     Case: 12-41394       Document: 00512463042         Page: 1     Date Filed: 12/06/2013




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

                                                                            FILED
                                                                         December 6, 2013

                                     No. 12-41394                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



GEORGE BERGIN,

                                                  Plaintiff – Appellant
v.

LEWIS B. TATUM,

                                                  Defendant – Appellee



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 4:11-CV-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Appellant George Bergin appeals the district court’s grant of summary
judgment on qualified immunity grounds for defendant Lewis B. Tatum. We
AFFIRM.
                     FACTS AND PROCEDURAL HISTORY
       At around 5:30 p.m. on November 19, 2009, Kimberly Simpson, a City of
Sulphur Springs police officer, was dispatched to an area of Highway 19 in


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Sulfur Springs, located in Hopkins County, Texas, where ten to thirteen head of
cattle were roaming. The cattle were not branded or tagged. The police
department contacted approximately six potential owners of the cattle.
According to Simpson, Carolyn Bergin arrived on the scene and stated that the
cattle did not belong to her brother, appellant George Bergin (“Bergin”). Bergin
disputes that Carolyn Bergin made this statement, but admits that “I don’t know
what she said to the police. I wasn’t there at the time.”
        Simpson ran the cattle into a wooded area, but a few hours later, she
received a call that they had wandered back to the area around the highway.
She advised dispatch to send Rocky Rivera, a Hopkins County impound officer,
to round up and impound the cattle.                  Rivera arrived on the scene and
transported four head of cattle to his impound lot. During the impound process,
one of the cows ran into a pool and drowned, and three remained at large.
        The next day, November 20, 2009, George Bergin called Rivera asking to
inspect the cattle. Rivera was out of town, but gave Bergin directions to the
impound lot and told him that the impound fee was $950.1 Rivera told Bergin
that “if the cattle were his, he must pay the impound fee before he could take the
cattle off of the impound lot.” Later that day, Rivera returned to the impound
lot and found that the cattle were gone. Bergin admitted that he had taken his
trailer to the lot and took the cattle.
        Rivera called the Hopkins County Sheriff’s Office to report the missing
cattle. Criminal investigator Lewis B. Tatum interviewed Rivera, who said he
suspected that Bergin was responsible for the missing cattle. Rivera also told
Tatum about his conversations with Bergin. Tatum additionally interviewed
Officer Simpson, who reported Carolyn Bergin’s alleged statement that George
Bergin did not own the cattle.

        1
            According to Officer Simpson’s incident report, Rivera told Bergin the fee would be
$675.

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      On November 24, 2009, Tatum called Bergin’s home, but Bergin’s mother
said that Bergin was too busy to speak. On November 30, Tatum spoke to
Bergin by telephone and Bergin admitted that he took the cattle from the
impound lot without paying the fee. Bergin also said that he was too busy to
meet with Tatum.
      On December 2, 2009, Tatum filed a complaint against Bergin for Theft of
Livestock in violation of Texas Penal Code 31.03.          The complaint read, in
relevant part, that Tatum
      believe[s] that on or about the 20th day of November, 2009 . . .
      George Bergin, hereinafter styled Defendant, did then and there
      unlawfully appropriate, by acquiring and otherwise exercising
      control over, property, to-wit: less than ten head of cattle, of the
      value of less than $20,000, from Rogue Rivera, the owner thereof,
      and with intent to deprive the owner of the property.

      My reason for believing that the above Defendant committed the
      above offense is based upon evidence which I obtained in my official
      capacity as a peace officer during my investigation of this offense.
      Further, cattle impounded by Sulphur Springs Police Department,
      after having been disclaimed by [Carolyn] Bergin, acting as agent
      for defendant, defendant removed cattle from the impound pens
      where Rogue Rivera placed the cattle. Further, defendant admitted
      to Investigator Lewis Tatum that defendant removed the cattle.

