Opinion issued July 10, 2014.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ———————————
                            NO. 01-12-01164-CV
                          ———————————
                      BEAU DAVID PRICE, Appellant
                                      V.
TEXAS ALCOHOLIC BEVERAGE COMMISSION, ALAN STEEN, JOEL
      MORENO, ROD VENNER, AND ANDY PENA, Appellees



                   On Appeal from the 55th District Court
                           Harris County, Texas
                     Trial Court Case No. 2011-37083



                        MEMORANDUM OPINION

      Beau David Price sued his former employer, the Texas Alcoholic Beverage

Commission (“TABC”) and several officials, Alan Steen, Joel Moreno, Rod

Venner, and Andy Pena (collectively “Appellees”), alleging that his termination
violated his constitutional rights of equal protection, free speech, and due course of

law. The trial court granted Appellees’ plea to the jurisdiction, and Price appealed,

contending that the trial court erred in granting the plea because sovereign

immunity does not apply in suits alleging constitutional violations. We conclude

that Price failed to plead a valid constitutional claim, and, accordingly, we affirm.

                                    Background

      Price was employed as an agent by TABC from October 3, 2007, until

August 3, 2009, when he was terminated for violating the commission’s off-duty

employment policy and for insubordination. In late 2008, Price’s then-girlfriend,

Natalie Minton, reported to TABC that Price had assaulted her, and Price was

placed on administrative leave while TABC investigated the allegation. Minton

recanted later that year and Price returned to work on January 20, 2009.

      In March 2009, Minton reported that Price had violated TABC policies by

taking steroids 1 and having worked an off-duty job while he was on administrative

leave following Minton’s first complaint. In response, Price’s then-supervisor,

Sergeant Scott Zella, ordered an investigation, which Captain Rick Cruz decided

would be handled by Sergeant Steven Cagle.

      Price contends that, on March 18, 2009, Cruz sent an email to Andy Pena,

Captain of the Office of Professional Responsibility of TABC, and copied Cagle,

1
      Minton’s claim that Price had taken illegal drugs was later discredited and
      abandoned.

                                          2
who was several weeks from completing this second investigation, stating, “The

inquiry Sgt. Cagle is looking into (Beau Price working off duty while on admin.

leave) will be found to be true.” Price also alleges that Cagle admitted under oath

to an Administrative Law Judge that he had been advised of Price’s guilt, despite

lacking evidence that Price had violated TABC policy. Price also claims that

“Cruz treated Price differently than he treated Hispanic TABC officers charged

with extra job policy violations.” In support of his allegation, Price asserts that

“Lieutenant Harry Schreffler [was not disciplined when he] had, with impunity,

falsified a government document and notarized Price’s signature falsely.”

Moreover, he asserts that “Schreffler was suspended in 2010 for improperly

working an extra job . . . yet was reinstated and not terminated.”

      Price further alleges that Cruz ordered him not to make a Garrity

declaration, 2 but Price refused to withdraw the declaration. Price alleges that:

      Price told Cruz that he needed to confer with his attorney, who
      advised Price that it was improper for Cruz to instruct him to
      withdraw the Garrity preface and not to do so. Price told Cruz that on
      advice of counsel he would not withdraw the Garrity.

Price contends that because he refused to withdraw the Garrity declaration, “he

was subjected to retaliation and discharged by Cruz’s recommendation.”



2
      See Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616 (1967) (granting
      constitutional right to law enforcement officers to declare that any statement he or
      she has made was given under duress or coercion by a superior).

                                           3
      Price also alleges that Assistant Chief Venner ignored Price’s appeal of his

termination. TABC later submitted a report to the Texas Commission on Law

Enforcement Officer Standards and Education, pursuant to Texas Occupations

Code § 1701.452, or F-5 report, apprising the commission of Price’s termination.

This form originally stated that Price’s termination qualified as a General

Discharge, but the Administrative Law Judge later ordered that this be changed to

an Honorable Discharge after the State Office of Administrative Hearings

conducted a hearing on September 22, 2010.

      On June 21, 2011, Price filed his original petition, claiming discrimination

under the Texas Commission on Human Rights Act (“TCHRA”) and violations of

the Texas Constitution, Article I, sections 3, 8, and 19. Appellees filed a Plea to

the Jurisdiction. The trial court granted the plea but gave Price leave to amend his

state constitutional claims.   Price amended his petition and Appellees filed a

Second Amended Plea to the Jurisdiction. This amended plea argued that Steen is

the only defendant whom Price could sue in his official capacity and even so,

Price’s constitutional claims against Steen fail as a matter of law. The trial court

granted Appellees’ Second Amended Plea to the Jurisdiction.

