United States Court of Appeals

for the Fifth Circuit

No. 19-40664

Bernice Garza, 

Plaintiff—Appellant,

versus

Omar Escobar, Jr., in his official capacity as District Attorney and in his 

personal capacity; Starr County, Texas, 

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:18-CV-249

Before Southwick, Costa, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

Bernice Garza was the Crime Victims Unit Coordinator for the 229th 

Judicial District Attorney’s Office, which covers Duval, Jim Hogg, and Starr 

Counties in south Texas. She was fired because of political disagreements 

with her boss, Omar Escobar, Jr., the District Attorney. The district court 

dismissed her First Amendment claim, concluding Garza could be subjected 

to patronage dismissal without violating the Constitution. We affirm.

United States Court of Appeals

Fifth Circuit

FILED

August 28, 2020

Lyle W. Cayce

Clerk

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I.

Because the case was dismissed under Federal Rule of Civil Procedure 

12(c), we accept all well-pled facts in Garza’s complaint as true. See Guidry 

v. Am. Public Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007).

A.

In happier times, Garza and Escobar “were friends and were aligned 

with respect to local politics.” Garza and her sister, Leticia Garza Galvan 

(“Galvan”), helped Escobar with his successful 2012 campaign for District 

Attorney. In 2015, Escobar hired Garza to serve as the Coordinator of the 

Crime Victims Unit (“CVU”) for the DA’s office. Her job was to help crime 

victims, for instance by securing them counseling services and preparing 

them to testify at trial. As CVU Coordinator, Garza led the department, 

supervising five employees, onboarding interns, and managing the office’s 

grant process. Garza received two raises during her tenure, both approved by 

Escobar. While serving as CVU Coordinator, she worked on Escobar’s 2016 

reelection campaign and was “placed in a position of confidence between 

Escobar and the other persons working for his campaign.” Following his 

reelection, Escobar continued to involve Garza in his political plans, 

discussing with her which candidates to support for local offices.

Soon after, however, Garza’s relationship with Escobar “began to 

deteriorate” because “Escobar objected to the political views and activities 

of [Garza] and her family.” Specifically, Escobar did not want Garza’s sister, 

Galvan, to run for office because it would disrupt his own political plans.

Escobar badgered Garza about this daily, to the point that she had to take 

medication to quell her distress. In April 2017, after Garza told a co-worker 

she wanted to quit, Escobar demanded to meet with her. At the meeting, 

“Escobar continued criticizing [Galvan] and her decisions, and tried to 

convince [Garza] that she should be the one running for office rather than her 

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sister.” Garza told Escobar she wanted to do her job without politics 

intruding.

Around this time, a separate dispute developed between Escobar and 

Galvan over replacing a local school’s athletic director. Galvan, a member of 

the school district’s Board of Trustees, voted in a way that rankled Escobar 

and “[t]his was apparently too much for . . . Escobar to bear.” Escobar 

warned Galvan that, if she ran for office, she would lose because he would not 

help her. He also reminded her that he employed her sister, which Galvan 

viewed as a threat to retaliate against Garza.

Things continued south. In August 2017, Escobar blamed Garza for an 

assistant DA’s decision not to run for county judge. Escobar “did not speak 

to [Garza] for several days,” blaming her for putting his political plans “in 

tatters.” In September 2017, Escobar ordered Garza to “barge into” a 

meeting between the County Auditor and two assistant DAs, but she refused. 

She later denied knowing anything about the meeting, further angering 

Escobar. Garza reminded Escobar that she would not discuss politics, but he 

warned her that any work on her sister’s campaign had to be done outside the 

office. After this, Escobar “ceased communication” with Garza and would 

talk only to Garza’s subordinates. Escobar ordered her subordinates to help 

him prepare for trial, work Garza used to do herself. Nonetheless, Garza 

“would still help them prepare, but without Escobar’s knowledge.”

In October 2017, Galvan kicked off her campaign for county judge.

