IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TROY WILLMON, §

 §

Plaintiff, § No. 3:05-CV-1391-M

 §

v. § 

 § 

ROBERT DANIEL, RICKY WILSON, and §

CITY OF WAXAHACHIE, TEXAS, §

 §

Defendants. § 

 

MEMORANDUM OPINION AND ORDER

In a Memorandum Opinion and Order of June 19, 2006, this Court granted Defendants’

Motion for Summary Judgment in part, and reserved judgment as to several issues pending

supplemental briefing. Now before the Court is Defendants’ Supplemental Brief which

addresses the reserved issues: (1) whether summary judgment is warranted against Plaintiff Troy

Willmon’s 42 U.S.C. § 1983 claim that Defendants deprived him of a property interest in

continued government employment, and (2) whether summary judgment is warranted against

Willmon’s § 1983 claim that the City of Waxahachie (“City”) effectively evicted him from his

home and separated him from his wife without due process. The Court concludes that summary

judgment is warranted against both claims and accordingly GRANTS the reserved portion of

Defendants’ Motion for Summary Judgment.

BACKGROUND

Plaintiff Troy Willmon was a licensed law enforcement officer working for Ellis County

at all times relevant to this suit. On the evening of November 22, 2003, his wife, Candace

Harbin, placed an emergency phone call regarding an altercation between herself and her

 

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 The Municipal Judge was acting as a Magistrate at all relevant times pursuant to article 2.09 of the Texas Code of 1

Criminal Procedure.

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husband. Sergeant Ricky Wilson and Officer Robert Daniel, employees of the City, responded to

the call shortly after 8:00 p.m. Wilson and Daniel arrested Willmon and filed charges for

“Assault by Contact—Family Violence.” Willmon spent a night in jail and appeared the next

day, at approximately 1:00 p.m., before a Municipal Judge, who advised him that “an Order of 1

Emergency Protection was being issued against him.” The Municipal Judge “fully explained the

Order of Emergency Protection and that it prohibited [Willmon] from going to or within 150 feet

of victim Candace Harbin’s home or place of employment for thirty-one (31) days.” The

Municipal Judge asked Willmon if he had any questions. “After allowing [Willmon] the

opportunity to ask questions and be heard, [Willmon] signed the Order for Emergency Protection

acknowledging receipt thereof.” 

On July 13, 2005, Willmon filed this lawsuit, asserting a number of claims largely

dismissed by the Court in its previous Memorandum Opinion and Order. Based on the

supplemental briefing, only two issues remain for the Court to determine: whether there is a

genuine issue of material fact as to (1) whether Willmon had a property interest in continued

employment as an Ellis County law enforcement officer, and (2) whether the process Willmon

received before issuance of the Order of Emergency Protection was constitutionally adequate. 

The Court addresses each issue in turn. 

ANALYSIS

A. Employment Claim

Willmon claims that Defendants deprived him of continued government employment

 

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without due process while facing the allegedly unwarranted charges levied against him. It is

beyond doubt that certain public employees enjoy a property interest in their continued

employment, the deprivation of which is subject to the strictures of due process. See Muncy v.

City of Dallas, 335 F.3d 394, 398 (5th Cir. 2003). “However, a property interest is not incidental

to public employment, instead it must be created by an independent source, such as state law.” 

Id. Defendants argue that Willmon did not possess a property interest in continued employment

and that, therefore, his § 1983 claim must fail. Willmon, now appearing pro se, does not

respond. After carefully reviewing the City’s position, the Court agrees with the City.

Employment in Texas is presumptively at-will: “absent a specific agreement to the

contrary, employment may be terminated by the employer or the employee at will, for good

cause, bad cause, or no cause at all.” Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d

501, 502 (Tex. 1998). Therefore, there is no property interest in continued government

employment in Texas unless the at-will relationship is “altered by contract or by express rules or

policies limiting the conditions under which an employee may be terminated.” Muncy, 335 F.3d

at 398 (citations omitted); see also Schultea v. Wood, 27 F.3d 1112, 1116 (5th Cir. 1994). 

Defendants’ evidence indicates that Willmon’s employment was at-will. The Human

Resources Director for Ellis County confirms that “[p]ursuant to Ellis County Personnel Policy

attached hereto, all Ellis County employees are at-will employees,” and that Willmon was such

an employee. Sections 1.05 and 14.05 of the Ellis County Personnel Policy confirm her

statement. Section 1.05 provides, in relevant part, that Ellis County “shall retain the right to

terminate the employment of any individual at any time, for any reason, with or without notice.” 

Section 14.05 provides that “Ellis County employees are employees at will and may be

 

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terminated at any time.” Willmon did not respond to Defendants’ supplemental briefing, and no

prior pleadings contain any argument or evidence that contradicts or raises a material issue of fact

with respect to Defendants’ claims regarding Willmon’s at-will employment. Thus, the Court

finds that there is no genuine issue of fact that Willmon was an at will employee. Accordingly,

as a matter of law, he had no property interest in continued employment with Ellis County. The

Court GRANTS summary judgment with respect to Willmon’s employment claims, which are

hereby DISMISSED WITH PREJUDICE.