                               Standard of Review

      A plea to the jurisdiction based on governmental immunity from suit is a

challenge to the trial court’s subject matter jurisdiction. See


                                         4
Kirwan, 298 S.W.3d 618, 621 (Tex. 2009); Tex. Dep't of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). “A plea questioning the trial

court’s jurisdiction raises a question of law that we review de novo.” State v.

Holland, 221 S.W.3d 639, 642 (Tex. 2007).

      When a plea to the jurisdiction challenges the sufficiency of the plaintiff’s

jurisdictional pleadings, we must determine whether the plaintiff has alleged facts

that affirmatively demonstrate the court’s jurisdiction. See Miranda, 133 S.W.3d

at 226. We construe the pleadings liberally in favor of the plaintiff and look to the

pleader’s intent. Id.; Smith v. Galveston Cnty., 326 S.W.3d 695, 697–98 (Tex.

App.—Houston [1st Dist.] 2010, no pet.). The party asserting the plea must show

that, “even if all the allegations in the plaintiff’s pleadings are taken as true, there

is an incurable jurisdictional defect apparent from the face of the pleadings,

rendering it impossible for the plaintiff’s petition to confer jurisdiction on the trial

court.” Anderson v. Am. Fed’n of Gov’t Emps., AFL–CIO, 338 S.W.3d 709, 712–

13 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). If the pleading contains

facts that do not affirmatively demonstrate, but also do not affirmatively negate,

jurisdiction, “it is an issue of pleading sufficiency and the plaintiff should be given

an opportunity to amend the pleadings.”         Kirwan, 298 S.W.3d at 622 (citing

Miranda, 133 S.W.3d. at 226–27). “If the pleadings affirmatively negate the

existence of jurisdiction, then a plea to the jurisdiction may be granted without


                                           5
allowing the plaintiff an opportunity to amend its petition.” Smith, 326 S.W.3d at

698 (citing Miranda, 133 S.W.3d at 227).

      When a plea to the jurisdiction challenges the existence of jurisdictional

facts, we “‘consider relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues raised,’ even where those facts may implicate the

merits of the cause of action.” Kirwan, 298 S.W.3d at 622 (quoting Miranda, 133

S.W.3d. at 227). When reviewing the evidence, we must take as true all evidence

in favor of the nonmovant, “indulge every reasonable inference and resolve any

doubts in the nonmovant’s favor.” Id. (quoting Miranda, 133 S.W.3d at 228). If

the evidence creates a fact issue as to the jurisdictional issue, then the fact-finder

will decide that issue. Id. (citing Miranda, 133 S.W.3d at 227–28). “However, if

the relevant evidence is undisputed or fails to raise a fact question on the

jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of

law.” Id. (quoting Miranda, 133 S.W.3d. at 228).

                                   Applicable Law

      Under the doctrine of sovereign immunity, parties may not sue the sovereign

without its consent. See Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006).

Sovereign immunity has two components: (1) immunity from suit, which deprives

a trial court of subject-matter jurisdiction over a suit to which the State has not

consented, and (2) immunity from liability, which protects the State from


                                            6
judgments against it even when it has consented to suit. See City of Dallas v.

Albert, 354 S.W.3d 368, 373 (Tex. 2011). Because immunity from suit defeats a

trial court’s subject-matter jurisdiction, it is properly asserted in a plea to the

jurisdiction. See Miranda, 133 S.W.3d at 225–26; City of Houston v. Gunn, 389

S.W.3d 401, 402 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).

      Public officials sued in their official capacities are protected by the same

sovereign or governmental immunity as the governmental unit they represent. See

Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 843–44 (Tex. 2007). But,

Texas law generally does not shield state officials from suits for equitable relief for

a violation of constitutional rights. See City of El Paso v. Heinrich, 284 S.W.3d

366, 373 n.6 (Tex. 2009) (explaining that State has waived sovereign immunity for

suits seeking declarations regarding validity of statutes).

