 974 S.W.2d 70, 80 (Tex .App.- -Sa n Antonio 1998 , pet. denie d). Appell ant cites Bass v. Metz ger, 569 S.W.2d 917 (Tex.Civ.App.–C orpus Ch risti 1978, writ ref’d n.r.e.), for the proposition that m alice can be inferred from the initiati on of a prosecution without

pro bab le
cause. Seealso Ki

ng , 47 S.W.3d at 608. Fletcher and Elrod counter that Biering v. Fi rst National Bank, 7 S.W. 90 (T ex. 18 88 ), he ld th e “ two elements are distinct.” In Bieri ng , the court actually held thatlack of probable cause could not be inferred fromproof of m alice, Id. at 92, but noted that m alice ma y

be in fer red fro m pro of t hat the re w as n o pr oba ble
cause. Id.
W ith respect to probable cause, a malicious prosecution case begins w ith the presum ption tha t th e de fen dan t ha s ac ted rea son ably

and in goo d fa ith a nd h ad p rob able
cause to initiate the prosecution. Richey , 952 S.W.2d at 517; Akin , 661 S.W.2d at 920. The plai ntiff’s initi al burde n on that element is to pr oduce evide nce that “the motives, groun ds, beli efs, and other evidence” on w hich the defendant act ed d id no t co nst itute pr oba ble
cause. Id . Faced w ith Fletcher a nd Elrod’ s no-ev idence m otion for s um m aryjudgm ent on the absence of probable cause elem ent, then, appel lant was requir ed to point ou t evidence to rebut that initial presumption. Significantly, although appellant argues the g ene ral1 The handbill ordinance declared i t unlawful to “distribute or scatter any kind of

literature, circul ars, handbi lls or any kind of adve rtis ement s or loose paper upon the streets of

the city.” It is uncontroverted in this litigation that the flyer was an advertisement governed by the ordinance. 8 proposition that probable cause w as lacking for her prosecution pursuant to th e t wo com plaints, she does not ex pre ssl y as ser

t th at F letc her

or E lrod did n ot a ct o n th e ba sis of the flyer Fletcher found on his windshield, nor doe s she expres sly challenge the sufficiency of the flyer to constitute probable caus e for either com plaint. 1
W ith regard to the prosecution for distributing or scattering handbills, appellant argues that the complaint was not based on eye witness evidence that s he placed the flyer s on cars. How

ever she does not explain, nor does it appear to us, how

the absence of an eyewitness is evidenc e of the lack of probable cause. Having carefully ex amined the
sum m aryjudgm ent record, we find no evidence to support this elem ent of ap pell ant’s claims for m alicious prosecution arising from the handbill prosecution.
W ith regard to the prosecution for the zoning violation, appellant relies on a portion of Elrod’s deposition testim ony as evidence that the prosecution was brought w ithout probable cause. The deposition testim ony at issue consists of t he following passage:
Question: Did yo u ever obtain a search w arrant at any tim e to go to the Gunnels’ hom e after you filed that com plaint? Elrod: In incidents like this, it’s kind of hard to obtain a search w arrant. Question : Why is that, sir?9

Elrod: Because you don’t know w hat is in there and you don’t have proof of what is in there, totally. All you’ve got is guessing and suspicious [sic]. A nd the flierthat she put out led to s uspicious [sic] that there was, and that’s n ot grounds for – m y understanding, is not grounds for a s earch warrant.
The gist of

appellant’s argumen t is that Elrod’s statem ent is an adm ission he had only a suspicion that appell ant had viol ated the zoni ng ordin ance and therefo re did not h ave probable cause to file the com plaint all eging she did so.
We cannot agree that E lrod’s res ponse to the qu estion w hy it’s hard “in incidents lik e this ” toobtain asea rch w arrant am oun ts to su ch a n ad m iss ion, nor do w e se e his statem entas evide nce of the abs ence of probable cause. Tobegin with, the fi rst question in the quoted exchange inquired of Elrod whether hehad obtained a search warrantafter he filed the com plaint. Events occurring af ter Elrod filed the com plaint are not relevant to the iss ue of his

