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United States Court of Appeals,

Fifth Circuit.

No. 93-8770.

Mary J. GARCIA, Janie N. Rodriguez, Susan Urquidez, Rod T. Ellis,

Ruben Gonzales, Lucy Rodriguez, Josie Breese, George Dominguez,

Joel Madrid, Jose Baeza, Cynthia Dutchover, David Davis, Felipe

Villalobos, Charles Titus, Janice Bell, Plaintiffs-Appellees,

v.

REEVES COUNTY, TEXAS, et al., Defendants,

Arnulfo Gomez, Sheriff, Defendant-Appellant.

Sept. 20, 1994.

Appeal from the United States District Court for the Western

District of Texas.

Before REYNALDO G. GARZA, SMITH and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Fifteen former employees of the Reeves County Sheriff's

Department ("Appellees") filed lawsuits against newly elected

Sheriff Arnulfo Gomez (Gomez) and Reeves County, Texas, claiming

pursuant to 42 U.S.C. § 1983 that their constitutional rights to

due process and their First Amendment rights of political

affiliation were violated when Gomez notified them that he would

not need their services as county employees when his term of office

began on January 1, 1993. Sheriff Gomez filed a motion for summary

judgment asserting qualified immunity. The district court denied

the motion summarily, finding it precluded by genuine issues of

material fact. Gomez appealed.

FACTS

In 1992, Appellant Gomez unseated Raul Florez, the incumbent
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sheriff of Reeves County in a hotly contested race. Seventeen out

of approximately 250 Reeves County employees received the following

notice on or about December 31, 1992.

This serves to notify you that effective January 1, 1993 your

services under my administration will not be required. Any

Reeves County property that was issued to you should be

accounted for an [sic] rendered to your immediate supervisor.

Your cooperation on this matter is expected.

If you wish to discuss this matter come to my office after the

effective date above.

/s/

Arnulfo Gomez, Sheriff Elect

Each of the Appellees initiated grievance proceedings with the

County Commissioners Court in accordance with provisions of the

Reeves County Personnel Policy Manual, seeking reinstatement to

their former positions. They were denied a hearing and opportunity

to present their claims by the Commissioners Court, and thereafter

filed this suit. The Appellees allege that they supported Gomez's

opponent in the sheriff's race, that Gomez was aware of their

support, and that he fired them in violation of their First

Amendment rights to affiliate with a political candidate of their

choice.

STANDARD OF REVIEW

We review summary judgments de novo, applying the same

standard as the district court. Bodenheimer v. PPG Industries,

Inc., 5 F.3d 955, 956 (5th Cir.1993). Summary judgment shall be

rendered if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the
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moving party is entitled to a judgment as a matter of law.

FED.R.CIV.P. 56(c). A dispute about a material fact in "genuine"

if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In

making its determination, the court must draw all justifiable

inferences in favor of the nonmoving party. Id. at 255, 106 S.Ct.

at 2513. Further, the court must view the evidence presented

through the prism of the substantive evidentiary burden to be

applied in this case. Id.

DUE PROCESS

The threshold inquiry in determining whether a government

official has violated a clearly established right sufficiently to

deprive that official of qualified immunity is whether the

plaintiff has asserted any constitutional violation at all.

Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114

L.Ed.2d 277 (1991). See also, Duckett v. Cedar Park, Tex., 950

F.2d 272, 276-77 (5th Cir.1992).

Appellant does not dispute that Appellees were afforded no

due process when they lost their jobs. Appellant's position is

that they were not due any process. The crux of the due process

issue before this Court on appeal is whether Appellees had a

cognizable property interest in continued employment. See, Bishop

v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (To

prevail on a claim of deprivation of employment without due process

of law, plaintiff must show that he had a cognizable property
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interest in his continued employment and that the process he was

afforded was insufficient to protect that interest.) The

Constitution does not create property interests, Board of Regents

v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548

(1972), and Appellees therefore look to Texas law for the creation

of a property interest that will support their claim to due process

rights.

Appellees concede that they would be at-will employees under

Texas law absent the County Personnel Manual which requires just

cause for termination of a Reeves County employee. In two cases

relied on by Appellees, this court has held that when a Texas city

government adopts a personnel procedure which includes a "just

cause" provision, the city employees' at-will status is modified,

and they enjoy a property interest in continued employment.

Schaper v. Huntsville, 813 F.2d 709, 713-14 (5th Cir.1987); Bueno

v. Donna, 714 F.2d 484, 492 (5th Cir.1983.)

