           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                             FILED
                                                                         December 10, 2007

                                        No. 07-20061                    Charles R. Fulbruge III
                                                                                Clerk

ANGELA TONKIN, Executrix of the Estate of Virgil Holland; MARK CRUSE;
RONNIE ALEXANDER; TOM DICKERSON


                                                    Plaintiffs - Appellants
v.

HARRIS COUNTY TEXAS

                                                    Defendant - Appellee



                     Appeal from the United States District Court
                          for the Southern District of Texas
                                    4:04-CV-4687


Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.
PER CURIAM:*
       Four former employees1 of the Harris County Constable’s Office, Precinct
Three, appeal the summary judgment denying their 42 U.S.C. § 1983 claim.
Virgil Holland, Mark Cruse, Ronnie Alexander, and Tom Dickerson alleged that
the constable, Ken Jones, violated their First Amendment rights by limiting



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
           One of the employees, Virgil Holland, died during the course of these proceedings.
                                   No. 07-20061

their ability to air their complaints about the constable’s office and by retaliating
against them for refusing to support his election campaign. Their § 1983 suit
was directed not at the constable, however, but at Harris County, a fact that
proves fatal for their claims.
      Though § 1983 may be applied against municipalities, it may not be
applied under a theory of respondeat superior. Monell v. Dep’t of Soc. Serv., 436
U.S. 658, 693 (1978). That is,
      a local government may not be sued under § 1983 for an injury
      inflicted solely by its employees or agents. Instead, it is when
      execution of a government’s policy or custom, whether made by its
      lawmakers or by those whose edicts or acts may fairly be said to
      represent official policy, inflicts the injury that the government is
      responsible under § 1983.
Id. at 694. Further, “a single action by a municipal official possessing final
policymaking authority regarding the action in question constitutes the official
policy of the municipality.” Brady v. Fort Bend County, 145 F.3d 691, 698 (5th
Cir. 1998). But the discretion to terminate and hire does not in itself represent
final policy-making authority, if another body or official sets county employment
policy. See id. at 699 n.1.
      The threshold question for this case, therefore, is whether a constable of
a county in Texas can be said to be the policy maker for the county with respect
to his actions so as to hold the county liable for the constable’s conduct. Our
precedents are clear: the answer is no.
      A constable is not elected by the county, but by voters in a precinct, a
subdivision of a county. In Rhode v. Denson, 776 F.2d 107, 109 (5th Cir. 1985),
a case involving an unlawful arrest, the court focused on the limited authority
exercised by constables: “The critical circumstance is that Denson, as a constable
of a precinct, was not given that discretion, or range of choice, that is at the core
of the power to impose one’s own chosen policy.” The court contrasted the
limited authority of a constable with that of the county judge, county sheriff, and

                                          2
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county treasurer, all of which have power “marked by authority to define
objectives and choose the means of achieving them” for the entire county. Id.
Nor did the “seeming independence of a Texas constable and . . . the lack of
superintendence by the county court” imbue final policy-making power. Id. at
110. On this basis, the court concluded that constables “lacked the power to
make county policy.” Id. Other decisions in our circuit support this conclusion,2
as do Texas statutes.3
       The discharged employees rely primarily on Hitt v. Connell, 301 F.3d 240
(5th Cir. 2002), to argue that Texas law does make a constable the final policy-
making authority with respect to individual hiring and firing. But Hitt is
inapposite. While Hitt involved similar factual circumstances, the § 1983 suit
was directed against the constable himself, rather than the county. Id. at 245.
As such, whether the constable’s actions implicated the county for § 1983
purposes was not at issue. The court’s consideration of whether the constable
was a final decision-making authority was therefore directed not at determining
whether the constable established employment policy for the county, but instead
whether the constable, in his individual capacity, was causally responsible for
the firing at issue. Id. at 247-48. Stated another way, the question addressed
by the court was whether the local civil service commission review and approval
of the constable’s decision made the commission causally responsible for the


       2
          See, e.g., Keenan v. Tejada, 290 F.3d 252, 263 (5th Cir. 2002) (holding that § 1983
First Amendment retaliation claim could not be brought against county for actions of
constable); Frank v. Harris County, 118 F. App’x. 799, 802 (5th Cir. 2004) (unpublished)
(holding that a discharged Harris County deputy could not pursue a § 1983 claim against the
county because the constable that fired her was not a final policy maker for the county); Drain
v. Galveston County, 979 F. Supp. 1101, 1103 (S.D. Tex. 1997) (holding that without evidence
that a constable was acting in accord with an official policy, county could not be sued under §
1983 for constable’s actions).
       3
        See Tex. Loc. Gov’t Code § 86.011(a), § 151.002, § 151.003 (providing that a constable
may only appoint deputy with permission of commissioners court and the commissioners court
oversees that appointment).

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termination, rather than the constable.     Id.   The court’s answer to that
question—that the commission was not a final decision maker—is therefore
simply irrelevant to determination of the question presented here.
      Because the discharged employees brought suit only against Harris
County and cannot show that Jones, as a constable, is a final policy maker for
the county, the former employees’ § 1983 claim must fail. The judgment of the
district court is therefore
                                                                 AFFIRMED.




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