probabl e cause to initiate the prosecution of appellant. Akin , 661 S.W.2d at920 (“It is the events prior to the institution of the proceedings which m ust be examined, and only t hose events, t o determ ine if the defendants had pr obable cau se to a ct.”)
Assum ing, though, we c an infer that Elrod’s response to the second question reflects his beliefs about the availabili ty of a search w arrant at the t ime he filed t he
com plaint, we still cannot give his statem ent the significance appellant attributes to it. In its context, Elrod’s statem ent, reflecting his legal conclusion that he would not have been ableto obtain a search w arrant because it would have b een based on “guessing and suspicions,” wou l d no t lea d a f air- m inde d pe rso n tocon clud e eit her tha t hesub

j ect ively did notbelieve appellant was operating a flower shop in violation of the ordinance or that10

hi s belief was not obj ectively reasonable. See Ri chey, 95 2 S .W.2d a t 51 8-1 9. H is response to the question does not, as appellant urges, am ount to an adm ission by Elrod thathe had only a suspicion appellant was ope rating a flower shop in her hom e, and even viewed in th e li ght m ost favorable to appellant, it represents no m ore than a scintilla of evidence that probable cause w as lacking. Appellant also empha sizes what s he sees as a contradi ction between Elro d’s testimony

on d epo siti on t hat

he p erf

orm ed n o in vestigati on before m aking the determ ination that appellant was operating a bus iness in violation of the zoning ord inance and his statem ent in his affidavit that he “confirmed by his own investigative efforts” t hat appellant occupied the si ngle-fa mily residence at141 5 E ast Br oad w ay. Ag ain, tho ugh , in context, the contradiction fades. At deposition, Elrod was asked, “Did you go outand do anyinvestigation before you m ade [the determ inati on tha t appellant was violating the ordinan ce ]?” Af

ter his neg ative re spo nse , hew as a ske d, “ No p hon e ca lls, no p hys ic a l drive-b ys, call, talk to he r, or anything?” He again gave a negative respons e. The responses do not

con tra dict

Elr od’ s s tatem ent

in hi s affidavit. The differences between the responses and the affidavit do not raise a genuine issue of m aterial fact concerning the presence of probable cause. Appellant has further asserted t hat there are such i n consistencies and conflicts between the evidence given by Elrod and that g ive n by Fletcher, and between the statem ents m adeby eac h in h is deposition testimony a nd those contained in hi s af fida vit
as to raise a fact issue concerning the lack of probabl e cause. Having reviewed the11

deposition testimon y that was before the trial court and the affidavits of both defendants,
we do not find inconsistencies or conflicts in the sum mary judgm ent evidence sufficientto raise a genuine issue of m aterial fact concerning the probable cause elem ent. Ap pella nt’ s on lyargum ent addr essing s um m aryjudgm ent for Fl etcher on the l ack of probable cause elemen tapp ear s tobe t hat

Fletche r did not conduct any invest igation beyond the flyer itself. W e cannot a gree t hat is evidence he lacked probable cause. Again, appellant does not contend that the information in the flyer was insufficient to me et the standard for probable cause s et out in case law.
Because the summ ary judgment record supports a fin ding that th ere is no evi dence supporting an essential element of appellant’s claims for m alicious prosecution, that of the absence of proba ble causefor theprosec ution, th e tri a l court did not err in granting Fletcher and Elrod summ ary judgment on those claims. Tex .R.Civ .Proc . 166a(i) (s um m ary judgm entis proper when there is noevidence of “one or m ore essential elem ents.”)W e overrule appellant’s second issue.
SECTI ON 19 83 CL AIMS
We turn next to appellant’s third issue, in which she as serts that the tri al court’s grantof sum mary

judgm ent on her claims for deprivation of civil rights asserted under Section 1983 waserror. Those clai ms , asserte d against the City , Elrod a nd Fletche r, contended that pursuit of the tw o charges agains t he r constituted both m alicious2 Seegenerally Lansdale v. Tyler Junior College , 470 F .2d 659 (5 th Cir. 1972)

