1 District Judge of the Northern District of Texas, sitting by

designation. United States Court of Appeals,

Fifth Circuit.

No. 96-20798.

Carol BURNS, Plaintiff-Appellant,

v.

HARRIS COUNTY BAIL BOND BOARD, Defendant-Appellee.

April 21, 1998.

Appeal from the United States District Court for the Southern

District of Texas.

Before KING and JON ES, Circuit Judges, and KENDALL, 1 District

Judge.

KENDALL, District Judge:

Carol Burns appeals the district court's decision g ranting

summary judgment to the Harris County Bail Bond Board on Burns's

claims that the Board had violated her constitutional rights to due

process and equal protection in its refusal to renew her licenses.

We affirm the judgment of the district court.

I. BACKGROUND

This case arises out of the defendant/appellee Harris County

Bail Bond Board's ("the Board") decisions not to renew the bail

bondsman's property license and agent license of

plaintiff/appellant Carol Burns ("Burns"). Pursuant to the Texas

Bail Bond Act, Tex.Civ.St.Ann. art. 2372p-3, the Board supervises

and regulates all phases of the bail bonding business in Harris

County. No person may act as a bail bondsman in Harris County

without a license issued by the Board. Bail Bond Act § 3(a)(1).The ten members of the Board, des ignated by statute, are: a

district and a county court judge having jurisdiction over criminal

matters, a justice of the peace, the presiding judge of the City of

Houston's municipal court, the county judge or a member of the

commissio ners court designated by the county judge, the district

attorney, the county sheriff, the district clerk, the county

treasurer, and a licensed bail bondsman elected by other licensees.

Bail Bond Act § 5(b). The Board meets once each month to govern

the exe cution of bail bonds in Harris County. Bail Bond Act §

5(d).

At issue are Burns's bail bondsman (p roperty) license and

agent license. The statute requires that a property bondsman post

collateral with the county to secure bonds written on the license.

Bail Bond Act § 6(f). A property bondsman may write bonds that

t otal 10 times the amount of collateral. When that limit is

reached, the bondsman's ability to write bonds must be temporarily

suspended by the Board, without prior notice or hearing, until the

value of the collateral is increased or the value of the

outstanding bonds is decreased. Bail Bond Act § 10(f). The Board

must revoke the license with prior notice or hearing if the

licensee fails to pay any final judgment connected with the

licensee's bonding business within 30 days and there is

insufficient collateral to satisfy the final judgment. Bail Bond

Act § 9(b).

In 1987 Burns app lied to the Board for, and was granted, a

bail bond license. This license expires 24 months after the date

of its issuance unless an application for renewal is granted by theBoard. Bail Bond Act § 8(a). The Board renewed Burns's bail bond

license in March 1989 and March 1991. In December 1991 the Board

issued the International Fi delity Insurance Company ("IFIC") a

license to write bail bonds in Harris County, with Burns as IFIC's

agent on the license. The agent's license subjects the insurance

company's rather than the agent's assets to liability to the State

for bond forfeiture.

On March 10, 1993, Burns appeared before the Board at its

regular monthly meeting seeking the renewal of her ba il bond

license, which was to expire on March 21, 1993. During the

hearing, Burns conceded that she lived in Austin and only traveled

to Harris County every two weeks to attend to the business of her

bail bond company, she had failed to list in her application one of

her contract employees, she failed to list her husband as an

employee despite the fact that he handled many of the matters in

the Houston office, and she had never dealt with certified mail

containing information about final judgments and had no i dea how

th ose documents were handled. Burns's husband, John Burns, had

been a licensed bail bondsman in Harris County for a number of

years, but lost his license when he accumulated $479,000 in

outstanding judgments that he owes to Harris County. S ee Harris

County Bail Bond Bd. v. Burns, 881 S.W.2d 61, 64 (Tex.App.—Houston

[14th Dist.] 1994, writ denied) ("The facts presented by the Board

did suggest that [Burns] had little involvement with her business

and that John Burns for all practical purposes was operating under

his wife's license.").

Assistant City Attorneys Grace Loya and Robert Miklos and CityAssistant Chief Clerk Mark Muellerweiss testified that Burns owed

the City of Houston more than $45,000 in outstand ing bond

forfeiture judgments, and that Burns and her husband had known

about them for more than a year but made no effort to resolve them.

Board chairma n Sheriff Johnny Klevenhagen noted that Burns's

license had been automatically suspended three days before that for

exceeding her ratios by some $36,000. Upon motion to renew Burns's

license, ther e were three votes for and three votes against.