“Escobar suddenly decided to throw all in with [Galvan’s opponent’s] 

slate,” and soon “began sending cryptic messages intended to intimidate 

[Garza] from assisting her sister’s campaign.” In December 2017, Escobar 

sent Garza a message referring to a new Texas Election Code amendment 

that increased penalties for election offenses. “Escobar vaguely warned that 

there would be arrests made.” “At this point, [Garza] . . . was working mostly 

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half-days” and “[t]he atmosphere was tense and awkward around the office 

with no communication with Escobar.” Garza then requested a two-and-ahalf month leave of absence, without pay, which Escobar approved. During 

her time away, Garza worked on her sister’s campaign.

Garza returned to the office March 19, 2018, and immediately asked 

to meet with Escobar. Escobar’s response was to order an investigator to bar

Garza from the office. Minutes later, a court officer escorted Garza off the 

premises. The human relations department told Garza she had been 

“suspended without pay pending the outcome of a current election fraud 

investigation in Starr County.” Garza later learned her employment was

terminated on April 4, 2018.

B.

Garza sued both Escobar and Starr County (collectively, 

“Defendants”) in federal district court under 42 U.S.C. § 1983, alleging 

political retaliation in violation of the First Amendment. Defendants moved 

for judgment on the pleadings, arguing that Garza’s government position was 

subject to “patronage dismissal” and therefore not entitled to First 

Amendment protection. Escobar also asserted qualified immunity.

The district court, in a careful and thorough opinion, granted 

Defendants judgment on the pleadings, holding Garza was not entitled to 

First Amendment protection. Specifically, the court concluded that political 

loyalty was an appropriate requirement for Garza’s position as CVU 

Coordinator and that she was therefore subject to patronage dismissal. See, 

e.g., Wiggins v. Lowndes Cty., Miss., 363 F.3d 387, 390 (5th Cir. 2004) 

(patronage dismissal may survive First Amendment challenge when 

“political allegiance ‘is an appropriate requirement for the effective 

performance of the public office involved’”) (quoting Branti v. Finkel, 445 

U.S. 507, 518 (1980)). In the alternative, the court ruled that Escobar would 

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be shielded by qualified immunity. See, e.g., Gentry v. Lowndes Cty., Miss., 337 

F.3d 481, 487 (5th Cir. 2003) (qualified immunity may be warranted in 

“political patronage” cases where controlling authority does not settle 

propriety of dismissal in “sufficiently analogous” situations) (quoting 

Gunaca v. Texas, 65 F.3d 467, 475 (5th Cir. 1995)). Finally, the court 

dismissed Garza’s claim against Starr County given the lack of an underlying 

constitutional violation, and also because Garza identified no official county 

policy or policymaker as the moving force behind any alleged violation. See, 

e.g., Delano-Pyle v. Victoria Cty., Tex., 302 F.3d 567, 574 (5th Cir. 2002) 

(discussing prerequisites for municipal liability under § 1983); see also Monell 

v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978) (same).

Garza timely appealed.1

II.

We review dismissal under Rule 12(c) de novo. Machete Prods., LLC v. 

Page, 809 F.3d 281, 287 (5th Cir. 2015) (citing Bryant v. Military Dep’t of 

Miss., 597 F.3d 678, 684 (5th Cir. 2010)). “A motion brought pursuant to 

[Rule] 12(c) is designed to dispose of cases where the material facts are not 

in dispute and a judgment on the merits can be rendered by looking to the 

substance of the pleadings and any judicially noticed facts.” Great Plains Tr. 

Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 

2002) (quoting Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 

1 Defendants contest our appellate jurisdiction because, they say, Garza’s 

Notice of Appeal (“NOA”) was untimely. A motions panel of this court has rejected 

that argument once, and we reject it again. Garza timely filed a NOA following denial 

of her Rule 59(e) motion. See Fed. R. App. P. 4(a)(4)(A); see also United States v. One 

1988 Dodge Pickup, 959 F.2d 37, 40 (5th Cir. 1992) (“Any motion that draws into 

question the correctness of the judgment is functionally a motion under Rule 59(e).”

(cleaned up)).

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(5th Cir. 1990)); see also 5A WRIGHT & MILLER, FED. PRAC. AND PROC.

