                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                  March 11, 2004

                        _____________________            Charles R. Fulbruge III
                                                                 Clerk
                             No. 03-40572
                        _____________________

                         JESUS P. RODRIGUEZ,

                        Plaintiff - Appellant,

                                versus

                          HENRY ESCALON,
           In His Individual and Official Capacity as
                   Sheriff of Hildalgo County,

                      Defendant - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
               District Court Cause No. M-02-CV-119
_________________________________________________________________

Before DAVIS, BARKSDALE and PRADO, Circuit Judges.1

PRADO, Circuit Judge:

     This appeal arises from a dispute between an employee and

his former employer about whether the employee had a protected

property interest in his job.    After considering the parties’

arguments and the applicable law, this Court concludes that the

employee does not have a protected property interest and AFFIRMS

the judgment of the district court finding the same.

                          Factual Background

     1
      Pursuant to 5th Cir. R. 47.5, this 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that this opinion should not be published and is not precedent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.

                                  1
     The appellant, Jesus P. Rodriguez (Rodriguez), worked for

the Hidalgo County (Texas) Sheriff’s Department for twelve years

until he was terminated in the fall of 2001.    Rodriguez sought

review of his termination by the Hildalgo County Civil Service

Commission (the Commission).    In the spring of 2002, the

Commission ordered the Sheriff’s Department to reinstate

Rodriguez.    But the Sheriff, Appellee Henry Escalon, refused to

rehire Rodriguez.

     In response, Rodriguez sued Sheriff Escalon under section

1983 of title 42 for depriving him of property without due

process of law as prohibited by the Fourteenth Amendment to the

United States Constitution.    Both parties moved for summary

judgment.    In their motions, the parties addressed whether

Rodriguez possessed a protected property interest in his job with

the Sheriff’s Department.    After considering the parties’

motions, the district court found that Rodriguez was an at-will

employee of the Sheriff’s Department, and thus, Rodriguez lacked

a property interest within the meaning of the Due Process Clause

of the Fourteenth Amendment.    Accordingly, the district court

granted Sheriff Escalon’s motion for summary judgment, denied

Rodriguez’s motion, and dismissed the lawsuit.    Rodriguez

challenges that determination in this appeal.




                                  2
                        Standard of Review

     This appeal presents a question of law; that is, whether

Rodriguez had a protected property interest in his job.   This

Court reviews the district court's determination about this

question of law de novo.2

                Whether a Property Interest Exists

     On appeal, Rodriguez maintains the district court erred by

concluding that he lacked a property interest in his job with the

Sheriff’s Department.   Rodriguez admits that no contract between

himself and the Sheriff’s Department existed, but argues that

property interests in government employment are commonly created

by administrative rule-making.   Relying on several Supreme Court

opinions,3 Rodriguez argues that the Commission’s rules created a

property interest in his employment by prohibiting arbitrary

dismissal and allowing him to challenge his termination at a

hearing.   He also argues that this Court in Glenn v. Newman4

found that similar policies and procedures indicated a mutual

understanding between the employer and the employee that the

employee had a property interest in continued employment.   In

addition, Rodriguez relies on several Commission rules that he


     2
      See Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 408 (5th
Cir. 2002).
     3
      Rodriguez relies on Board of Regents v. Roth, 408 U.S. 564
(1972), and Perry v. Sindermann, 408 U.S. 593 (1972).
     4
      614 F.2d 467 (5th Cir. 1980).

                                 3
asserts indicate he was not an at-will employee.

