IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-41394

Summary Calendar

GEORGE BERGIN,

Plaintiff – Appellant

v.

LEWIS B. TATUM,

Defendant – Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:11-CV-1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Appellant George Bergin appeals the district court’s grant of summary

judgment on qualified immunity grounds for defendant Lewis B. Tatum. We

AFFIRM.

FACTS AND PROCEDURAL HISTORY

At around 5:30 p.m. on November 19, 2009, Kimberly Simpson, a City of

Sulphur Springs police officer, was dispatched to an area of Highway 19 in

United States Court of Appeals

Fifth Circuit

F I L E D

December 6, 2013

Lyle W. Cayce

Clerk

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

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

R. 47.5.4.

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Sulfur Springs, located in Hopkins County, Texas, where ten to thirteen head of

cattle were roaming. The cattle were not branded or tagged. The police

department contacted approximately six potential owners of the cattle. 

According to Simpson, Carolyn Bergin arrived on the scene and stated that the

cattle did not belong to her brother, appellant George Bergin (“Bergin”). Bergin

disputes that Carolyn Bergin made this statement, but admits that “I don’t know

what she said to the police. I wasn’t there at the time.”

Simpson ran the cattle into a wooded area, but a few hours later, she

received a call that they had wandered back to the area around the highway. 

She advised dispatch to send Rocky Rivera, a Hopkins County impound officer,

to round up and impound the cattle. Rivera arrived on the scene and

transported four head of cattle to his impound lot. During the impound process,

one of the cows ran into a pool and drowned, and three remained at large. 

The next day, November 20, 2009, George Bergin called Rivera asking to

inspect the cattle. Rivera was out of town, but gave Bergin directions to the

impound lot and told him that the impound fee was $950.1 Rivera told Bergin

that “if the cattle were his, he must pay the impound fee before he could take the

cattle off of the impound lot.” Later that day, Rivera returned to the impound

lot and found that the cattle were gone. Bergin admitted that he had taken his

trailer to the lot and took the cattle. 

Rivera called the Hopkins County Sheriff’s Office to report the missing

cattle. Criminal investigator Lewis B. Tatum interviewed Rivera, who said he

suspected that Bergin was responsible for the missing cattle. Rivera also told

Tatum about his conversations with Bergin. Tatum additionally interviewed

Officer Simpson, who reported Carolyn Bergin’s alleged statement that George

Bergin did not own the cattle.

1 According to Officer Simpson’s incident report, Rivera told Bergin the fee would be

$675.

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On November 24, 2009, Tatum called Bergin’s home, but Bergin’s mother

said that Bergin was too busy to speak. On November 30, Tatum spoke to

Bergin by telephone and Bergin admitted that he took the cattle from the

impound lot without paying the fee. Bergin also said that he was too busy to

meet with Tatum.

On December 2, 2009, Tatum filed a complaint against Bergin for Theft of

Livestock in violation of Texas Penal Code 31.03. The complaint read, in

relevant part, that Tatum

believe[s] that on or about the 20th day of November, 2009 . . .

George Bergin, hereinafter styled Defendant, did then and there

unlawfully appropriate, by acquiring and otherwise exercising

control over, property, to-wit: less than ten head of cattle, of the

value of less than $20,000, from Rogue Rivera, the owner thereof,

and with intent to deprive the owner of the property. 

My reason for believing that the above Defendant committed the

above offense is based upon evidence which I obtained in my official

capacity as a peace officer during my investigation of this offense. 

Further, cattle impounded by Sulphur Springs Police Department,

after having been disclaimed by [Carolyn] Bergin, acting as agent

for defendant, defendant removed cattle from the impound pens

where Rogue Rivera placed the cattle. Further, defendant admitted

to Investigator Lewis Tatum that defendant removed the cattle. 

That same day, a Hopkins County Justice of the Peace found that probable

cause existed to arrest Bergin for theft of livestock and signed a warrant for his

arrest. Bergin was arrested and held at the Hopkins County Jail for

approximately 18 hours. After the impound fee was paid, apparently by one of

Bergin’s defense attorneys on Bergin’s behalf, the State dismissed the charges

against him.