§ 1367, at 509–10 (1990). “The standard for dismissal under Rule 12(c) is the 

same as that under Rule 12(b)(6).” Hale v. Metrex Research Corp., 963 F.3d 

424, 427 (5th Cir. 2020). “To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to state a claim to relief 

that is plausible on its face.” Id. (quoting Edionwe v. Bailey, 860 F.3d 287, 291 

(5th Cir. 2017)). “[B]ut we are not bound to accept as true a legal conclusion 

couched as a factual allegation.” Johnson v. Johnson, 385 F.3d 503, 529 (5th 

Cir. 2004) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

III.

As a threshold matter, Garza contends the district court erred in 

disposing of the case on a Rule 12(c) motion. She claims our decision in 

Burnside v. Kaelin, 773 F.3d 624 (5th Cir. 2014), requires denying a Rule 12(c) 

motion when the claim requires analysis under Pickering v. Board of Education, 

391 U.S. 563 (1968). Pickering asks courts, when evaluating First Amendment 

retaliation claims, to balance “the interests of the [employee], as a citizen, in 

commenting upon matters of public concern and the interest of the State, as 

an employer, in promoting the efficiency of the public services it performs 

through its employees.” Connick v. Myers, 461 U.S. 138, 142 (1983) 

(alteration in original) (quoting Pickering, 391 U.S. at 568). We disagree.

In Burnside—which also involved a First Amendment retaliation 

claim—we said that “[i]n stating a prima facie case at the motion-to-dismiss 

stage of a case, there is a rebuttable presumption that no balancing is required 

to state a claim.” 773 F.3d at 628. But we immediately explained that 

statement: “[t]he rebuttable presumption applies because reasonable 

inferences drawn from a complaint, obviously drafted by the aggrieved 

employee, will generally lead to a plausible conclusion that the employee’s 

interest in commenting on matters of public concern outweighs the 

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employer’s interest in workplace efficiency.” Id. (emphasis added). We then 

determined that the complaint in that case contained nothing indicating that 

the plaintiff’s interest in commenting on an election was outweighed by the 

employer’s interest in an efficient workplace. Id.

Burnside does not preclude disposing of this case at the Rule 12(c) 

stage. To begin with, unlike Burnside, this case does not involve a “pure” 

Pickering analysis. As explained below, see infra IV(A)(2)–(3), because Garza 

functioned as a policymaker, her dismissal was allowed as long as the 

pleadings show her political activities “in some way adversely affect[ed]” the 

functioning of the DA’s office. See Vojvodich v. Lopez, 48 F.3d 879, 887 (5th 

Cir. 1995). Thus, there is more to the inquiry here than a pure weighing of 

interests as was the case in Burnside, so Burnside is not on point.

And in any event, Burnside says only that there is a rebuttable 

presumption at the motion-to-dismiss stage that no balancing is needed to 

state a First Amendment retaliation claim. But, as Burnside explains, that 

presumption may be rebutted when “reasonable inferences drawn from a

complaint” do not plausibly show that the employee’sinterests outweigh the 

employer’s. 773 F.3d at 628. In such a case, Pickering balancing can be 

performed at the motion-to-dismiss stage. That makes sense because

“[a]pplication of the Pickering balancing test is a question of law,” Bickel v. 

Burkhart, 632 F.2d 1251, 1256 (5th Cir. 1980), and it would be “illogical to 

say that something is a question of law, and that it is reviewed de novo, yet 

that it can never be decided on the pleadings.” Weisbuch v. Cty. of Los Angeles, 

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119 F.3d 778, 783 n.1 (9th Cir. 1997). For that reason, our court has previously 

applied Pickering balancing at the pleading stage, as have other circuits.2

To put things more bluntly: if a plaintiff pleads her way into Pickering 

balancing, Burnside does not require courts to ignore the very facts she pled—

indeed, at this stage, the court must accept them as true. See Hale, 963 F.3d at 

427. Here, the district court concluded that, based on the detail provided by

Garza’s allegations, balancing the parties’ interests was not precluded at the 

Rule 12(c) stage. We agree, and thus proceed to the merits.