     Only government employees who can show that they have a

property interest in continued employment are entitled to the

procedural due process protections of the Fourteenth Amendment.5

“A property interest in employment can . . . be created by

ordinance, or by an implied contract.    In either case, however,

the sufficiency of the claim of entitlement must be decided by

reference to state law.”6   In Texas, “there exists a presumption

that employment is at-will unless that relationship has been

expressly altered,” either by contract or by express rules

limiting the conditions under which an employee may be

terminated.7   Any agreement to modify the at-will relationship,

however, must be clear and specific.8    In the context of public

employment, any ambiguity is resolved in favor of the state.9

     In the instant case, no clear and specific agreement exists

to modify the at-will relationship.     Although the Commission has

promulgated rules regarding prohibited employee conduct, those

rules are specifically stated in terms of “examples” of

     5
      See Bd. of Regents v. Roth, 408 U.S. 564 (1972).
     6
      Bishop v. Wood, 426 U.S. 341, 344 (1976).
     7
      Muncy v. City of Dallas, 335 F.3d 394, 398 (5th Cir. 2003).
     8
      See Batterton v. Tex. Gen. Land Office, 783 F.2d 1220, 1223
(5th Cir. 1986); Byars v. City of Austin, 910 S.W.2d 520, 523
(Tex. App.—Austin 1995, writ denied).

     9
      See Batterton, 783 F.2d at 1223; Byars, 910 S.W.2d at 523.

                                 4
prohibited conduct.     Including a non-exhaustive list of

prohibited conduct does not constitute an express and specific

modification of the at-will employment relationship.10       The

Court’s previous determination in Glenn v. Newman does not

control here because the regulations at issue in Glenn listed the

reasons an employee could be disciplined and specifically

provided that suspension and dismissal could occur only "for

cause."11     That is not the case with the Commission’s rules.

     Likewise, the provision for an employee grievance system

such as the one included in the Commission’s rules does not

constitute an express and specific modification of the at-will

employment relationship.12     Even though the Commission’s rules



     10
      See Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d
501, 502 (Tex. 1998). The Supreme Court of Texas has been clear
on this point:

     General comments that an employee will not be
     discharged as long as his work is satisfactory do not
     in themselves manifest such an intent. Neither do
     statements that an employee will be discharged only for
     "good reason" or "good cause" when there is no
     agreement on what those terms encompass. Without such
     agreement the employee cannot reasonably expect to
     limit the employer's right to terminate him. An
     employee who has no formal agreement with his employer
     cannot construct one out of indefinite comments,
     encouragements, or assurances.

Montgomery County Hosp. Dist., 965 S.W.2d at 502.
     11
          See Glenn, 614 F.2d at 471-72.
     12
      See Byars v. City of Austin, 910 S.W.2d 520, 524 (Tex.
App.-Austin 1995, writ denied).

                                   5
provide that the Commission will reverse the Sheriff’s action if

it finds the adverse employment action was arbitrary or

capricious, in Texas, even an oral or written statement that an

employee may be terminated for “good reason” or “good cause”

without further definition of these terms will not alter the at-

will employment relationship.13

     Additionally, the “at-will” language regarding probationary

employees in the Commission’s rules does not constitute an

express and specific modification of the at-will relationship.

Notably, the rules contain no language that indicates an employee

can be terminated only for good reason or for good cause.

Without such language, no express and specific modification of

the at-will relationship exists.       Even if any ambiguity existed

about whether the at-will relationship had been expressly

modified, this Court must resolve that ambiguity in favor of the

Sheriff.14

     Because the at-will employment relationship between the

Sheriff and his employees was not modified, Rodriguez had no

protected property interest.     Without a protected property

interest, the district court did not err by granting the



     13
      See Montgomery County Hosp. Dist., 965 S.W.2d at 502;
Welch v. Doss Aviation, Inc., 978 S.W.2d 215, 221 (Tex. App.-
Amarillo 1998, no pet.); Reynolds Mfg. Co. v. Mendoza, 644 S.W.2d
536, 539 (Tex. App.—Corpus Christi 1982, no writ).
     14
          See Batterton, 783 F.2d at 1223; Byars, 910 S.W.2d at 523.

                                   6
Sheriff’s motion for summary judgment.   Consequently, this Court

AFFIRMS the district court’s order dismissing Rodriguez’s

lawsuit.

AFFIRMED




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