Chairma n Klevenhagen postponed Board action on Burns's renewal

until the end of the meeting so t hat Burns could negotiate a

p ayment schedule with the City. After a break, the Board again

voted three to three on the motion to renew Burns's license, and

the motion failed for want of a majority. Burns knew at that time

that her lice nse would not be renewed after its expiration a few

days later.

On March 11, 1993, Burns requested a copy of the transcript of

the meeting from the Harris County District Clerk. By letter dated

March 25, 1993, the Clerk informed Burns that an opinion had been

requested from the Texas Attorney General as to whether the

transcript of the March 10, 1993 meeting was exempt from

disclosure, so that the Clerk could not release the transcript to

Burns at that time.

In the meantime, on March 14, 1993, Burns filed suit in Harris

County District Court to appeal the Board's decision as provided by

the Texas Bail Bond Act. On July 12, 1993 a trial d e nov o was

conducted in the 127th Judicial District Court of Harris County by

Judge Sharolyn Wood. On August 6, 1993, Judge Wood ordered Burns'srenewal application be approved a nd her bail bond license be

reinstated retroactive to Mar ch 21, 1993. Burns resumed writing

bail bonds on her license. The Board timely filed a notice of

appeal from this decision.

On December 8, 1993 Burns appeared before the Bail Board

concerning the renewal of her IFIC agent license. Burns was

represented by counsel at this hearing. The Board determined that

her application contained several d eficiencies, such as the

omission of a collateral log, which pursuant to the Bail Bond Act

must be submitted to the Board for inspection prior to renewal of

a license. Bail Bond Act § 4(b). The Board did not vote on

Burns's renewal application for the agent license that day, but

postponed further action until the application's deficiencies were

remedied. Chairman Klevenhagen noted that the Board cannot act on

an application that does not meet the statutory requirements.

Burns never again submitted an application to the Board for the

agent license, and it expired on December 21, 1993.

On June 14, 1994, the Texas Court of Appeals, Fourteenth

District, reversed Judge Wood's o rder that Burns's bail bond

license be renewed. The Court of Appeals held that the district

court abused its discretion in granting Burns a license because at

the time of trial Burns had an unpaid final judgment of $5,000 on

a bond forfeiture which was more than 30 days old and was on appeal

without a supersedeas bond. The Court of Appeals concluded that

Burns was in violation of section 9(b)(6) of the Bail Bond Act and

that her application for renewal was properly denied by the Board.

The Texas Supreme Court denied Burns's application for writ oferror on February 8, 1995, and Burns filed a motion for rehearing.

While that motion was pending before the Texas Supreme Court, on

March 8, 1995 the Board considered Burns's application for a new

bail bond license. During the hearing, Burns and her lawyer were

asked questions regarding whether the property she pledged as

collateral was community or separate property. They could provide

no proof that the property was Bu rns's separate property, as

required b y section 6(a)(4)(E) of the Bail Bond Act. The Board

denied Burns's application for a new license by a 5-2 vote. Burns

had also applied to the Board to renew her previous bail bond

license, but the Board chairman removed consideration of the

renewal from the agenda because the Board maintained she had no

license to renew.

On March 15, 1995, Burns filed suit against the Bail Board in

the 11th Judicial District Court of Harris County , appealing the

Board's decision to deny her application for a new license at the

March 1995 meeting. The suit also alleged that the Board had

violated her constitutional r ights pursuant to 42 U.S.C. § 1983.

T he Board timely removed the suit to the U.S. District Court for

the Southern District of Texas. The district court bifurcated the

case and remanded the state law claims, retaining the claims

pursuant to § 1983. The issues remanded to state court were

resolved on summary judgment against Burns, and that case is now on

appeal.

As for the claims in federal court, by Order entered July 25,

1996, the district court granted the Board's motion to dismiss and

for summary judgment. The district court converted the motion todismiss into a motion for summary judgment after Burns su bmitted

numerous exhibits outside the pleadings in her response. Burns has

a ppealed the district court's decision to grant summary judgment

for the Board on all of her claims.

II. STANDARD OF REVIEW

When matters outside the pleadings are presented to and not

excluded by the district court, the district court must convert a

motion to dismiss into a motion for summary judgment. Fed.R.Civ.P.

12(b); F lores v. Sullivan, 945 F.2d 109, 110 n. 3 (5th Cir.1991).