      That same day, a Hopkins County Justice of the Peace found that probable
cause existed to arrest Bergin for theft of livestock and signed a warrant for his
arrest. Bergin was arrested and held at the Hopkins County Jail for
approximately 18 hours. After the impound fee was paid, apparently by one of
Bergin’s defense attorneys on Bergin’s behalf, the State dismissed the charges
against him.
      On January 3, 2011, Bergin filed suit against Simpson, Tatum, and
Hopkins County.      The complaint alleged that Simpson and Tatum made
materially false representations, and claimed violation of Bergin’s Fourteenth


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Amendment right to due process as well as a state claim of malicious
prosecution. Simpson and Hopkins County were subsequently dismissed from
the suit at the agreement of all parties, and the remaining parties agreed that
the case would be tried before a magistrate judge.
      Tatum moved for summary judgment. In deposition testimony, Tatum
admitted that he knew the cattle did not belong to Rivera, but that he did not
know at the time the complaint was filed—or at the time of the deposition—that
the cattle belonged to Bergin. However, when the complaint was filed, Tatum
knew that Bergin claimed ownership of the cattle. He stated that the prosecutor
had relied on the facts he laid out in the complaint to charge Bergin with theft.
Tatum provided his understanding that “if no one provides ownership of cows
that are impounded, the impound officer can at some point sell those cattle as
if he owned them.”
      Rivera submitted an affidavit stating that he was “the person designated
by the Sheriff of Hopkins County to sell any cattle that I impound when the
owner is not identified or when the impound fee is not paid.” Rivera relayed his
understanding that after cattle are impounded, if “an owner is never determined
or located . . . a person designated by the Sheriff[] has title over the animal and
can sell the animal at a public auction as if they are the owner” and that if an
owner is “determined or located, he can retrieve the impounded cattle only after
paying the impound fee.”
      The magistrate judge granted summary judgment to Tatum on November
14, 2012, on qualified immunity grounds. The magistrate judge found that even
if Tatum’s affidavit contained misstatements, a reasonable officer could
nonetheless find that the affidavit established probable cause without the
misstatements, because Bergin “had no right to take the cattle without paying
the impound fee” and “Rivera had a right to possess the cattle until that fee was
taken.” With regard to Bergin’s state law claim of malicious prosecution, the

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magistrate judge found both that there was no evidence that Tatum acted with
malice against Bergin, and that Tatum had official immunity under Texas law
for the same reasons he had qualified immunity under federal law.
                                 DISCUSSION
1.    Section 1983 Due Process Claim
      Tatum argues that his Fourteenth Amendment right to due process was
violated when Tatum placed “material misstatements and omissions” before a
Hopkins County justice of the peace, and that his affidavit was insufficient to
establish probable cause to arrest Bergin for theft of livestock.
      Tatum has asserted qualified immunity in response to Bergin’s due
process claim. To assess qualified immunity, “we decide (1) whether the facts
that the plaintiff has alleged make out a violation of a constitutional right; and
(2) whether the right at issue was clearly established at the time of the
defendant’s alleged misconduct.” Ramirez v. Martinez, 716 F.3d 369, 375 (5th
Cir. 2013) (internal quotation marks omitted).
      Bergin argues that Tatum did not have probable cause to arrest Bergin for
theft of livestock, for two reasons: first, because the complaint misidentified
Rivera as the owner of the cattle, and second, because Rivera did not have
statutory authority to impound the cattle. The summary judgment record does
arguably indicate at least a genuine issue of fact as to whether Tatum made
false statements in the complaint, including that Rivera was “the owner” of the
cattle and that Carolyn Bergin was “acting as agent for” George Bergin.
Misstatements in preparing an affidavit for a plaintiff’s arrest can form the basis
of a § 1983 claim where “the state had to concede that the search or seizure was
undertaken without probable cause.” Jureczki v. City of Seabrook, Tex., 760 F.2d
666, 668–69 (5th Cir. 1989); see also Crostley v. Lamar Cnty., Tex., 717 F.3d 410,
423 (5th Cir. 2013) (holding that “the deficiency of any one piece of evidence used
to demonstrate probable cause does not, on its own, mean that probable cause