(affirming injunction under Sec tion 1983 for de privati on of equal protection); Izen v. Catali na , 256 F.3d 324, 327-28 (5 th Cir. 2001) (applying Fourth Am endme nt right to be free from malicious prosecution). The City has not challenged the trial court’s failure to grant its special exceptions so w e assum e, arguendo , that appellant’s petition is sufficient to state a cause of action against it under Rule of Civil Procedure 47.
12 prosecution in violation of her Fourth Amendm ent rights and sele ctiv e pr ose cut ion in violation of her right to equal protection of the law under the Fourteenth A mendm ent. 2
Section 1983 provi des a civi l cause of action against any person acting under color of state law who deprives another of a right protected by the federal con stituti on or laws. The U. S. Supreme Court has held that a munici pali ty is a “person” under the statute, but its liabi lity mustbe ba se d o n i ts own conduct, and cannot b e vicari ous arisi ng from conduct of its em ployees. Monell v. Dept. of

Social Servs ., 436 U.S. 658, 691, 98 S.C t. 2018, 56 L.Ed.2d 611 (1978). Municipal liabi lity for deprivations of constitutional rights mus t flow from an e sta blish ed p olicy or c ustomof t he m unic ipalit y. L eatherman v. Tarrant Co. Narcotics Intelligence Unit , 507 U.S. 16 3, 166, 122 L.Ed. 2d 517, 113 S. Ct. 11 60 (1993 ). Appellant does not allege that her prosecution waspursuant to a form al policy of the City. An offici al pol icy for which a m unic ipalit y m ay b e liab le ne ed n ot b e a f orm ally adopted one. Official policy can also be established by evidence of:
A persiste nt, w idespread practice of city officials or emp loyees, which, although not authorized by offici ally ad opted and promulgate d poli cy, is so com mon and well settl ed as to const itu te a customthat fairly represents municipal policy. Actual or constructive know ledge of such custom

mu st be att ribu tab le to the governing body of the m unicipali ty or to an official to whom that body had del egated pol icy-making author ity.3 This language is drawn fromappellant’s brief. 13 Johnson v. Moore , 958 F.2 d 92, 94(5 th Cir. 1992).
The official poli cy appellantseeks to establi sh was that t he city a ttorney

wou ld try all cases filed in municipal court regardless of the m erits of thecas e. A

s ev iden ce of th is policy, she cites the deposition testim ony of the city attorney, Wi lliam McGow an, that he did not consider dism issing the com plaints against appellant, even after one trial resulted in a hung j ury, an d his tes tim ony tha t he tried all cases, “win, lose or draw.” Appellant cha rac

ter izesthis

tes tim ony

as evid ence th at t he c it y att orn ey t riesall
cases “regar d less of his chances of success.” Based on this characterization of McGowan’stestimon y, and the statuto ry provision thatitis the duty of prosecuto rs, “not to convict, but to seethat ju stice is done,” Tex.Code C rim.Proc . Art. 2.01 (Vernon Supp

. 2003), appellant argues this is evidence of “the type of ‘serious i ncompetence’” 3 for which the rem edy created by S ection 1983 was established. Although appellant points to no evidence that the governing body of the City of Brow nfie ld , or any official to whomthe City had delegated policy-m aking authority, had knowledge of the city attorney’s policy, nor to any evidence that the C ity’s governing body had delegated policy-making authority to the city attorney, f

or purposes of this discussion
we will assum e h ere, arguendo , that the city atto rney is the type of poli cy-maker whose decisions and practices w ith respect to trial of cases in m unicipal court can be said to be the actions of the City

of Brown field. See Pembaur v. City of Ci ncinnati , 475 U.S. 46 9, 1064 Because of the em phasis appellant places on the c i ty at to rn ey ’s t es ti mony , we