B. Eviction and Separation Claims

Willmon claims that the Order of Emergency Protection (“OEP”) infringed his property

interest in freedom from eviction from his home and from separation from his wife, and that it

was issued without constitutionally adequate process. Specifically, he avers that the hearing

conducted prior to issuance of the OEP was held without sufficient notice or opportunity to be

heard. The Court previously held, in the Memorandum Opinion and Order of June 19, 2006, that

the OEP implicated Willmon’s right to the unrestricted use and enjoyment of his home, and the

City concedes in its supplemental briefing that it also implicated Willmon’s marital liberty

interest. See United States v. James Daniel Good Real Prop., 510 U.S. 43, 53–54 (1993) (a

person’s “right to maintain control over his home, and to be free from governmental interference,

is a private interest of historic and continuing importance”); Drummond v. Fulton County Dep’t

of Family & Children’s Servs., 547 F.2d 835, 851–52 (5th Cir. 1977) (“Marriage is one of the

‘basic civil rights of man,’ fundamental to our very existence and survival.”). Willmon was

therefore entitled to some form of process prior to the deprivation of these property interests. 

Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

 

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“The fundamental requirement of due process is the opportunity to be heard ‘at a

meaningful time and in a meaningful manner.’” Id. (quoting Armstrong v. Manzo, 380 U.S. 545,

552 (1965)). “It is firmly established . . . that due process requires notice of the reasons for a

proposed deprivation and some opportunity to respond to the substance of the allegations before

a final deprivation occurs.” Eguia v. Tompkins, 756 F.2d 1130, 1139 (5th Cir. 1985). Due

process is not, however, “a technical conception with a fixed content unrelated to time, place and

circumstances.” Eldridge, 424 U.S. at 334 (quoting Cafeteria & Rest. Workers Union v.

McElroy, 367 U.S. 886, 895 (1961)) (internal quotation marks omitted). Rather, the process

required turns on the consideration of three factors:

First, the private interest that will be affected by the official action; second, the risk

of an erroneous deprivation of such interest through the procedures used, and the

probable value, if any, of additional or substitute procedural safeguards; and finally,

the Government’s interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement would

entail.

Eldridge, 424 U.S. at 335. Though there are “extraordinary situations” in which the opportunity

to be heard may be postponed until after deprivation of the property or liberty interest at issue,

due process typically involves a pre-deprivation hearing. Eguia, 756 F.2d at 1139; see also

James Daniel Good Real Prop., 510 U.S. at 53 (“The right to prior notice and a hearing is central

to the Constitution’s command of due process.”). Here, the City does not contend that a postdeprivation hearing was used; rather, it argues that the pre-deprivation hearing furnished to

Willmon satisfied the requirements of due process. The Court analyzes the City’s claim under

the Eldridge framework.

The first Eldridge factor focuses on the property interests of Willmon at issue. As

indicated above, the Court previously found that the OEP implicated Willmon’s freedom to use

 

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and enjoy his home, and the City concedes implication of his marital interest. Additionally, the

Court finds that the property interest in one’s home, and the freedom to use and enjoy it, is of

“historic and continuing importance,” and weighs heavily in the Eldridge balance. James Daniel

Good Real Prop., 510 U.S. at 53–54. 

The second Eldridge factor centers on “the risk of an erroneous deprivation of such

interest[s] through the procedures used, and the probable value, if any, of additional or substitute

procedural safeguards.” Eldridge, 424 U.S. at 335. Neither party specifically addresses this

factor, although the City avers that the notice and opportunity to be heard given to Willmon

adequately safeguarded his constitutional interests. 

The Court notes that the Municipal Judge who presided over Willmon’s pre-deprivation

hearing advised Willmon that an OEP was being issued against him. Further, she explained to

Willmon the OEP and the limitations it imposed upon him. After being given an opportunity to

be heard and ask questions, Willmon signed the OEP without protest.

With these facts in mind, the Court considers the City’s claim that the process accorded to

Willmon was sufficient to prevent an erroneous deprivation of his liberty interests. The Court

concludes that Willmon was provided sufficient notice and an opportunity to be heard. He had

the benefit of a hearing before a municipal judge, at which he was allowed to participate and be

heard after having the proposed deprivation fully explained to him. See generally United States

v. Falzone, No. 3:97-CR-142, 1998 WL 351471, at *2 (D. Conn. June 2, 1998) (“courts have

clearly stated that due process is not vitiated if a person fails to take advantage of an existing

opportunity to participate”). The Court notes that routinely in domestic violence cases, ex

parte short term temporary restraining orders are issued, followed by a timely post-deprivation

 

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hearing. See Blazel v. Bradley, 698 F. Supp. 756, 760 (W.D. Wis. 1988) (noting that thirty-seven

states provide for the ex parte issuance of temporary restraining orders in domestic violence

situations). This does not alter the Court’s conclusion that Willmon received constitutionally

adequate process.

Consideration of the third Eldridge factor confirms the Court’s conclusion. The City’s

interest in forcefully and effectively combating domestic violence is undoubtedly strong; so

much so that the haste required to satisfy it has justified the ex parte issuance of temporary

restraining orders. See Blazel, 698 F. Supp. at 757; Schramek v. Bohren, 429 N.W.2d 501,

505–06 (Wis. Ct. App. 1988); Nollet v. Justices of the Trial Court, 83 F. Supp. 2d 204, 213–14

(D. Mass. Jan. 27, 2000). Where the government’s interest is significant enough to justify the ex

parte issuance of temporary restraining orders that effectively deprive constitutional property

interests without any process for a short period of time, the Court is compelled to find that the

pre-deprivation hearing in this case satisfied the requirements of due process. Accordingly,

Defendant’s Motion for Summary Judgment is GRANTED as to Willmon’s due process claim.

CONCLUSION

Defendants’ Motion is GRANTED as to all reserved issues. Therefore, all of Willmon’s

remaining claims are DISMISSED. 

SO ORDERED.

February 20, 2007.

__________________________________

BARBARA M. G. LYNN

UNITED STATES DISTRICT JUDGE

NORTHERN DISTRICT OF TEXAS

 

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