      Nevertheless, claims for equitable relief for constitutional violations “cannot

be brought against the state, which retains immunity, but must be brought against

the state actors in their official capacity.” Id. at 373. If a plaintiff properly sues

the appropriate state official for equitable relief, we must examine whether the

plaintiff’s petition sufficiently pleaded his claims to defeat the government’s plea

to the jurisdiction. See Miranda, 133 S.W.3d at 226.

      While a plea to the jurisdiction “does not authorize an inquiry so far into the

substance of the claims presented that plaintiffs are required to put on their case


                                           7
simply to establish jurisdiction[,]” the plaintiff must do more than merely name a

cause of action against the state official and assert the existence of a constitutional

violation. Id. at 223; see generally Andrade v. NAACP of Austin, 345 S.W.3d 1, 11

(Tex. 2011) (considering substance of equal protection claim against Secretary of

State in reviewing ruling on plea to jurisdiction and explaining that Secretary

retained immunity from suit unless plaintiffs pleaded “viable claim”); Dir. of Dept.

of Agric. & Env’t v. Printing Indus. Ass’n of Tex., 600 S.W.2d 264, 265 (Tex.

1980) (rejecting court of appeals’ conclusion that plaintiff need only plead

existence of invasion of rights to bring suit against governmental defendant); City

of Paris v. Abbott, 360 S.W.3d 567, 583 (Tex. App.—Texarkana 2011, pet. denied)

(noting that governmental defendant remains immune from suit absent plaintiff’s

pleading of viable claim).     To state a claim within the waiver of sovereign

immunity, the plaintiff must plead a facially valid constitutional claim. See City of

Houston v. Johnson, 353 S.W.3d 499, 504 (Tex. App.—Houston [14th Dist.] 2011,

pet. denied).

                                      Analysis

      Price contends that the trial court erred in granting the Appellees’ plea to the

jurisdiction. The State responds that the trial court properly granted the plea

because Price failed to plead any facially valid constitutional claims. Further, the

State contends that Price may bring constitutional claims for equitable relief


                                          8
against only TABC’s director, Steen, and claims against the remaining Appellees

are barred.3 We need not determine whether Price sued the proper parties in the

correct capacity, because we conclude that Price failed to plead any facially valid

constitutional claim.

    1. Equal protection

      Price contends that he was deprived of equal protection because his “race

[was] a substantial and motivating factor in the TABC’s decision to utilize the

method used to investigate and terminate his employment.”

      We analyze equal protection challenges under the Texas Constitution in the

same way as those under the federal Constitution. Bell v. Low Income Women of

Tex., 95 S.W.3d 253, 266 (Tex. 2002). “Like the federal [C]onstitution, the equal-

protection clause of the state [C]onstitution directs governmental actors to treat all

similarly situated persons alike.” Johnson, 353 at 503 (citing Sanders v. Palunsky,

36 S.W.3d 222, 224–225 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (citing

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254

(1985))). To assert an equal protection claim, the plaintiff must establish that:


3
      Price asserts constitutional claims against Steen, TABC, Moreno, Venner, and
      Pena. Price’s petition states that Steen is the “Director of TABC,” “directs the
      daily operations” of TABC, and “is responsible for employing staff.” As to the
      other defendants, Price pleaded that TABC is “a state agency,” Moreno is the
      “Chief of Operations/Enforcement of TABC,” Venner is the “Assistant Chief of
      Enforcement of TABC,” and Pena is “Captain of the Office of Professional
      Responsibility (“OPR”) of TABC.”

                                          9
(1) he or she was treated differently than other similarly situated parties; and (2) he

or she was treated differently without a reasonable basis. See Sanders, 36 S.W.3d

at 225); City of Dallas v. Jones, 331 S.W.3d 781, 787 (Tex. App.—Dallas 2010,

pet. dism’d) (critical that plaintiff allege “he is being treated differently from those

whose situation is directly comparable in all material aspects”).

      Two employees are not similarly situated if they hold different positions.

See Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005)

(“Employees are similarly situated if their circumstances are comparable in all

material respects, including similar standards, supervisors, and conduct.”). For

employees to be similarly situated, “[t]he situations and conduct of the employees

in question must be ‘nearly identical.’” AutoZone, Inc. v. Reyes, 272 S.W.3d 588,

594 (Tex. 2008) (citing Ysleta Indep. Sch. Dist., 177 S.W.3d at 917–18). And

employees are not nearly identical if they have “different responsibilities,

supervisors, capabilities, work rule violations, or disciplinary records.” Id. (citing

Ysleta Indep. Sch. Dist., 177 S.W.3d at 917).

