                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
               IN THE UNITED STATES COURT OF APPEALS               May 20, 2003
                       FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                                                                     Clerk

                              No. 02-10988
                            Summary Calendar


MICHAEL R. CAMPBELL,

                                       Plaintiff-Appellant,

versus

CITY OF FORT WORTH,

                                       Defendant-Appellee.

                        --------------------
            Appeal from the United States District Court
                 for the Northern District of Texas
                       USDC No. 4:01-CV-615-A
                        --------------------


Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

     Fort Worth Police Officer Michael Campbell appeals from the

grant of summary judgment for the City of Fort Worth in his civil

action, an action that was removed to the federal district court

by the City and previously dismissed defendant Chief Ralph Mendoza.

A hearing examiner in Officer Campbell’s case affirmed Chief

Mendoza’s   decision   to   suspend   Officer   Campbell   indefinitely.

Finding no error, we AFFIRM.


     *
        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that this opinion should not be published and is not precedent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.
                                     No. 02-10988
                                          -2-

      Officer Campbell contends that he did not waive his right to

seek judicial review by proceeding before the hearing examiner. He

argues that his breach-of-contract claim was not before the hearing

examiner and that, to the extent the hearing officer purported to

rule on the contract claim, the hearing officer exceeded his

jurisdiction.     He also argues that the district court erred by

failing to strike Chief Mendoza’s affidavit; that the district

court erred by holding that he had failed to articulate any facts

to   support    his       fraud   claim;    that    the    defendants     were   not

forthcoming in the discovery process; that the district court

misinterpreted        a    portion    of   the   hearing     examiner’s     opinion

regarding   mitigating        circumstances;        that   there   is   a   factual

question regarding whether the June 12, 2000, settlement agreement

was intended to cover Officer Campbell’s activities during the

suspension period; and that the district court erred by holding

that his due process rights were not violated by the prohibition on

work during the suspension period.

      “[W]here a state court lacks jurisdiction of the subject

matter or of the parties, the federal District Court acquires none

on a removal of the case.”            Freeman v. Bee Machine Co., 319 U.S.

448, 449 (1943). Under Texas law, a disciplined police officer may

appeal to an independent hearing examiner, but by doing so the

officer waives all rights to proceed to state court, except “on the

grounds that the [hearing examiner] was without jurisdiction or

exceeded [his] jurisdiction or that the order was procured by
                                   No. 02-10988
                                        -3-

fraud, collusion, or other unlawful means.”            TEX. LOC. GOV’T CODE ANN.

§ 143.057(c),(j)(Vernon 1999).            We address only the merits of

Officer Campbell’s federal constitutional claim.               See Jackson v.

Houston Indep. Sch. Dist., 994 S.W.2d 396, 401 (Tex. Ct. App. 1999)

(federal      constitutional        claims    need     not     be    exhausted

administratively).        Moreover, regardless whether Officer Campbell

failed to exhaust his state-law breach-of-contract claim before the

hearing examiner in his case or whether the hearing officer rules

on the claim, we have no jurisdiction over it.

     The Due Process Clause protects the right to work for a

living.    Phillips v. Vandygriff, 711 F.2d 1217, 1222 (5th Cir.

1983).     Officer Campbell was prohibited from working off-duty

during his suspension. However, Officer Campbell remained a police

officer during that period, albeit one under suspension.               Because

Officer Campbell was employed, the relevant question is not whether

he was deprived of his right to work at the Jesse Jackson School,

but whether the prohibition on off-duty work by a suspended police

officer infringed on any interest protected by the Due Process

Clause.

     “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.”       Bishop v. Wood, 426 U.S. 341, 344 (1976).

Chief Mendoza swore that the Police Department’s General Orders

prohibited officers on limited duty status from working approved
                              No. 02-10988
                                   -4-

off-duty employment and that he directly ordered Officer Campbell

not to work during his suspension.           Officer Campbell testified

during a deposition that he believed the General Orders prohibited

only work as a commissioned, uniformed Fort Worth Police Officer

and that they were illegal to the extent that they prohibited him

from working as a civilian.

     Chief Mendoza showed that there was no state-law entitlement

for a suspended police officer to work while suspended.           Quite the

contrary   --   Officer   Campbell    was   barred   from   working   while

suspended.

     Officer     Campbell’s   fraud    claim   involves     the   agreement

underlying his breach-of-contract claim; it does not involve the

use of fraud to obtain the hearing examiner’s opinion.             Officer

Campbell has not otherwise shown that the jurisdictional bar of

TEX. LOC. GOV’T CODE ANN. § 143.057(j) (Vernon 1999) does not apply to

the nonconstitutional issues in his case.

     AFFIRMED.