reproduce the following exchange fromhis deposition testimony: Q: W as there any consideration after you he ard what th ey told you and the evidence you had of s ugg est ing adism iss al in thisma tter, one or m ore of them , or not trying it? A: No. I t ry all. [. . .] I try all cases. Win, lose or draw. . . . Q: Ye s, s ir. T hro ugh you r te rm as City A ttorney? There was no additional evidence sought or obtained prior to your going to trial that m orning? A: I d on’t re m em ber. Q: Wh a t was th e u lt ima te ou tc ome o f yo ur fi rs t jur y tr ia l o n t he se fi rs t two complaints? A: I think she was found not guilty of the littering[,] and the jury h ung on the business. Q: Okay. An d was a decision madeif at all about whether to retry t he hung jury com plaint? A: There never was a real question in my m ind that it’s still a complaint, and I’m going to try it. Q: Okay. A: I think th at i t’s m y duty, that w as m y duty as the C ity attorney wa s to present [the case]. 14 S.Ct. 1292, 8 9 L.Ed.2d 452 (1986). Appel lant assert s that, by virtue of the city attor ney’s long tenure, the practice of trying all cases was so persistent and w idespread as to fair ly representmu nicipal poli cy. Appellant statesin he r brief that the city attorney has maintained th e p ol ic y “ fo r h is en ti re te nu re of ove r t we nty years.” Although w e see no evidence in the record before us to suppo rt the statem ent, 4 again, for purpo ses of this discussion we w ill assume, arguendo, that there i s summ ary judgment evidence of a poli cy of the City to prosecute all municipal court cases to trial.
Even assum ing th e existence of such a policy, however, it did not give rise to a violation of a ppellant’s constitutional rights. To the degree that appellant contends that the city attorney’s tes timony is evidence th at she was pros ecuted m aliciously, the15

contention m ust

fail. “M alici ouspro sec utio n ca n bea c ons titu tion al vi olat ion .

. . only if a ll its com m on law

elem ents ar

e estab lished.” Castellano v. F r a g o zo , 311 F.3d 689, 698-99 (5 th Cir. 2002), citing Iz en , 256 F.3d at 327 . The elements of the consti tution al tort of malici ous pr osecut ion under S ection 19 83 are th e sam e as th ose und er state law. To establi sh her m alicious prosecution claim against the City under Sec tion 1983, therefore, appellant must establish the sam e elements as are required for her m alicious prosecution cl ai ms against Elrod and Fletcher under Texas law. Castellano , 311 F.3d at 699 . W e pre viou sly

have conclude d that appel lant has poi nted out no evi denc e that Elrod and Fletcher lacked p rob ablecause for their initiation of appellant’s prosecution. Nor is the city attorney’s policy evidence of a lack of p robable cause for appellant’s prosecution. Appellant asserts that t he City policy was to try a ll municipal court cases filed “despite the merit s of the p arti cula r case. ” Sh e fur ther describes the practice as one of prosecuting all cases to trial “regardless of the facts or la ck of p rob ablecau se, ” in violation of the prosecutor’s duty under the Codeof Criminal Procedure. Bu t th e cit y at tor ney did nottestify that he tried cases i n which the facts did no t support prosecu tion or i n which p rob ablecause was lacking. Nor does appellant cite us to other sum mary judgm en t evidence supporting such a conclusion. We are notpointed to evidence of the nature or numbe r of other cases the ci ty attorney has taken to trial , the evidence presented i n such cases, or their outcom es. On this record, thecity at tor ney ’s tes tim ony

falls con side rab ly short of evidence of a City custom, practice or pol icy of prosecuting mu nicipal court cases without probable cause.5 The parties do notcite any authority discussing w hether the determ ination that a plaintiff asserting disparate treatm entis similar ly situa ted to others i s a question of fact or la w. Th ey imp li ci tl y vi ew th e q ue st io n a s on e o f fa ct an d we w ill ana ly ze the issues presented on tha t basis. 16 Because, as noted, appellant was required to establish the sam e elements for her Section 1983 m alicious prosecution claims against Elrod and Fletcher as for her com monlaw malicious p rosecut ion claims against them , Castellano , 311 F.3d at 699, our conclusion that appellant has pointed out no evidence of thelack of p rob ablecause for her prosecution disposes of he r S ec ti on 19 83 cl ai ms against them as well. Richey , 952 S.W. 2d at 51 7. The t rial court’s grant of sum mary judgm ent on appellant’s Section 1983
m alicious pros ecution c laimswas not erro r. Appellant focuses her S ection 1983 claims alleging deprivation of equal protection of the law through selective prosecution on the actions of Fletcher and Elrod. As w ith any equal protection claim, to s ucceed appellantmu st dem onstrate first that sheand another person orcl as s we re s imilarly situated, 5 and secondly, that she was treated diffe rently. Beeler v. Rounsavall , 328 F.3 d 813 (5 th Cir. 2003 ). With reg ard to t he h and bill pro sec utio n, a ppe llant arg uessheis similarly situated to businesses that had advertised with flyers placed on car s. The sum mary