      In his First Amended Petition, Price identified one individual who allegedly

was treated more favorably. Price alleged that Lieutenant Harry Schreffler “was

treated more favorably than Price” because Schreffler was suspended but later

reinstated for improperly working an extra job, while Price was “terminated after




                                          10
being falsely accused of working an extra job, which Price did not work and for

which there was no evidence.”

      But Schreffler was a TABC lieutenant, and Price held a different position—

agent. Because the two men held different positions, they are not “similarly

situated.” See Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 406 (5th Cir.

1999) (concluding co-workers were not similarly situated because they did not

perform same primary duties); see also Grimes v. Wal–Mart Stores Tex., L.L.C.,

505 Fed. App’x 376, 379 (5th Cir. 2013) (plaintiff’s subordinate who was also a

manager not a valid comparator); Crosby v. Computer Sci. Corp., 470 Fed. App’x

307, 309 (5th Cir. 2012) (plaintiff’s supervisor not a valid comparator).

      Accordingly, we conclude the trial court did not err in granting the plea to

the jurisdiction with regard to Price’s equal protection claim. See Johnson, 353

S.W.3d at 504 (“[I]f the plaintiff fails to plead a viable claim, a governmental

defendant remains immune from suit for alleged equal-protection violations.”).

   2. Free speech

      Price asserts that Appellees violated his right to free speech under the free

expression provision of the Texas Constitution, which, according to Price, affords

greater protection for free speech than the First Amendment. In Davenport v.

Garcia, 834 S.W.2d 4 (Tex. 1992), the case on which Price relies, the Texas

Supreme Court concluded that the free expression provision “provide[d] greater


                                         11
rights of free expression than its federal equivalent” in the context of prior

restraints of speech. Id. at 10. But the Court has consistently declined to expand

that holding to other contexts. See, e.g., Tex. Dep’t of Transp. v. Barber, 111

S.W.3d 86, 106 (Tex. 2003) (“declin[ing] to hold that the Texas Constitution

affords [appellant] greater rights than does the First Amendment” because

appellant failed to “articulate[] any reasons based on the text, history, and purpose

of Article, I, section 8 to show that its protection of noncommercial speech is

broader . . . .”); Operation Rescue-Nat’l v. Planned Parenthood of Houston & Se.

Tex., Inc., 975 S.W.2d 546, 557–60 (Tex. 1998) (declining to expand higher

standard to injunction context). Because this is not a prior restraint case, Texas

law does not provide Price greater protection than federal law. Accordingly, we

will analyze Price’s claim under federal law.

      a. Applicable law

      “The First Amendment’s guarantee of freedom of speech protects

government employees from termination because of their speech on matters of

public concern.” Bd. of Cnty. Comm’rs, Wabaunsee Cnty., Kan. v. Umbehr, 518

U.S. 668, 675, 116 S. Ct. 2342, 2347 (1996) (citing Connick v. Myers, 461 U.S.

138, 146, 103 S. Ct. 1684, 1689 (1983) (speech on merely private employment

matters is unprotected)). “The inquiry into the protected status of speech is one of

law, not fact.” Connick, 461 U.S. at 148, 103 S. Ct. at 1690 n.7. “To prevail [on a


                                         12
free speech claim], an employee must prove that the conduct at issue was

constitutionally protected, and that it was a substantial or motivating factor in the

termination.” Umbehr, 518 U.S. at 675, 116 S. Ct. at 2347.

      Established Fifth Circuit law provides that an employee must show four

elements to prevail on a First Amendment retaliation claim against an employer:

(1) the employer took adverse action against the employee; (2) the speech was of

public concern; (3) the interest in commenting on matters of public concern

outweighs the employer’s interest in promoting efficiency; and (4) the speech was

a motivating factor in the employer’s action. In Garcetti v. Ceballos, 547 U.S.

410, 126 S. Ct. 1951 (2006), the United States Supreme Court held that in

considering the second element—whether speech was of public concern—the

reviewing court must shift its focus “from the content of the speech to the role of

the speaker occupied when he said it.” Williams v. Dallas Indep. Sch. Dist., 480

F.3d 689, 692 (5th Cir. 2007) (per curiam) (citing Garcetti, 547 U.S. at 418, 126

S. Ct. at 1958).

      After Garcetti, the Fifth Circuit articulated a new analysis for First

Amendment retaliation claims. See Davis v. McKinney, 518 F.3d 304, 312 (5th

Cir. 2008). Under the post-Garcetti analysis, to determine whether speech is

constitutionally protected, we undertake a three-prong analysis. Id.; Turner v.