On January 3, 2011, Bergin filed suit against Simpson, Tatum, and

Hopkins County. The complaint alleged that Simpson and Tatum made

materially false representations, and claimed violation of Bergin’s Fourteenth

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Amendment right to due process as well as a state claim of malicious

prosecution. Simpson and Hopkins County were subsequently dismissed from

the suit at the agreement of all parties, and the remaining parties agreed that

the case would be tried before a magistrate judge.

Tatum moved for summary judgment. In deposition testimony, Tatum

admitted that he knew the cattle did not belong to Rivera, but that he did not

know at the time the complaint was filed—or at the time of the deposition—that

the cattle belonged to Bergin. However, when the complaint was filed, Tatum

knew that Bergin claimed ownership of the cattle. He stated that the prosecutor

had relied on the facts he laid out in the complaint to charge Bergin with theft. 

Tatum provided his understanding that “if no one provides ownership of cows

that are impounded, the impound officer can at some point sell those cattle as

if he owned them.”

Rivera submitted an affidavit stating that he was “the person designated

by the Sheriff of Hopkins County to sell any cattle that I impound when the

owner is not identified or when the impound fee is not paid.” Rivera relayed his

understanding that after cattle are impounded, if “an owner is never determined

or located . . . a person designated by the Sheriff[] has title over the animal and

can sell the animal at a public auction as if they are the owner” and that if an

owner is “determined or located, he can retrieve the impounded cattle only after

paying the impound fee.”

The magistrate judge granted summary judgment to Tatum on November

14, 2012, on qualified immunity grounds. The magistrate judge found that even

if Tatum’s affidavit contained misstatements, a reasonable officer could

nonetheless find that the affidavit established probable cause without the

misstatements, because Bergin “had no right to take the cattle without paying

the impound fee” and “Rivera had a right to possess the cattle until that fee was

taken.” With regard to Bergin’s state law claim of malicious prosecution, the

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magistrate judge found both that there was no evidence that Tatum acted with

malice against Bergin, and that Tatum had official immunity under Texas law

for the same reasons he had qualified immunity under federal law.

DISCUSSION

1. Section 1983 Due Process Claim

Tatum argues that his Fourteenth Amendment right to due process was

violated when Tatum placed “material misstatements and omissions” before a

Hopkins County justice of the peace, and that his affidavit was insufficient to

establish probable cause to arrest Bergin for theft of livestock. 

Tatum has asserted qualified immunity in response to Bergin’s due

process claim. To assess qualified immunity, “we decide (1) whether the facts

that the plaintiff has alleged make out a violation of a constitutional right; and

(2) whether the right at issue was clearly established at the time of the

defendant’s alleged misconduct.” Ramirez v. Martinez, 716 F.3d 369, 375 (5th

Cir. 2013) (internal quotation marks omitted). 

Bergin argues that Tatum did not have probable cause to arrest Bergin for

theft of livestock, for two reasons: first, because the complaint misidentified

Rivera as the owner of the cattle, and second, because Rivera did not have

statutory authority to impound the cattle. The summary judgment record does

arguably indicate at least a genuine issue of fact as to whether Tatum made

false statements in the complaint, including that Rivera was “the owner” of the

cattle and that Carolyn Bergin was “acting as agent for” George Bergin.

Misstatements in preparing an affidavit for a plaintiff’s arrest can form the basis

of a § 1983 claim where “the state had to concede that the search or seizure was

undertaken without probable cause.” Jureczki v. City of Seabrook, Tex., 760 F.2d

666, 668–69 (5th Cir. 1989); see also Crostley v. Lamar Cnty., Tex., 717 F.3d 410,

423 (5th Cir. 2013) (holding that “the deficiency of any one piece of evidence used

to demonstrate probable cause does not, on its own, mean that probable cause

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did not exist”); United States v. Privette, 947 F.2d 1259, 1260 (5th Cir. 1991)

(“Because the affidavit supports a finding of probable cause when read without

the challenged statements, the trial court did not err in denying [the

defendant’s] motion to suppress.”).

Here, we cannot say that—even without the allegedly false statements—a

reasonable officer in Tatum’s position would have lacked probable cause to arrest

Bergin. “Probable cause exists when the totality of facts and circumstances

within a police officer’s knowledge at the moment of arrest are sufficient for a

reasonable person to conclude that the suspect had committed or was

committing an offense.” Ramirez, 716 F.3d at 375 (emphasis omitted). The

inquiry focuses on the validity of the arrest, not the validity of each individual

charge made during the course of the arrest. See Price v. Roark, 256 F.3d 364,

369 (5th Cir. 2001). 