judgm ent record contains evi dence that three retail businesses had engaged in such advertising, but each had been warned that the practice violated a city ordinance rather than bein g prosecuted. Fletcher and Elrod seek to di stingui sh those instances on the basis that those businesses were located in com merc ially zoned districts. This distincti on m ay be relevant17

in considering whether there w as a basis for disparate treatm ent but, because the ordinan ce does not recognize th is distinction, we find thereis sum m aryjudgm ent evidence thatappellant an d the ot her threebusiness es were sim ilarly situated under the ordinance.
W ith regard to the zoning prosecution, appellant contends she is sim ilarly situated to city residents whoconduct garage sales in a residential district, and others who conduct businesses fromtheir homes, incl uding Fletcher and Elrod. She argues that h er sales
wereindis ting uish ablefro m gar agesale s because both are periodic or irregular rather than continuous. How ever, she does not identify an y sum mar y judgm ent evidence supporting the assertion that her sales were not conti nuous. The onl y relevant evi dence appearsto be th e l imi te d p er io d f or whi ch th e p ri ce s on th e f ly er we re valid and the language of t he f

lyer ref err ing to th e an nua l s ch oo l ho me com ing event. Indulging
rea son ableinference s in her favor , we cannot say, though, that ther e is no evi dence appellant’s activities were sim ilar to garage sales.
The evidence of business conducte d in Fletcher’s hom e wasthat his wife had baked and sold cakes. Fletcher points to evidence that this business activity involved only a few sales, none of

them in recent years. Ther e was also evidence that Elrod sells am munition reloaded in his home. H e relies on evidence that the am munition was not sold at the house and he d id not advertise. Finally, there was also sum mary judgm ent evidence that Elrod’s wife and daughtersoperate d a “ra dio telep hon e an swerin g se rvice” fromthe ir home. Appellees’ brief does not offer any distinction between thatactivity a nd appell ant’s. Again, indu lging rea son ableinference s in her fa vor, th e sum m aryjudgm ent evidence does18

not co nclusively establish that appellant was not sim ilarly situated to others who conducte d
com merc ial activities in residential districts. There is no evidence of other m unicipal court prosecutions under the zoning ordinance.
The m ere failure to prosec ute oth ers sim ilarly situated, though, is not sufficient to show selecti ve prosecuti on viol ative of equal protection. U.S. v. Greene, 697 F.2d 1229, 1234 (5 th Cir. 1983 ), cert. deni ed, 463 U.S. 1210 (198 3) ; Roi se v . State , 7 S.W.3d 225, 243 (Tex .App. --Aust in 1999, p et. ref ’d). To establi sh her clai m of selective prosecution, app ellant m ust further estab lish th at her diffe rent treatment was invidi ous, that is, mot ivated byimproper cons iderations such as race, religion, the interfe rence with exercise of a constitutional right, or other arbitrary classification. Beeler, 328 F.3d at 817 , see also Oyler v. Boles, 3 68 U.S. 448, 8 2 S.Ct. 501, 7 L.Ed.2d 446 (1962) ; Greene, 697 F.2d at 1234. To avoid sum mary judgm ent appellant must show a g enuine question of fact on whether Elrod and Fletc her’s d ecision to prosecute was deliberately based on such an unj ust ifiab le standard. See Oyler , 368 U.S. at 456 (selective enforcem entviolative of equal protection is tha t “d elibe rat ely b ase d up on a n un j ust ifiab le standard such as race, religion or other arbitrary c lassification. ”)
We disagree with Fletcher and Elrod’ s co ntention that appellant mus t show the decision to prosecute w as based on race, religion, or exercise of con stitutional rights. That contention is base d on a statem ent in Greene , 697 F.2d at 1234, listing those as im per m iss ible considerations in the decision to prosecute. How ever those factors