IV.

Garza argues that the district court erred in dismissing her case based 

on the “patronage dismissal exception” to First Amendment retaliation 

claims. She also argues that the court erred in dismissing her municipal 

liability claims against Starr County. We hold that Garza’s position as CVU

Coordinator is one for which “party affiliation is an appropriate requirement 

for effective performance,” Branti, 445 U.S. at 518, and the First 

Amendment thus did not shield her from dismissal. Our second holding flows 

from the first: because Garza has not plausibly alleged a constitutional claim, 

her municipal liability claim was also properly dismissed. We therefore affirm 

the district court’s judgment.

A.

1.

We assume, without deciding, that Garza plausibly pled a prima facie 

claim of First Amendment retaliation. See Maldonado v. Rodriguez, 932 F.3d 

2 See Phillips v. City of Dallas, 781 F.3d 772 (5th Cir. 2015); see also, e.g., Jackler 

v. Byrne, 658 F.3d 225 (2d Cir. 2011) (Pickering analysis done on a Rule 12(c) motion);

Jordan v. Carter, 428 F.3d 67 (1st Cir. 2005) (same); Edwards v. City of Goldsboro, 178 

F.3d 231 (4th Cir. 1999) (same).

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388, 391 (5th Cir. 2019) (“A First Amendment political retaliation claim 

requires proof that a plaintif (a) suffered an adverse employement action 

(b) because of (c) his ‘speech or activity related to a matter of public 

concern.’”) (quoting Aucoin v. Haney, 306 F.3d 268, 274 (5th Cir. 2002)). 

The dispute here is whether Garza’s former position nevertheless falls within 

the patronage dismissal exception to the First Amendment’s protection.

“[B]ecause ‘political belief and association constitute the core of 

those activities protected by the First Amendment,’ the practice of patronage 

dismissals ‘clearly infringes First Amendment interests.’” Aucoin, 306 F.3d 

at 272 (quoting Elrod v. Burns, 427 U.S. 347, 356, 360 (1976)). But if “an 

employee’s private political beliefs would interfere with the discharge of his 

public duties, his First Amendment rights may be required to yield to the 

State’s vital interest in maintaining governmental effectiveness and 

efficiency.” Branti, 445 U.S. at 517. 

To find shelter under the First Amendment, Garza must show that 

the speech or activity at issue—here, campaigning for her sister—implicated

an issue of public concern. Vojvodich, 48 F.3d at 884. Plainly it did. Id. at 885; 

Aucoin, 306 F.3d at 274. Defendants “then must establish that [the 

government’s] interest in promoting the efficiency of the services provided 

by its employees outweighs [Garza]’s interest in engaging in the protected 

activity.” Vojvodich, 48 F.3d at 885; see also Maldonado, 932 F.3d at 391. 

“This analysis in reality is a sliding scale or spectrum upon which ‘public 

concern’ is weighed against disruption.” Vojvodich, 48 F.3d at 885; see also 

Maldonado, 932 F.3d at 392.

“When nonpolicymaking, nonconfidential employees are discharged 

solely because of their private political views, little, if any weighing of an 

employee’s First Amendment rights against an employer’s right to loyal and 

efficient service is necessary, and the employee’s rights will usually prevail.” 

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Id. at 392 (quoting Gentry, 337 F.3d at 485–86). On the other end of the 

spectrum, though, “are cases where employees’ exercise of First 

Amendment privileges clearly over-balanced [their] usefulness.” Id.

(alteration in original) (quoting Gentry, 337 F.3d at 485–86). When “public 

employees . . . occupy policymaker or confidential positions . . . the 

government’s interests more easily outweigh the employee’s.” Brady v. Fort

Bend Cty., 145 F.3d 691, 707–08 (5th Cir. 1998).