T he district court properly converted the Board's motion in t his

case. We review the granting of summary judgment d e novo, applying

the same criteria used by the district court. T exas Medical Ass'n

v. Aetna Life Ins. Co., 80 F.3d 153, 156 (5th Cir.1996). Summary

judgment is proper when the pleadings and evidence illustrate that

no genuine issue exists as to any material fact and that the movant

is entitled to judgment or partial judgment as a matte r of law.

Fed.R.Civ.P. 56(c); S laughter v. Southern Talc Co., 949 F.2d 167,

170 (5th Cir.1991). When a movant properly supports his motion

with competent evidence and demonstrated the absence of a genuine

issue of material fact, the burden then shifts to the nonmovant to

show that the entry of summary judgment is inappropriate. D uckett

v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir.1992). Factual

controversies are resolved in favor of the nonmovant, but only when

both parties have submitted evidence of contradictory facts, thus

creating an actual controversy. L ittle v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir.1994) (en banc). In the absence of any

proof, however, the Court does not assume that the nonmovant couldor would prove the necessary facts. Id.

III. DISCUSSION

The issues Burns submits on appeal fall into thre e basic

categ ories: 1) Burns's specific challenges to the Board's

decisions of March 10, 1993, December 8, 1993, and March 8, 1995,

2) Burns's general challenges to the Board's decisions, and 3) the

issue of the Board's absolute immunity.

1.A. Issues Specific to the March 10, 1993 Meeting

Burns challenges on several grounds the granting of summary

judgment as to the March 10, 1993 meeting in which the Board denied

the renewal of her bail bond license. Burns asserts that she was

denied due process because the Board allowed presenta tion of

charges of misconduct of which she had no notice, allowed unsworn

and undocumented testimony to be considered, and denied renewal of

her license by a tie vote. Burns also claims that the Board

violated her rights t o due process by refusing her access to the

record of the March 10, 1993 meeting. Finally, Burns asserts that

the Board violated her right to equal protection when it claimed

that she was not entitled to license re newal because of a final

judgment on a bond forfeiture on appeal, although it has renewed

the licenses of other bondsmen in the same situation.

The district court determined that all of Burns's claims with

regard to the March 10, 1993 hearing were barred by the statute of

limitations. The applicable statute of limitations is the forum

state's general personal injury limitations period, which is two

years. The cause of action would have accrued under federal law

when the plaintiff knows or has reason to know of the injury thatis the basis of the action. Since Burns filed suit on March 14,

1995, claims regarding any ac tivity that occurred prior to March

14, 1993 are barred by the statute of limitations.

Although Burns concedes that the two year statute of

limitations applies, she argues that the statute of limitations

does not run until all of the elements of the claim are in place,

so that her cause of action did not accrue until March 21, 1993,

the date her license to write bail bonds expired. Burns contends

that actual injury is a necessary element of a claim, and that her

legal injury was the denial of a property right without due

process. Although the "without due process" component occurred on

March 10, 1993, the denial of the property right did not oc cur

until March 21, 1993.

We conclude that the district court correctly applied the law

in determining th at Burns's claims regarding the March 10, 1993

Board meeting are barred by the statute of limitations. As no

federal statute of limitations exists for § 1983 actions, federal

courts defer to the forum state's general personal injury

limitations period. O wens v. Okure, 488 U.S. 235, 249-50, 109

S.Ct. 573, 581-82, 102 L.Ed.2d 594 (1989); F lores v. Cameron

County, Te x., 92 F.3d 258, 271 (5th Cir.1996). In Texas, the

applicable period is two years. Tex.Civ.Prac. & Rem.Code §

16.003(a).

Although Texas law governs the limitation s period, federal

law governs when a cause of action accrues. J ackson v. Johnson,

950 F.2d 263, 265 (5th Cir.1992); Piotrowski v. City of Houston,

51 F.3d 512, 516 n. 10 (5th Cir.1995). Under federal law, a causeof action accrues "when the plaintiff knows or has reason to know

of the injury which is the basis of the action." B urrell v.

Newsome, 883 F.2d 416, 418 (5th Cir.1989); G artrell v. Gaylor, 981

F.2d 254, 257 (5th Cir.1993). We affirmed the district court in

Brosset te v. City of Baton Rouge, 837 F.Supp. 759, 762

(M.D.La.1993), a ff'd, 29 F.3d 623 (5th Cir.), cert. denied, 51 3

U.S. 971, 115 S.Ct. 443, 130 L.Ed.2d 353 (1994), wherein the

district court held that the plaintiff's § 1983 cause of action for

suspension of his liquor license accrued on the day he received

notice of the suspension. Identical circumstances are presented

here.

