




IN THE SUPREME COURT OF TEXAS








IN THE SUPREME COURT OF TEXAS
 
════════════
No. 04-0631
════════════
 
County of Dallas, Texas and Derrick Evans, 
Constable Precinct 7,
Petitioners,
 
v.
 
Lamar Walton, Respondent
 
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
════════════════════════════════════════════════════
 
 
Argued March 22,
2005
 
 
Justice Hecht delivered the opinion of
the Court, in which Justice Wainwright,
Justice Green, Justice Johnson, and Justice
Willett joined.
 
Justice Brister, joined by Chief
Justice Jefferson, Justice O’Neill,
and Justice Medina, concurring.
 
 
After
Derrick Evans was appointed Dallas County Constable in April 2001 following the
resignation of his predecessor, Burl Jernigan, respondent Larry Walton, one of
Jernigan’s deputies, was informed he would not be resworn as a deputy constable
under Evans. Walton, a civil service employee, filed a grievance. The County’s
Personnel and Civil Service Department Director wrote to Walton that Evans was
“not obligated to swear-in previous Deputy Constable employees” because deputy
constables “serve[] at the discretion of the Constable and the Constable has
the authority and responsibility to select his own staff.” The director stated
that the grievance was denied and that “[n]o other action [would] be taken regarding
this issue.” Walton sued the County and Evans under the Civil Rights Act of
1871[1] for depriving him of substantive and
procedural due process in violation of the Fourteenth Amendment to the United
States Constitution[2] and sought actual damages for loss of
income, loss of benefits, harm to reputation, and mental anguish in the past
and future, as well as attorneys’ fees and reinstatement. During discovery,
defendants admitted that the personnel director had “informed [Walton] that he
had no right to file a grievance”, that the County had denied Walton the right
to file a grievance, and that the County had failed to provide a hearing on
Walton’s grievance. But the defendants moved for summary judgment on three
grounds: that Walton did not have a property interest in his job, that Walton
was not terminated, and that Walton had no substantive due process claim
separate from his procedural due process claim. The trial court granted summary
judgment for the defendants, but the court of appeals reversed and remanded,[3]
based on its decision six months earlier in a virtually identical case, County
of Dallas v. Wiland,[4] which involved the same claims by
three other Dallas County deputy constables. Today, we have reversed the court
of appeals’ decision in Wiland and remanded the case to the trial court
for further proceedings.[5]
Unlike
the deputy constables in Wiland, Walton was required to sign the
following statement when sworn in by Jernigan:
 
I acknowledge, by accepting appointment as a Deputy Constable
under Constable Burl Jernigan, that my appointment is at the will and pleasure of
the Constable, and may be rescinded at any time.
 
I further acknowledge that the term of my appointment is
concurrent with that of the Constable, and if not rescinded will expire
automatically at the expiration of the Constable’s term of office.
 
Defendants argue
that by this statement Walton “agreed . . . that he had no property interest in
the job.” But the civil service statute does not contemplate that individual
constables can unilaterally remove otherwise covered deputies from the civil
service system.[6] The statement was thus of no effect.
Walton
makes the identical substantive due process claim as the deputies in Wiland,
and for the reasons there explained, that claim fails. But his procedural due
process claim is valid because, like the deputies in Wiland, he was
denied a hearing before the civil service commission on his grievance.
Accordingly,
we reverse the judgment of the court of appeals and remand the case to the
trial court for further proceedings consistent with this opinion and our
opinion in Wiland.
 
                                                                                   

Nathan L. Hecht
Opinion
delivered: February 16, 2007
 







[1] 42 U.S.C. § 1983 (“Every person who, under color
of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress
. . . .”)


[2] U.S. Const.
amend. XIV, § 1 (“No State shall . . . deprive any person of
life, liberty, or property, without due process of law
. . . .”).


[3] ___ S.W.3d ___ (Tex. App.—Dallas 2004) (mem. op.).


[4] 124 S.W.3d 390 (Tex. App.—Dallas 2004).


[5] County of Dallas v. Wiland, ___ S.W.3d
___ (Tex. 2007).


[6] Compare Tex.
Loc. Gov’t Code § 158.009(a) (“Except as provided by Section 159.010,
the [county civil service] commission shall adopt, publish, and enforce rules
regarding: (1) the definition of a county employee; (2) selection and
classification of county employees; . . . and (8) other matters relating to the
selection of county employees and the procedural and substantive rights,
advancement, benefits, and working conditions of county employees.”), and
id. § 158.010 (“(a) The head of each department included in the coverage
of a county civil service system may assume responsibility for selecting all
persons who are to be employees of that department. (b) A person employed by a
department whose head has assumed responsibility as provided by Subsection (a)
serves as a probationary employee during the first six months after selection
and may not be included in the coverage of the county civil service system
during that six-month period. . . .”), with Tex. Loc. Gov’t Code § 85.003(c) (“A deputy serves at the
pleasure of the sheriff.”). 