Perry, 278 S.W.3d 806, 816 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).


                                         13
First, we determine whether the employee’s speech was made pursuant to official

duties. Turner, 278 S.W.3d at 816. Activities required by one’s position or

undertaken in the course of performing one’s jobs are activities pursuant to official

duties. Williams, 480 F.3d at 693. If it was made pursuant to official duties, the

speech is not protected by the First Amendment, because “[r]estricting speech that

owes its existence to a public employee’s professional responsibilities does not

infringe any liberties the employee might have enjoyed as a private citizen.”

Turner, 278 S.W.3d at 816 (quoting Garcetti, 547 U.S. at 421–22, 126 S. Ct. at

1960). Second, if the speech is not made pursuant to official duties, we determine

whether it touched upon a matter of public concern. Id. (citing Davis, 518 F.3d at

312). If the speech was not made pursuant to official duties and does not touch

upon a matter of public concern, the speech is not protected by the First

Amendment. See id. Third, if the speech does pertain to a matter of public

concern, we balance the employee’s interest in expressing the speech with the

governmental employer’s interest in performing services efficiently. Id. (citing

Davis, 518 F.3d at 312).

      “To rise to the level of public concern, the speech at issue must have been

made primarily as a citizen rather than as an employee addressing matters only of

personal concern.” Denton v. Morgan, 136 F.3d 1038, 1042 (5th Cir. 1998).

(citing Thompson v. City of Starkville, Miss., 901 F.2d 456, 465 (5th Cir. 1990)).


                                         14
An employee’s speech is not of public concern if he speaks “upon matters only of

personal interest.” See Connick, 461 U.S. at 147, 103 S. Ct. at 1690. “Because

almost anything that occurs within a public agency could be of concern to the

public, we do not focus on the inherent interest or importance of the matters

discussed by the employee.” Terrell v. Univ. of Tex. Sys. Police, 792 F.2d 1360,

1362 (5th Cir. 1986).

      b. Analysis

      Price alleged in his First Amended Petition that he exercised free speech in

six instances: (1) refusing to waive his Garrity warning; (2) “exercis[ing] his

protected speech and right not to speak;” (3) challenging the investigation of

pretextual charges against him and his termination; (4) appealing the decision or

recommendation to terminate his employment; (5) reporting violations of TABC

policy during Cagle’s investigation; and (6) reporting Schreffler’s “felony offense

of Falsifying a Government Document committed during the TABC investigation

against Price.”

             i.     Post-termination speech

      Because an employee must show that protected speech was a “substantial or

motivating factor in the termination,” the alleged protected speech, logically, must

have occurred before the termination. See Umbehr, 518 U.S. at 675, 116 S. Ct. at

2347. The record reflects that when appealing his termination to Venner, Price


                                        15
reported “TABC policy violations committed during the investigation” and “a

felony offense of Falsifying a Government Document by Lieutenant Schreffler.”

Price first made both allegations during his appeal of the termination; in other

words, they were made after he was terminated and, for that reason, could not have

been a substantial or motivating factor in the termination.

      Similarly, Price’s speech challenging the investigation of pretextual charges

against him and his termination, as well as his appeal of the decision to terminate

his employment occurred only after he was terminated. Accordingly, this speech

could not have been a substantial or motivating factor in Price’s termination.

      Price also alleges that he exercised free speech when “exercise[ing] his

protected speech and right not to speak.” But Price failed to allege any additional

detail regarding this purported constitutional violation, and we therefore cannot

conclude that it occurred before his termination.

      In short, five of six claimed instances in which Price alleges he exercised

free speech occurred after his termination. Because speech made after Price’s

termination could not have been a substantial or motivating factor in Price’s

termination, we hold the trial court did not err in concluding that Price’s post-

termination exercise of free speech could not defeat the State’s plea. See Beattie v.

Madison Cnty. Sch. Dist., 254 F.3d 595, 601, 605 (5th Cir. 2001) (holding

summary judgment on free speech claim proper because appellant failed to


                                         16
“demonstrate[e] that her speech motivated her discharge” or show a causal

connection between “alleged retaliatory motives and her adverse employment

action”). Further, we note that the Fifth Circuit affirmed the dismissal of Price’s

federal claims on the same basis. See Price v. Steen, No. 12-50386, 509 Fed.