Burns cannot salvage her time-barred claims by contending that

they did not accrue until she actually lost her bail bond license

eleven days after the Board meeting. Burns was present at the

March 10, 1993 Board meeting and was put on notic e that day that

her license would not be renewed. All of her claims concerning

this Board meeting arise from the Board's rejection of her renewal

application on March 10, 1993, not from the expiration of her

license by operation of law on March 21, 1993. Burns's claims were

not timely filed, and the district court properly dismissed them.

1.B. Issues Specific to the December 8, 1993 Meeting

Burns challenges the granting of summary judgment in favor of

the Board with respect to the Board's December 8, 1993 meeting,

when it postponed a vote on the renewal of Burns's license to act

as an agent for IFIC. Burns contends that the Board violated her

due process rights when it refused to allow her a hearing on her

renewal application for the agent's license, and that she receivedno proper notice before her property right to this license was

withdrawn. In addition, Burns argues that as a matter of law she

w as not required to appeal to state court the Board's refusal to

allow her a hearing, because any appe al to the state court would

have not remedied the due process violations committed by the

Board, as there is no remedy for the amount of time she was out of

business.

The district court determined that, as Burns never appealed

the Board's decision to table the consideration of her IFIC agent

license renewal appli c ation, Burns did not exhaust her

administrative remedies. Burns cannot argue that her due process

right s were violated when she skipped an available state remedy.

The district court noted that if, as Burns argued, she did not have

standing to a ppeal the Board's decision, she certainly would not

have standing to assert a civil rights claim based on that

decision.

We conclude that the district court correctly granted summary

judgment for the Board on Burns's claims concerning the December 8,

1993 Board meeting. Despite the Board's invitation to do so, Burns

never subsequently appeared before the Board to seek approval of a

corrected IFIC agent license application. In addition, Burns chose

not to exercise her right to appeal the Board's decision to table

a vote on her application.

The Texas Bail Bond Act provides that an appeal may be taken

from an adverse decision by the Board within 30 days by filing a

petition in district court in the county in which the license is

issued or refused. The appeal is by trial d e novo, and the Board'sdecision has full force and effect pending the determination of the

appeal. Bail Bond Act § 11. Burns was unquestionably familiar

with this appellate process, as by December 8, 1993 she had already

appealed the Board's decision of March 10, 1993 denying the renewal

of her bail bond license. As the district court noted, a plaintiff

cannot argue that her due process rights have been violated when

she has failed to utilize the state remedies available to her.

Myrick v. City of Dallas, 810 F.2d 1382, 1388 (5th Cir.1987);

Browning v. City of Odessa, 990 F.2d 842, 845 n. 7 (5th Cir.1993).

1.C. Issue Specific to the March 8, 1995 Meeting

Finally, Burns challenges the granting of summary judgment

with respect to the Board's March 8, 1995 meeting, claiming that

the Board violated Burns's rights to due process when it refused to

consider her application to renew her bail bond license. The

district court found no due process violation in the Board's

refusal to consider Burns's application. Burns had applied to

renew her license on the bas is of Judge Wood's 1993 decision to

reinstate the license. That decision had already been reversed on

a ppeal by the Texas Court of Appeals, the writ of error had been

denied by the Texas Supreme Court, and all that remained of the

appeals process was a decision by the Texas Supreme Court on

whether or not to grant a rehearing. The district court noted that

the Board's March 10, 1993 rejection of her license renewal

application had full force and effect pending the determination of

Burns's appeal. Bail Bond Act § 11. Burns contends that she had

a property right in the bail bond license because once Judge Wood

had tried her appeal of the Board's decision and issued the2 The Texas Supreme Court denied Burns's motion for rehearing

on March 23, 1995, fifteen days after this Board meeting. license, the Board's decision had no further effect.

We find Burns's claim to be contrary to the plain language of

the Bail Bond Act. Burns had no property interest in a bail bond

license on March 8, 1995—she had no valid license on that date. By

that time, the Court of Appeals for the Fourteenth District had

reversed Judge Wo od's reinstatement of Burns's license, H arris

County Bail Bond Bd. v. Burns, 881 S.W.2d at 64, and th e Texas

Supreme Court had denied a writ of error. The only potential

circumstance that could abrogate the full force and effect of the

Board's decision would be the grant of a rehearing and subsequent

reversal by the Texas Supreme Court, a circumstance which was a

long shot at best and indeed never occurred. 2 The fact that Burns

previously held a property license (which had expired some two

years earlier ) is insufficient to create a property interest

entitled to due process protection in March 1995. S mith v. Travis

County Bail Bond Bd., 559 S.W.2d 693, 694 (Tex.Civ.App.—Austin

1977, no writ) (applicant whose license had expired had no property

right subject to protection because he had no claim of entitlement

to a bail bond license).