A person commits theft under Texas law if they “unlawfully appropriate[]

property with intent to deprive the owner of property.” Tex. Penal Code §

31.03(a). Under Texas law, “[e]ven a true owner, who takes from one who is

lawfully in possession of property, may be guilty of theft.” Hudiberg Chevrolet,

Inc. v. Globe Indem. Co., 394 S.W.2d 792, 795 (Tex. 1965) (“There was a theft

when a mortgagor took possession of two horses he had placed in the possession

of another as security for a debt, and when the owner of a pistol took it from his

pledgee. There was a theft when an owner of a watch fraudulently took it from

the possession of the man holding it as security for repairs. There may be a theft,

when, as here, the ownership is in one person, and the possession is in

another.”).

The Texas Agriculture Code provides that a sheriff, or the sheriff’s

designee, can impound an “estray” (meaning “stray livestock,” see Tex. Agric.

Code § 142.001 (“Definitions”)) if, inter alia, “the owner of the estray is

unknown.” Texas Agric. Code Ann. § 142.009(a)(1). After a certain amount of

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time has passed without anyone claiming ownership over the livestock, the

county acquires title, considered “vested in the sheriff or the sheriff’s designee”

for purpose of sale at auction. Id. at § 142.013(a). The owner of an estray “may

recover possession . . . at any time before the estray is sold” if, inter alia, “the

owner has provided the . . . sheriff’s designee with an affidavit of ownership,”

“the sheriff’s designee has approved the affidavit of ownership,” and “the owner

has paid all estray handling expenses.” Id. at § 142.010(a). In addition, the

sheriff is entitled to claim “a collection fee” in an amount “determined by the

sheriff,” and the owner may only challenge the amount of that fee by petitioning

the justice court. Id.

There is no dispute in the record that Bergin took the cattle from the

impound lot without permission, without establishing any proof of ownership,

and without paying the impound fee or any expenses. Tatum was aware of these

facts, and he was also aware that Bergin’s sister had allegedly disclaimed

Bergin’s ownership; that Rivera had impounded the cattle pursuant to his

official duties; and that Bergin had asked Rivera to “inspect” the cattle to

determine if they were his. Because Texas law does not allow a purported owner

to recover impounded livestock without proof of ownership and other

requirements, we cannot say that a reasonable officer in Tatum’s position could

not have concluded that Bergin took the cattle without legal authority. 

Bergin also argues, for the first time on appeal, that Rivera did not have

statutory authority as Hopkins County’s impound officer because Simpson, who

instructed Rivera to impound the cattle, worked for the city police department

rather than the county sheriff. Bergin has waived this argument by not

asserting it before the district court. See Martco Ltd. Partnership v. Wellons,

Inc., 588 F.3d 864, 877 (5th Cir. 2009) (“We may only affirm an order granting

summary judgment on a basis that was presented to the district court,” because

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“arguments not raised before the district court are waived and cannot be raised

for the first time on appeal.”).

2. Malicious Prosecution

Bergin’s claim for malicious prosecution under Texas law requires proof

that, inter alia, Tatum lacked probable cause to initiate the prosecution and that

Tatum acted with malice. See Kroger Texas Ltd. Partnership v. Suberu, 216

S.W.3d 788, 793 n.3 (Tex. 2006). “Texas recognizes an ‘official immunity’ defense

to state law claims such as malicious prosecution.” Crostley, 717 F.3d at 424

(citing Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)). “Texas law of

official immunity is substantially the same as federal qualified immunity.” Id.

(internal quotation marks and citation omitted). Where officers “reasonably

believed they had probable cause to proceed against” a plaintiff under the federal

qualified immunity analysis, the plaintiff “cannot assert a claim for malicious

prosecution” under Texas law. Id. (quoting Hart v. O’Brien, 127 F.3d 424, 452

(5th Cir. 1997)). Because we conclude that a reasonable officer in Tatum’s

position could have concluded that probable cause existed, we therefore hold that

Tatum is entitled to official immunity under Texas law. 

CONCLUSION

For the foregoing reasons, we AFFIRM the magistrate judge’s grant of

summary judgment to defendant.

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