App’x 361, 362 (5th Cir. Jan. 29, 2013) (holding “Price did not allege in his

complaint that any falsified records [which he contends were the subject of one

instance of protected speech] were the cause of his discharge and, in fact, alleged

that the documents were falsified after he had been discharged”), cert. denied, 134

S. Ct. 235 (Oct. 7, 2013).

             ii.   Garrity declaration

      To determine whether Price’s Garrity declaration is constitutionally

protected, we first determine whether Price made the declaration pursuant to

official duties. See Turner, 278 S.W.3d at 816. “Activities undertaken in the

course of performing one’s job are activities pursuant to official duties.” Williams,

480 F.3d at 692. In determining whether speech was pursuant to an individual’s

official duties, courts review a number of factors, none of which is dispositive: the

employee’s formal job description; whether the employee spoke on the subject

matter of his or her employment; whether the employee raised complaints or

concerns up the chain of command; and whether the speech resulted from special




                                         17
knowledge gained as an employee. See Charles v. Grief, 522 F.3d 508, 513–14

(5th Cir. 2008); Davis, 518 F.3d at 313; Williams, 480 F.3d at 693–94.

      Price contends that when Captain Cruz ordered Price to not make the

Garrity declaration, Price refused to withdraw his Garrity declaration. “Price told

Cruz that he needed to confer with his attorney . . . [and] that on advice of counsel

he would not withdraw the Garrity.” We conclude that Price was not speaking

pursuant to his official duties as a TABC employee when he made these statements

because the statements did not relate to his job duties and were not undertaken in

the course of performing his job. Cf. Davis, 518 F.3d at 313 (“[W]hen a public

employee raises complaints or concerns up the chain of command at his workplace

about his job duties, that speech is undertaken in the course of performing his job.”

(emphasis added)).

      Because Price’s statements were not made pursuant to official duties, we

turn to whether the speech touched on a matter of public concern. See Turner, 278

S.W.3d at 816. In determining whether speech touches on a matter of public

concern, we consider the content, context, and form of the speech and also evaluate

whether the speech “inform[s] the populace of more than the fact of an employee’s

employment grievance,” was “made against the backdrop of public debate,” and

was not made “in furtherance of a personal employer-employee dispute.” Salge v.

Edna Indep. Sch. Dist., 411 F.3d 178, 186–87 (5th Cir. 2005). Here, we conclude


                                         18
Price’s speech regarding his Garrity declaration was not of public concern because

Price communicated that speech only to Cruz and only in the context of an

employment dispute. See Bradshaw v. Pittsburg Indep. Sch. Dist., 207 F.3d 814,

817–18 (5th Cir. 2000) (holding that high school principal’s private memos to

Board concerning her unfavorable performance evaluations were not matter of

public concern); Teague v. City of Flower Mound, Tex., 179 F.3d 377, 383 (5th

Cir. 1999) (concluding public employee’s speech was in private context because it

“was made in the setting of a private employee-employer dispute,” rather than a

publicized dispute); Gillum v. City of Kerrville, 3 F.3d 117, 121 (5th Cir. 1993)

(finding that although speech concerned police misconduct, which was of public

concern, plaintiff’s speech was private in nature because its focus was on

misconduct “only insofar as it impacted his wish to continue his investigation”); cf.

Markos v. City of Atlanta, Tex., 364 F.3d 567, 571 (5th Cir. 2004) (holding speech

was of public form because plaintiff “made his comments to a newspaper reporter,

and [his] statements make it clear that he understood that his statements were to be

used in a published article”).

      Because Price’s speech regarding the Garrity declaration was not of public

concern, and all of the other allegedly protected speech for which he claims to have

been terminated occurred post-termination, we hold that Price failed to plead a free




                                         19
speech claim. Accordingly, we conclude that the trial court did not err in granting

the plea to the jurisdiction on that claim.

   3. Due course of law

      Price contends that he was denied due course of law because Appellees

deprived him “of protected, objective interests in the TABC policies, a fair and

accurate investigation not based on known falsehoods, and a right to be free from

discipline for false and defamatory accusations and alteration of government

records.”