Policymakers are “public employees whose responsibilities require 

more than simple ministerial competence, whose decisions create or 

implement policy, and whose discretion in performing duties or in selecting 

duties to perform is not severely limited by statute, regulation, or policy 

determinations made by supervisors.” Aucoin, 306 F.3d at 273 (quoting 

Stegmaier v. Trammell, 597 F.2d 1027, 1035 (5th Cir. 1979)). Employees may 

be policymakers if they “control[] or exercise[] a role in a decision making 

process as to the goals and general operating procedures of (an) office.” Id.

(quoting Stegmaier, 597 F.2d at 1035). Whether an employee’s

“responsibilities . . . are not well defined or are of broad scope” is also 

illuminating. Elrod, 427 U.S. at 367–68. 

A government employee may be “confidential” “if he or she stands 

in a confidential relationship to the policymaking process, e.g., as an advisor 

to a policymaker, or if he or she has access to confidential documents or other 

materials that embody policymaking deliberations and determinations, e.g., 

as a private secretary to a policymaker.” Maldonado, 932 F.3d at 393 (quoting 

Wiggins, 363 F.3d at 391). 

Concluding an employee occupies a confidential or policymaking role, 

however, does not completely answer whether the employee can properly be 

subject to patronage dismissal. See Vojvodich, 48 F.3d at 884. While the labels 

“policymaker” and “confidential” are helpful, “the [ultimate] question is 

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whether the hiring authority can demonstrate that party affiliation is an 

appropriate requirement for effective performance of the public office 

involved.” Branti, 445 U.S. at 518. We make that determination based on the 

specific facts of each case. See Maldonado, 932 F.3d at 392 (“The balancing 

test is case-specific.”).

2.

Our first task is to determine whether Garza functioned as a 

confidential employee or a policymaker when she worked as the CVU 

Coordinator. We conclude that she did. Our court has not previously 

examined this specific position, but our decisions guide our inquiry.

In McBee v. Jim Hogg County, we held that a sheriff’s law enforcement 

staff—comprised of six deputies and four dispatchers—were subject to 

patronage dismissal. 703 F.2d 834, 841 (5th Cir. 1983). This was so, we 

reasoned, because they were “individuals . . . responsible for ensuring that 

the sheriff’s policies were properly implemented,” they “were 

representatives of [the] sheriff to the public,” they “were involved in 

virtually every law enforcement activity, usually acting alone without 

supervision,” and they performed work “closely on a personal and 

confidential basis.” Id. at 842. We found “it difficult to imagine how such an 

office could have effectively carried out its vitally important duties in the 

public trust when the sheriff did not have absolute confidence in his small 

staff.” Id.

In Aucoin v. Haney, we joined our sister circuits and held that “an 

assistant district attorney falls within the Elrod-Branti policymaker 

exception.” 306 F.3d at 276. We noted the “broad discretionary powers” 

vested in district attorneys under Louisiana law and that assistant district 

attorneys “may perform the duties of officials under whom they serve”—

i.e., the district attorney. Id. at 275. Further, the plaintiff oversaw and “had 

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great discretion in handling the misdemeanor docket” and performed his 

duties with little direct supervision from the district attorney. Id. at 276. 

Given the breadth and independence of the plaintiff’s duties, we concluded 

he functioned as a policymaker. Id.

In Maldonado v. Rodriguez, we held that the commander and assistant 

commander of a drug trafficking area task force, as well as department 

investigators, were likely not protected from patronage dismissal. 932 F.3d at 

392. We noted that even though those positions were “perhaps not as 

intimately connected with the DA’s duties as assistant prosecutors,” they 

“held more responsible and discretionary positions than ordinary 

investigators.” Id. at 395. We observed that our “case law strongly suggests 

that certain employees in the District Attorney’s office, in addition to 

assistant DAs, must be terminable for their political activity,” when they 

“have significant discretion or input into deciding what kinds of crimes to 

pursue with limited resources, which cases to pursue, how to conduct 

investigations, executions of warrants and arrests, and whether to 

recommend lenient or severe punishments.” Id. at 394. We also explained

that “the prosecutorial function of the [DA] is laden with ideological content 

which is the subject of public debate and electoral choices,” that “the office 

must be sensitive to [the elected DA]’s policy demands as represented to the 

voters[,] . . . [a]nd the DA is ultimately responsible for every interaction 

between his office and the public.” Id. (cleaned up).