are not exclusive. As noted, in Beeler the Fifth Circuit recognized a claim of selective prosec ution19

can be based on an “arbitrary classification.” 328 F.3d at 817. See also, e.g., Hayden v. Grayson , 134 F.3d 449, 45 3 n.3 (1 stCir. 1998), citing Wayte v. Uni ted States , 470 U.S. 598, 608 , 105 S .Ct. 1 524, 84 L.Ed. 2d 547 (1 985).
But appellant fails to cite any evidence that the decision to prosecute her in either
case was bas ed on such an im permissible ground. Her first am ended petition alleged the prosecutions were m otivated by the ex er cise of first am endme nt rights by her and her father. Appellantrefers us to no evidence in the reco rd supporting that pleading and she does not present that argum ent on appeal. Her assertions that others engaging in similar practices were not p rosecuted and that othe rs were let off w it h a w

arn ing a re s im ply restatem ents of the argum ent that she has bee n treated differently. Taking appell ant’s contention that she is the only person w ho has been prosecuted for violations of these ordinances as tru e fo r pu rpo sesof t his summ ary judgment analysis, th atfact m ay establish that appellant has been treated differently, but it is not eviden c e thatshe has bee n tr

eated d iffe ren tly

for an imperm issible reason. Nor is the failure of Elrod and Fletcher to conduct any investigation beyond the flyer such ev idence, n or is the presence of Elrod’s and Fletcher’s nam es am ong those w ho have not been prosec uted for
com merc ial activity in residenti al areas.
The record sup por

ts afind ing t hat

the re isno sum mary

judgm entevidence that any differential treatm ent of appellant in enforcemen t of the city ordinances w as in vidio us in thatit arose from an arbitrary or ot herwise imperm issible classifi cation. See Greene , 69720

F.2d at 1234. Becaus e of the absence of any evidence on an indispen sable e lement of appell ant’s clai m s fo r se lect ive p ros ecu tion , th e tr ial c our t did not err in granting sum m ary judgm ent for Fletcher and Elrod on those claim s.
Nor does the record contain evidence of a City policy giving rise to a claim that appellant was s electively prosecuted. As noted, the official policy on which appellant relies for her Section 1983 cl aims against the Ci ty is the city a ttorney’s pol icy of bringing to trial all mu nicipal court cases pr esente d to himfor pros ecution. Such a policy ca nnot fo rm the bas is for a s elec tivepro sec utio n cla im agai nst the City. The existence of such a pol icy obv ious lydoes not support a content ion that the city attorney’s actions in taking appellant to trial on the complaints against her w ere “selective” or had the effect of t reating her diff ere ntly tha n ot her

s s im ilar ly si tuated. To the contrary, if the city attorney’s test imony represents City policy, app el la nt wa s treated like others wh o were cited by com plaint. Moreo ver, appellant poi nts to no evidence that any a ction taken pursuant to the city attorney’s polic

y w as take n be cau se of an arb itra ry o r ot her w ise i m per m iss ible classification of her. W e find thetrial court properly granted sum mary judgm ent for the City of Brow nfield on appellant’s selective prosecution claims against it. Having concluded that

thetria l cou rt d id not err in granting sum mary judgm ent on appellant’s Section 1983 claims against appellees, we overrule appellant’s third issue.
CONCLUS ION21

Our dispositionsof appe llant’s se cond an d third issu es are di sp os i ti ve of he r c l ai ms against appellees. Except to the degree that w

e have considered and rejected appell ant’s assertions that the affidavits of Elrod and Fl et ch er cr ea te d mat er ia l q ue st io ns of fa ct , we need not address h er first i ss ue, nor need we address her fourth issue challenging appell ees’ entitlement to s umm ary judgm ent on the basis of im munity. The judgm ent of the trial court is affirmed.
Jam es T . C am pbe ll Justice