      The due course of law guarantee of the Texas Constitution provides: “No

citizen of this State shall be deprived of life, liberty, property, privileges or

immunities, or in any manner disfranchised, except by the due course of law of the

land.” TEX. CONST. art. I, § 19. “While the Texas Constitution is textually

different [from the federal due process clause] in that it refers to ‘due course’

rather than ‘due process,’ we regard these terms as without meaningful

distinction.” Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929

(Tex. 1995).     “As a result, in matters of procedural due process, we have

traditionally followed contemporary federal due process interpretations of

procedural due process issues.” Id.

      A plaintiff’s due-course-of-law claim requires that the plaintiff have a vested

property interest at stake. Combs v. City of Webster, 311 S.W.3d 85, 92 (Tex.


                                              20
App.—Austin 2009, pet. denied) (citing Spring Branch Indep. Sch. Dist. v. Stamos,

695 S.W.2d 556, 560–62 (Tex. 1985)).             A protected property interest in

employment exists only when an employee has a “legitimate claim of entitlement”

to the employment. Trostle v. Combs, 104 S.W.3d 206, 211 (Tex. App.—Austin

2003, no pet.) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 576–74,

92 S. Ct. 2701, 2709 (1972)). “The employee must have more than an abstract

need, desire, or unilateral expectation” of a property interest. Id. (citing Roth, 408

U.S. at 577, 92 S. Ct. at 2709).

      “The presumption that employment in Texas is at will is difficult to

overcome.” Id. “[A]bsent 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 Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502

(Tex. 1998). “Any modification of at-will employment status must be based on

express rather than implied agreements.” Byars v. City of Austin, 910 S.W.2d 520,

523 (Tex. App.—Austin 1995, writ denied). If the government has agreed to fire

public employees only “for cause,” they have a property interest in continued

employment. See Cnty. of Dallas v. Wiland, 216 S.W.3d 344, 353–54 (Tex. 2007)

(concluding administrative policies and procedures manual provided expectation in

continued employment except for just cause was “property interest of which

employees may not be deprived without due process”). Whether the government


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has agreed to fire only for cause is determined by an examination of the particular

statute, ordinance, or government entity’s rules. Id. “Whether such a guarantee

has been given can be determined only by an examination of the particular statute

or ordinance in question.” Bishop v. Wood, 426 U.S. 341, 345, 96 S. Ct. 2074,

2077 (1976).

      The availability of hearings and grievance procedures alone do not create a

property interest in employment. Wiland, 216 S.W.3d at 353; Byars, 910 S.W.2d

at 524 (citing Renken v. Harris Cnty., 808 S.W.2d 222, 225 (Tex. App.—Houston

[14th Dist.] 1991, no writ)).    Moreover, “a limitation on at-will employment

‘cannot simply be inferred.’” Wiland, 216 S.W.3d at 354 (quoting Matagorda

Cnty. Hosp. Dist. v. Burwell, 189 S.W.3d 738, 739 (Tex. 2006)). “In the context of

public employment, any ambiguity in the grant of a property interest in

employment is resolved in favor of the state.” Byars, 910 S.W.3d at 523 (citing

Batterton v. Tex. Gen. Land Office, 783 F.2d 1220, 1223 (5th Cir. 1986)).

      Price does not plead the existence of an express agreement that he could be

terminated only for cause. Instead, Price pleaded only that “TABC and Price had a

‘mutually explicit understanding’ that employees would be fired only for cause, as

noted by the investigation into the claims rather than the summarily firing of

Price.” The fact that the investigation was conducted, alone, is insufficient to

defeat a jurisdictional plea, because entitlement to hearings, grievances, and other


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similar procedures alone does not create a property interest in employment. See

Wiland, 216 S.W.3d at 353–54. Nor can we infer from Price’s pleadings that his

employment status required a finding of cause for termination. See id. at 354.

Because Price did not plead a property interest in employment, we hold that Price

failed to sufficiently plead a due course of law claim. See Byars, 910 S.W.2d at

524 (“Because the existence of grievance procedures alone does not create

substantive property rights or alter an employee’s at-will status, [appellant] had no

protected property interest in her employment that would entitle her to move

procedural protection than she received.”). Accordingly, we conclude that the trial

court did not err in granting the plea to the jurisdiction with regard to Price’s due

course of law claim.

                                    Conclusion

      We affirm the trial court’s judgment.



                                              Rebeca Huddle
                                              Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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