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did not exist”); United States v. Privette, 947 F.2d 1259, 1260 (5th Cir. 1991)
(“Because the affidavit supports a finding of probable cause when read without
the challenged statements, the trial court did not err in denying [the
defendant’s] motion to suppress.”).
      Here, we cannot say that—even without the allegedly false statements—a
reasonable officer in Tatum’s position would have lacked probable cause to arrest
Bergin. “Probable cause exists when the totality of facts and circumstances
within a police officer’s knowledge at the moment of arrest are sufficient for a
reasonable person to conclude that the suspect had committed or was
committing an offense.” Ramirez, 716 F.3d at 375 (emphasis omitted). The
inquiry focuses on the validity of the arrest, not the validity of each individual
charge made during the course of the arrest. See Price v. Roark, 256 F.3d 364,
369 (5th Cir. 2001).
      A person commits theft under Texas law if they “unlawfully appropriate[]
property with intent to deprive the owner of property.” Tex. Penal Code §
31.03(a). Under Texas law, “[e]ven a true owner, who takes from one who is
lawfully in possession of property, may be guilty of theft.” Hudiberg Chevrolet,
Inc. v. Globe Indem. Co., 394 S.W.2d 792, 795 (Tex. 1965) (“There was a theft
when a mortgagor took possession of two horses he had placed in the possession
of another as security for a debt, and when the owner of a pistol took it from his
pledgee. There was a theft when an owner of a watch fraudulently took it from
the possession of the man holding it as security for repairs. There may be a theft,
when, as here, the ownership is in one person, and the possession is in
another.”).
      The Texas Agriculture Code provides that a sheriff, or the sheriff’s
designee, can impound an “estray” (meaning “stray livestock,” see Tex. Agric.
Code § 142.001 (“Definitions”)) if, inter alia, “the owner of the estray is
unknown.” Texas Agric. Code Ann. § 142.009(a)(1). After a certain amount of

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time has passed without anyone claiming ownership over the livestock, the
county acquires title, considered “vested in the sheriff or the sheriff’s designee”
for purpose of sale at auction. Id. at § 142.013(a). The owner of an estray “may
recover possession . . . at any time before the estray is sold” if, inter alia, “the
owner has provided the . . . sheriff’s designee with an affidavit of ownership,”
“the sheriff’s designee has approved the affidavit of ownership,” and “the owner
has paid all estray handling expenses.” Id. at § 142.010(a). In addition, the
sheriff is entitled to claim “a collection fee” in an amount “determined by the
sheriff,” and the owner may only challenge the amount of that fee by petitioning
the justice court. Id.
      There is no dispute in the record that Bergin took the cattle from the
impound lot without permission, without establishing any proof of ownership,
and without paying the impound fee or any expenses. Tatum was aware of these
facts, and he was also aware that Bergin’s sister had allegedly disclaimed
Bergin’s ownership; that Rivera had impounded the cattle pursuant to his
official duties; and that Bergin had asked Rivera to “inspect” the cattle to
determine if they were his. Because Texas law does not allow a purported owner
to recover impounded livestock without proof of ownership and other
requirements, we cannot say that a reasonable officer in Tatum’s position could
not have concluded that Bergin took the cattle without legal authority.
      Bergin also argues, for the first time on appeal, that Rivera did not have
statutory authority as Hopkins County’s impound officer because Simpson, who
instructed Rivera to impound the cattle, worked for the city police department
rather than the county sheriff.      Bergin has waived this argument by not
asserting it before the district court. See Martco Ltd. Partnership v. Wellons,
Inc., 588 F.3d 864, 877 (5th Cir. 2009) (“We may only affirm an order granting
summary judgment on a basis that was presented to the district court,” because



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“arguments not raised before the district court are waived and cannot be raised
for the first time on appeal.”).
2.    Malicious Prosecution
      Bergin’s claim for malicious prosecution under Texas law requires proof
that, inter alia, Tatum lacked probable cause to initiate the prosecution and that
Tatum acted with malice. See Kroger Texas Ltd. Partnership v. Suberu, 216
S.W.3d 788, 793 n.3 (Tex. 2006). “Texas recognizes an ‘official immunity’ defense
to state law claims such as malicious prosecution.” Crostley, 717 F.3d at 424
(citing Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)). “Texas law of
official immunity is substantially the same as federal qualified immunity.” Id.
(internal quotation marks and citation omitted).     Where officers “reasonably
believed they had probable cause to proceed against” a plaintiff under the federal
qualified immunity analysis, the plaintiff “cannot assert a claim for malicious
prosecution” under Texas law. Id. (quoting Hart v. O’Brien, 127 F.3d 424, 452
(5th Cir. 1997)). Because we conclude that a reasonable officer in Tatum’s
position could have concluded that probable cause existed, we therefore hold that
Tatum is entitled to official immunity under Texas law.
                                   CONCLUSION
      For the foregoing reasons, we AFFIRM the magistrate judge’s grant of
summary judgment to defendant.




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