Appellees now ask that we extend this ruling to sheriff's

office employees in Texas counties where the county commissioners

court has adopted a "just cause" provision in its county personnel

manual. Finding ourselves constrained by Texas law, we decline to

extend the Huntsville and Donna holdings.

Texas Local Government Code § 85.003(c) provides that "[a]

deputy serves at the pleasure of the sheriff." The sheriff must

apply to the county commissioners court for authority to appoint

employees to serve as deputies, assistants, clerks or jailers.

TEX.LOC.GOVT.CODE ANN. §§ 85.005 and 151.001. However, once the
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commissioners court sets the number and salary of sheriff office

employees, it may not attempt to influence the appointment of any

person to an employee position. TEX.LOC.GOVT.CODE ANN. § 151.004.

Commissioners Court of Shelby County v. Ross, 809 S.W.2d 754

(Tex.App.—Tyler 1991). We hold that the Reeves County

Commissioners Court had no authority under Texas law to change the

Appellees from at-will to just cause status, thereby preventing

Gomez from terminating sheriff's department employees who served

under a previous administration without just cause.

Appellees argue that the sheriff's plenary authority is

restricted by § 85.003(c) to deputized employees only, and does not

apply to appellees who served in nondeputized positions. In Texas,

employees of any elected official serve at the pleasure of the

elected official, regardless of whether there is a statute which

specifies at-will status. In Renken v. Harris County, 808 S.W.2d

222 (Tex.App.—Houston [14th] 1991), the court found deputy

constables were at-will employees, although a review of the

constable statute reveals no at-will language. TEX.LOC.GOVT.CODE ANN.

§ 86.011. Likewise, in Renfro v. Shropshire, 566 S.W.2d 688

(Tex.Civ.App.—Eastland 1978), the court found that county clerks

enjoy unfettered discretion in hiring and firing their employees.

Again, the statute contains no express provision that the deputy

serves at the pleasure of the clerk. TEX.LOC.GOVT.CODE ANN. § 82.005.

While no Fifth Circuit case squarely addresses the distinction

between deputies and other employees of a Texas sheriff's

department, we observed in Barrett v. Thomas, 649 F.2d 1193 (5th
 

1"Furthermore, this Employees Handbook does not constitute

nor should it be considered a contract and may be changed at any

time at the sole discretion of Commissioners' Court at any

regular meeting with or without notice to the employees." 

(Record, Volume 4, exhibit 25, pp. 1-2) 

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Cir.1981) that "[s]heriffs, like other elected county officials in

Texas, have indisputably wide-ranging discretion in the selection

of their employees," Id. at 1199, and made no distinction among the

rights of the plaintiff class which ranged from clerical workers to

law enforcement personnel. Id. at 1201.

 Finally, the language relied on by Appellees appears in the

Reeves County Personnel Policy, which, by its terms, is not a

contract.1 In Texas, absent any contractual limitations, either

party may end an employment relationship at will, with or without

cause. Where no express reciprocal agreement dealing with

procedures for discharge are included, employee handbooks

constitute no more than general guidelines and do not create

contractual rights in employees. Joachim v. AT & T Information

Systems, 793 F.2d 113, 114 (5th Cir.1986).

We hold that the Reeves County Commissioners Court had no

authority under Texas law to modify the sheriff's department

employees' at-will status, and that the Personnel Policy did not

give the Appellees a cognizable property interest in continued

employment that would serve to deprive Gomez of qualified immunity.

FIRST AMENDMENT CLAIMS

If Appellees have presented evidence supporting the

contention that they were fired because of their political

affiliation or political beliefs, their First Amendment claims are
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viable and should survive Gomez's motion for summary judgment.

Correa v. Fischer, 982 F.2d 931, 933 (5th Cir.1993). Appellees

must establish a fact dispute in each of three areas to avoid

summary judgment on their First Amendment Claims; one, did the

Appellees suffer an adverse employment action, two, was that action

motivated by constitutionally impermissible reasons, and three,

were the Appellees within the class of public employees of whom

political allegiance may be demanded?

Under Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), Appellees bear the

initial burden of showing that constitutionally protected activity

(affiliation with the former sheriff's campaign) was a substantial

or motivating factor in Appellant's decision to terminate their

employment.