In contrast, we have also examined positions that were not 

confidential or policymaking. In Wiggins v. Lowndes County, for example, we 

held that a county road foreman was neither. 363 F.3d at 392. We observed

that the plaintiff merely implemented projects determined by superiors; 

assigned work to the road crew and supervised work in the field; inspected 

equipment; maintained records; inspected roads and bridges; and performed 

other assigned duties. Id. at 391. Likewise, he had no access to confidential 

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documents, could not create personal liability for his superiors, and had a 

measure of protection from the Board of Supervisors. Id. These factors 

demonstrated that the employee did not function as a policymaker or 

confidential employee. Id.

Applying our precedents thus leads us to conclude that Garza 

functioned as a policymaker and confidential employee in her work as CVU 

Coordinator. This position is a creature of Texas law. See TEX. CODE CRIM.

PROC. art. 56.04(a).

3 The coordinator’s duty is to ensure that victims of 

crimes are “afforded the rights granted victims, guardians, and relatives” by 

Texas law.4 Id. (b). In discharging that responsibility, the coordinator is to 

“work closely with appropriate law enforcement agencies, prosecuting 

attorneys, the Board of Pardons and Paroles, and the judiciary.” Id.

Garza’s allegations underscore the breadth of her responsibilities. As

CVU Coordinator, she was “the head of that department” and supervised 

five other employees. As department head, she ultimately “shoulder[ed] the 

important responsibility of communicating with and assisting crime 

victims.” This work included, “[a]mong other things, . . . assist[ing] these 

vulnerable victims by securing counseling services and by preparing them for 

trial.” Garza took the lead in these important roles. In addition to those 

responsibilities, Garza was “the grant manager for the 229th Judicial District 

Attorney’s Office,” and she “prepar[ed] and manag[ed] grant requests.”

These allegations, together with her statutory duties, establish that 

Garza functioned as a policymaker and confidential employee as CVU 

3 “The district attorney, criminal district attorney, or county attorney who 

prosecutes criminal cases shall designate a person to serve as victim assistance 

coordinator in that jurisdiction.”

4 Texas law dedicates an entire chapter of the Code of Criminal Procedure to 

detailing the rights of crime victims. See TEX. CODE CRIM. PROC. art. 56.01 et seq.

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Coordinator. First, her responsibilities required much more than “simple 

ministerial competence,” see Aucoin, 306 F.3d at 273, and were broad in 

scope, see Elrod, 427 U.S. at 367; Aucoin, 306 F.3d at 276. This makes it 

“more likely” that she functioned as a policymaker. See Elrod, 427 U.S. at 

367–68. Although Garza tries on appeal to undersell the importance of her 

former position, her allegations demonstrate that she enjoyed substantial 

discretion in discharging her statutory duties. This supports a finding that 

she was a policymaker. See Aucoin, 306 F.3d at 273.

Second, Garza represented the DA’s office to crime victims. State law

and Garza’s own allegations demonstrate that she took the lead in ensuring 

that victims and their relatives enjoyed all the rights to which they are 

entitled. See TEX. CODE CRIM. PROC. art. 56.04(b). Garza was “responsible 

for ensuring that the [DA]’s policies were properly implemented” regarding 

the office’s interaction with crime victims. See McBee, 703 F.2d at 842. The 

importance of her duties is underscored by the allegation that, after the rift 

developed between Garza and Escobar, “the proper preparation of crime 

victims to testify at trial” was not executed as well as it should have been.

Third, Garza also represented the DA’s office in interactions with 

other members of the law enforcement community to secure victims’ rights. 

See TEX. CODE CRIM. PROC. art. 56.04(b). In her work with “law 

enforcement agencies, prosecuting attorneys, the Board of Pardons and 

Paroles, and the judiciary,” Garza was the public face of the DA’s office and 

responsible for implementing Escobar’s policy choices in those interactions.

Escobar was thus entitled to expect, “without question, undivided loyalty.” 

