                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 12, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 02-41617
                          Summary Calendar



JOSE VILLARREAL, Individually and as Personal
Representative of the Estate of Jorge Villarreal,
Deceased; ROSA VILLARREAL, Individually and as
Personal Representative of the Estate of Jorge
Villarreal, Deceased,

                     Plaintiffs - Appellants

     v.

CITY OF MERCEDES, TEXAS, ET AL.

                     Defendants

CITY OF MERCEDES, TEXAS

                     Defendant - Appellee

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. M-99-CV-163
                      --------------------

Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.

PER CURIAM:*

     Jose and Rose Villarreal, Texas residents, appeal from the

district court’s order granting summary judgment to defendant

City of Mercedes (“City”).   The Villarreals filed this 42 U.S.C.

§ 1983 civil rights complaint as representatives of the estate of

     *
        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that this opinion should not be published and is not precedent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. 02-41617
                                  -2-

their deceased son, Jorge.    They alleged that the City violated

Jorge’s due process rights by having a deliberately indifferent

policy or practice by which it permitted and even encouraged a

public-works employee, defendant Lazaro Castellano, to drive

under the influence of alcohol.    They also asserted a claim under

the Texas Tort Claims Act (“TTCA”).

     Late on the evening of August 9, 1997, near Elsa, Texas,

Castellano, while under the influence of alcohol, drove his car

through a stop sign and collided with the 18-year-old Jorge’s

car, causing Jorge’s death.    It has been the Villarreals’

contention that Castellano was acting within the scope of his

employment at that time, in that he was returning to Mercedes in

order to close up the Mercedes Civic Center following a private

function there.   They argue that, for TTCA purposes, he was on a

“special mission” for his employer.    They also complain that the

district court erred by “refus[ing] to consider” an affidavit

from Castellano that they submitted after the district court had

granted the City’s summary-judgment motion.    In this 2001

affidavit, Castellano attested that, at the time of the accident,

he was in fact returning to Mercedes to close the Civic Center

and that he considered himself to be “on the clock.”

     This court reviews de novo a district court’s order granting

a party’s summary-judgment motion.    Whittaker v. BellSouth

Telecomm., Inc., 206 F.3d 532, 534 (5th Cir. 2000).    Summary

judgment is proper if the pleadings, depositions, answers to
                           No. 02-41617
                                -3-

interrogatories, and admissions on file, together with any

affidavits filed in support of the motion, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.     FED. R. CIV. P. 56(c).

The moving party bears the burden of showing the district court

that there is an absence of evidence to support the nonmoving

party’s case.   Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986).   If the moving party meets the initial burden of showing

that there is no genuine issue, the burden shifts to the

nonmovant to set forth specific facts showing the existence of a

genuine issue for trial.   Rule 56(e).    The nonmovant cannot

satisfy his summary-judgment burden with conclusional

allegations, unsubstantiated assertions, or only a scintilla of

evidence.   Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th

Cir. 1994) (en banc).

     Although in district court the parties and the court focused

primarily on the issue whether Castellano was acting under color

of state law at the time of the accident, they overlooked a

threshold issue:   whether the Villarreals had even alleged a tort

of constitutional dimension against the City.     See McKinney v.

Irving Indep. Sch. Dist., 309 F.3d 308, 312 (5th Cir. 2002),

cert. denied, 123 S. Ct. 1332 (2003) (42 U.S.C. § 1983 claimant

must establish (1) a violation of rights secured by the

Constitution or the laws of the United States that (2) was

committed by a person acting under color of state law).     The
                             No. 02-41617
                                  -4-

substantive component of the Fourteenth Amendment’s Due Process

Clause “protects individual liberty against ‘certain government

actions regardless of the fairness of the procedures used to

implement them.’”   Collins v. City of Harker Heights, Tex., 503

U.S. 115, 125 (1992) (citation omitted).     It “does not transform

every tort committed by a state actor into a constitutional

violation.”   DeShaney v. Winnebago County Dep’t of Soc. Servs.,

489 U.S. 189, 201 (1989).    Generally, the Supreme Court has held

that “the substantive component of the Due Process Clause is

violated by executive action only when it ‘can properly be

characterized as arbitrary, or conscience shocking, in a

constitutional sense.’”     County of Sacramento v. Lewis, 523 U.S.

833, 847 (1998) (quoting Collins, 503 U.S. at 128).

     The claim set forth by the Villarreals does not rise to the

level of a constitutional tort.     It is “analogous to a fairly

typical state-law tort claim.”      See Collins, 503 U.S. at 128.

Although the Villarreals use the words “deliberately indifferent”

to describe the City’s policy, their specific assertions

regarding the City’s acts or omissions alleged a tort in the

nature of negligence.     See id.   Even if this court were to apply

the “deliberate indifference” standard, the Villarreals’

allegations--that the City knew of Castellano’s alcohol problems,

his prior arrests for public intoxication, and his prior

convictions of driving while intoxicated--failed to establish

that Jorge’s death was a “known or obvious consequence” of the
                             No. 02-41617
                                  -5-

City’s treatment of Castellano.    See In re Foust, 310 F.3d 849,

861 (5th Cir. 2002).

     The Villarreals also continue to assert a claim against the

City under the TTCA.   The TTCA creates a limited waiver of

sovereign immunity when a death is caused by negligence of a

government employee acting “within his scope of employment,” if

the death arises from the operation of a “motor-driven vehicle.”

See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)(A) (Vernon 1997);

DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995).      An

employee is generally not acting within his “scope of employment”

when he is driving his or her own vehicle to or from his place of

employment.   Terrell v. Sisk, 111 S.W.3d 274, 278 (Tex. App.

2003).   Under the “special mission” exception, however, the

governmental unit may be held liable when the employee has

undertaken a “specific errand” at the “specific request” of the

employer.   Wilie v. Signature Geophys. Servs., Inc., 65 S.W.3d

355, 359 (Tex. App. 2002).

     Contrary to the Villarreals’ contention, the district court

did not refuse to consider Castellano’s 2001 affidavit.      The

court ruled that, even if it considered the affidavit, the

affidavit would not change its ruling that the Villarreals were

not entitled to relief as to either their due process or TTCA

claim.   This unsubstantiated evidence, which contradicted other

evidence in the record showing that Castellano was not considered

to be working at the time he attempted to drive back to Mercedes
                            No. 02-41617
                                 -6-

from Elsa, was not sufficient to show anything more than that

Castellano was driving to work.   It did not demonstrate that

Castellano was on a “special mission.”

     Because no summary-judgment evidence showed that Castellano

had been directed by his employer to be anywhere near Elsa on the

night of August 9, 1997, the Villarreals cannot establish that he

was on a special mission.   Accordingly, the City was not liable

under the TTCA.

     The judgment of the district court is AFFIRMED.