Therefore we must first decide if, on the record before us,

there is a fact dispute on whether or not there was a triggering

personnel decision, either firing or failing to hire each of the

Appellees. The record contains the notice to the Appellees

advising them that their services would not be needed as of January

1, 1993. Appellant contends that if Appellees had come to talk to

him, he would have considered hiring them, so that the notice was

not a final determination on his part. He also contends that they

were unemployed by operation of law on January 1, 1993, and they

failed to reapply for their jobs. The best that can be said for

Appellant's position on this issue is that it creates a fact

dispute concerning whether Appellees suffered an adverse employment
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decision.

Second, was impermissible political animus a substantial or

motivating factor in the challenged decisions? The record contains

evidence that the Florez-Gomez race for sheriff was hotly

contested, with some sheriff's department employees supporting each

candidate. Gomez had worked for many years as an employee in the

sheriff's department under his opponent. He knew the Appellees

well, including their work habits and faults, and even admits to

knowing whose candidacy many of the sheriff's department employees

supported. Appellees ask this Court to rely on the inferences that

can be drawn from the circumstances of the campaign and the

subsequent terminations to conclude that a fact dispute exists on

the issue of whether political animus was a substantial or

motivating factor in their terminations.

Making this determination demands a sensitive inquiry into

such circumstantial evidence of intent as may be available.

Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252,

270-71, 97 S.Ct. 555, 566-67, 50 L.Ed.2d 450 (1977). While

cognizant of the circumstantial nature of evidence typically

available in a case such as this, we hold that plaintiffs cannot

establish a fact dispute simply by proving up a contested political

race and subsequent firings. Adding inadmissible hearsay, for

example, Janie Rodriguez's deposition testimony that Gomez's

supporters told her she was "out the door" for not supporting him,

will likewise not be enough to get past the summary judgment

hurdle. Even taken together, the claims do not fall into a pattern
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from which an inference of political animosity can be drawn. See,

Correa v. Fischer, 982 F.2d 931, 934 (5th Cir.1993) ("mass" firings

can suggest that employees' terminations were not based on

individual considerations, but rather on a political litmus test.)

The evidence in this record supports the conclusion that Gomez

wanted a reasonable level of loyalty and efficiency from his

employees, regardless of their political beliefs, which is a

perfectly legal motivation. McBee v. Jim Hogg County, Tex., 730

F.2d 1009, 1014 (5th Cir.1984). All but one of the Appellees have

failed to offer evidence, circumstantial or otherwise, that if

believed by a trier of fact, would create the causal connection

between political activities or beliefs and job terminations, which

is necessary to entitle them to a verdict on the issue of political

animus firing.

Only Appellee Susan Urquidez's case survives, on the basis of

Gomez's own affidavit testimony. Gomez related that Urquidez was

hired after the primary elections to fill a position that became

available when Raul Florez fired some people who had supported

Gomez's campaign. Gomez promised those people that he would put

them back to work if he came into office. He wanted to send a

signal to his supporters that he valued and supported them.

Although he had no adverse opinion about Urquidez's job

performance, he let her go and rehired a former sheriff's

department employee.

Urquidez's case, having survived the second step, must then be

examined under the third step: was she within the exceptional
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class of public servants of whom political allegiance may be

demanded? This third question requires the court to look at her

job description. In Barrett v. Thomas, 649 F.2d 1193 (5th

Cir.1981), this Court held that "the question is whether the hiring

authority can demonstrate that party affiliation is an appropriate

requirement for the effective performance of the public office

involved." Id. at 1200-1201, citing, Elrod v. Burns, 427 U.S. 347,

96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). In that case, the court

found that what has been termed the "confidential policymaking

exception" did not apply to the plaintiff class which ranged from

clerical workers to law enforcement personnel in a Texas sheriff's

office. Id. at 1201. Although Gomez summarizes the Urquidez's job

in his affidavit, nowhere in the record have we found Appellee's

formal job duties set out. On the record before us, we do not have

enough information about Urquidez to disagree with the trial

court's finding that genuine issues of material fact remain.

Gomez characterizes the law in this area as complex and

difficult to apply, reasoning that he therefore did not violate

clearly established law in filling positions based on loyalty and

trust. Gomez may be correct that the law in this area is complex,

fact specific and difficult to apply. However, he is not immune

from the consequences of violating complex laws, if they are

clearly established, as this one has been since at least 1981.

Barrett v. Thomas, 649 F.2d 1193 (5th Cir.1981).

CONCLUSION

Based on the foregoing, that portion of the trial court's
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order denying Gomez summary judgment on all Appellees' due process

claims is REVERSED. That portion which denies summary judgment of

the First Amendment questions is AFFIRMED as to Appellee Urquidez,

and REVERSED as to all other Appellees.