Stegmaier, 597 F.2d at 1040.

Fourth, Garza’s job responsibilities required her to work closely with 

government attorneys and handle sensitive, confidential information. Garza 

explained that her duties included preparing “vulnerable victims” for trial 

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and “securing counseling services” for them. She was also required to ensure 

that victims received the rights owed them under state law. See, e.g., TEX.

CODE CRIM. PROC. art. 56.02. In discharging these responsibilities, Garza 

would have handled sensitive information from victims and their families, 

and would have been required to maintain confidentiality in her work with 

the office’s attorneys. That close work with government attorneys supports 

the conclusion that she functioned as a confidential employee. See Aucoin, 

306 F.3d at 275.

Finally, Garza’s other responsibilities also illustrate her policymaking 

role. She was the office grant manager. She supervised several other 

employees. She was in charge of accepting interns. She had input regarding 

Escobar’s personnel decisions. These are responsibilities that we, as well as 

other courts, view as supporting the conclusion that an employee functioned 

as a policymaker. See Gentry, 337 F.3d at 488 (budgetary work supports

finding of policymaker); see also Peterson v. Dean, 777 F.3d 334, 347 (6th Cir. 

2015) (“[B]udgetary decisions are among the most significant, and the most 

political, actions which government officials take.”); Hobler v. Brueher, 325 

F.3d 1145, 1147 (9th Cir. 2003) (secretary who advised prosecutor regarding 

hiring decisions was confidential).

We conclude that Garza’s allegations, taken as true, together with the 

statutory description of her position, show she functioned as a policymaker 

and a confidential employee in her role as CVU Coordinator.

3.

The conclusion that Garza served a confidential and policymaking role 

helps, but does not end, our analysis. As explained, the ultimate inquiry in 

patronage dismissal cases is whether “party affiliation is an appropriate 

requirement for the effective performance of the public office involved.” 

Branti, 445 U.S. at 518. To answer that question, some of our cases also ask 

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whether “the employee’s activities in some way adversely affect[ed] the 

government’s ability to provide services.” Vojvodich, 48 F.3d at 887. We 

conclude that, on the facts alleged, Garza’s activities could have adversely 

affected—and did adversely affect—the DA’s ability to serve the public and 

that political affiliation is thus an appropriate requirement for the position.

In conducting this inquiry, a lack of evidence that actual disruption 

occurred is not dispositive because we do not require employers to wait until 

their office is disrupted before taking action. See Connick, 461 U.S. at 152.

Rather, where close working relationships are involved, courts accord “a 

wide degree of deference to the employer’s judgment.” Id. Close working 

relationships are crucial in public attorneys’ offices. See id. at 151–52; see also 

Lumpkin v. Aransas Cty., 712 F. App’x 350, 359 (5th Cir. 2017).

With those principles in mind, we conclude that Garza’s political 

affiliation and actions disrupted the work of the DA’s office. After Garza’s 

political actions, Escobar was unable to place absolute confidence in her

performance of her vital statutory duties. As discussed, Garza oversaw the 

office’s work with victims and their families. See TEX. CODE CRIM. PROC. 

art. 56.04(b). She was to “work closely with appropriate law enforcement 

agencies, prosecuting attorneys, . . . and the judiciary.” Id. In performing 

those duties, Garza was representing Escobar, the elected DA. He was thus 

entitled to her loyalty and needed confidence in her representation. See 

Aucoin, 306 F.3d at 276; see also Hobler, 325 F.3d at 1152 (prosecutor entitled 

to loyal secretaries who would carry out his policies). But the rift between 

them ruptured this trust. That breakdown would have impeded the DA’s 

provision of services to the public. “[I]t [is] difficult to imagine how [the 

DA’s] office could have effectively carried out its vitally important duties [to 

crime victims] when the [DA] did not have absolute confidence” in his CVU 

Coordinator. See McBee, 703 F.2d at 842. Further, Garza was tasked with 

“work[ing] closely” with, among other groups, “the judiciary.” Yet she was 

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actively seeking to unseat at least one judge by supporting her sister’s 

candidacy. It is easy to see that such a conflicting position may have 

hampered the ability of the DA’s office to discharge its duties.