2. General Challenges to the Board's Decisions

Burns also challenges the granting o f summary judgment for

the Board on several general grounds. Burns contends that the

Board violated her rights by participating in a conspiracy to put

her out of business for illegal motivations. Burns asserts that

the Board is liable for actions of its individual members when theactions of those members represent action by the Board. Burns also

asserts that the notice that a meeting will be held and publication

o f a statute are inadequate notice that a property right will be

taken away.

The district court held that the Board can only be held liable

for the acts committed by the entity as a whole, and only for

actions taken in its monthly meetings. The separate actions of

individual members of the Board are insufficient to bind the Board

as a governmental entity. Thus, Burns's allegations of conspiracy

and other wrongdoing by a few members as individuals do not give

rise to a viable claim under § 1983. As for the claim of

inadequate notice, the district court concluded that Burns was

afforded adequate and timely noti ce of the Board hearings in

compliance with due process standards.

Burns contends that three u nnamed individual members of the

Board conspired to put her out of business because her husband owed

a substantial amount in bond forfeiture judgments incurred on his

license. She contends that the Board is indeed liable for the

actions of its individual members (conspiracy, failure to provide

her with a transcript, notifying the state court of appeals that

Burns had a final judgment on a bond forfeiture on appeal) when

those actions represent actions by the Board. Finally, Burns

argues that notice that a meeting will be held and publication of

a statute are inadequate notice in this case that a property right

will be taken because the Board could provide more specific notice.

Considering first the conspiracy and Board liability claims,

we note that Burns sued the Board, not the members individually.A conspiracy necessarily involves two or more persons; it is

elementary that an entity cannot conspire with itself. S ee

Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir.1994) (a school

board and its employees constitute a single legal entity which is

incapable of conspiring with itself). The district court correctly

determined that the separate actions of individual members of the

Board are not sufficient to bind the Board as an entity. B ee

County v. Roberts, 437 S.W.2d 62, 64 (Tex.Civ.App.—Corpus Christi

1968, no writ); R owan v. Pickett, 237 S.W.2d 734, 738

(Tex.Civ.App.—San Ant onio 1951, no writ). Pursuant to the Bail

Bond Act, the Board c an take action only when a quorum of four

members is present. Bail Bond Act § 5(d). A governmental entity

cannot be held vicariously liable for the alleged constitutional

wrongs of its employees, and is only liable when it can be fairly

said that the entity itself is the wrongdoer. Collins v. City of

Harker Heights, 503 U.S. 115, 121-22, 112 S.Ct. 1061, 1066-67, 117

L.Ed.2d 261 (1992).

As for Burns's challenge to the notice provided her by the

Board, in essence Burns asks us to insert additional notice

provisions into the Bail Bond Act not contemplated by the Texas

Legislature. Procedural due process consists of notice and the

opportunity to be heard. C leveland Bd. of Educ. v. Loudermill, 470

U.S. 532, 542, 10 5 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985). Due

process "requires only notice that is both adequate to apprise a

party of the pendency of an action affecting its rights and timely

enough to allow the party to present its objections." M atter of

Christopher, 28 F.3d 512, 519 (5th Cir.1994).The Board provided notice in accordance with the Texas Open

Meetings Act, Tex.Gov't Code § 551.001. Notice is given in

compliance with due process standards simply by the publication of

a statute. B reath v. Cronvich, 729 F.2d 1006, 1011 (5th Cir.),

cert. denied, 469 U.S. 934, 105 S.Ct. 332, 83 L.Ed.2d 268 (1984).

Persons asserting a property right, as Burns does in her bail bond

license, are charged with knowledge of relevant statutory

provisions affecting the control or disposition of that property.

Id. We conclude that the district court correctly determined that

Burns received adequate and timely notice under the Bail Bond Act.

3. Absolute Immunity of the Board

The district court determined that the Board was entitled to

absolu te immunity with respect to rejecting or revoking Burns's

licenses. As the foregoing discussion has resolved each of Burns's

claims, we need not reach this issue, and we decline to do so.

IV. CONCLUSION

For the foregoing reasons, the district court's award of

summary judgment to the Harris County Bail Bond Board on the merits

of the claims brought by Carol Burns is AFFIRMED.