Garza herself details how her activities “adversely affect[ed] the 

government’s ability to provide services.” Vojvodich, 48 F.3d at 887. Garza—

a department head—alleges that communication with Escobar broke down 

almost completely. After Escobar began shifting her work to other 

employees, Garza defied his wishes and contined to prepare witnesses for 

trial. This “undercurrent of duplicity” from a department head would 

unavoidably “impede the ‘close working relationships[]’ which the Supreme 

Court has specifically held to be crucial in public attorney’s offices.” 

Lumpkin, 712 F. App’x at 359. Further, Garza worked half-days and took a 

leave of absence that lasted over two months. Garza herself tells us what the 

result of all this was: “the proper preparation of crime victims to testify at 

trial” and “the efficient and effective functioning of the Crime Victims 

Unit”—a key department in the DA’s Office—was “sacrificed.”

Further supporting our conclusion, we have recognized that “[t]he 

political sensitivity of DA offices is reinforced in Texas law by statutory 

provisions that enable the DA to hire all office personnel required for the 

proper and efficient operation and administration of the office, render all 

such personnel subject to removal at will, and render investigators under the 

exclusive authority and direction of the prosecuting attorney.” Maldonado, 

932 F.3d at 394. “Once the DA is [elected], the office must be sensitive to 

that official’s policy demands as represented to the voters. . . . [T]he DA is 

ultimately responsible for every interaction between his office and the 

public.” Id. at 392. Here, Garza’s lack of loyalty led to a deterioration of her

working relationship with Escobar, and to her eventual defiance of his 

instructions. As we have detailed, this disobedience contravened her 

statutory duties, which included the obligation to “work closely with . . . 

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prosecuting attorneys” in securing the rights of crime victims. See TEX.

CODE CRIM. PROC. art. § 56.04(b). 

For these reasons, we conclude that Garza’s actions disrupted the 

efficient and effective functioning of the DA’s office and thus that her 

position is one for which political affiliation is an appropriate requirement.

See Branti, 445 U.S. at 518. Garza’s employment was therefore not shielded 

by the First Amendment, and, as the district court correctly concluded, she

was subject to patronage dismissal. Judgment on the pleadings in favor of 

Escobar on this issue was appropriate. See Fed. R. Civ. P. 12(c).5

B.

Garza also asserted a municipal liability claim against Starr County 

based on Escobar’s conduct, and an official capacity claim against Escobar.

The district court dismissed the municipal liability claim because Garza failed 

to plausibly allege a constitutional violation. It also dismissed the official

capacity claim as duplicative of the claim against Starr County.

The district court was correct in both regards. See Hicks-Fields v. 

Harris Cty., Tex., 860 F.3d 803, 808 (5th Cir. 2017) (“[E]very Monell claim 

requires an underlying constitutional violation.” (quotation marks omitted)); 

Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001) (official capacity 

claims properly dismissed where “allegations duplicate claims against the 

respective governmental entities themselves.”).6

5 Because we conclude that Garza was subject to the Elrod-Branti exception, we 

do not address Escobar’s alternative argument that he is entitled to qualified immunity 

from Garza’s § 1983 claims.

6 Garza briefly argues that her official capacity claim against Escobar was not 

duplicative of the claim against Starr County because Escobar’s office embraces two 

other counties. She cites no relevant legal authority supporting this proposition, and 

other than pointing out that the office covers three counties, offers no arguments as to 

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* * *

The judgment of the district court is AFFIRMED.

why the claims are not duplicative. She thus fails to demonstrate the district court 

erred. See Osborne v. Coleman Co., 602 F.2d 725, 726 (5th Cir. 1979) (appellant bears 

burden of convincing court of appeals that district court erred); see also Brinkmann v. 

Dallas Cty. Sheriff, 813 F.2d 744, 748 (5th Cir. 1987) (failure to offer substantive legal 

arguments “is the same as if [petitioner] had not appealed that judgment”).

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