Tex. Gov’t Code Chapter 614 complaint procedures do not create a constitutional property interest to employment says U.S. 5th Circuit.
Stem v. Gomez No. 15-50264 (5th Cir. February 8, 2016)
This is an appeal from a dismissal for failure to state a claim where the United States 5th Circuit Court of Appeals reversed in part and affirmed in part a constitutional claim under chapter 614 of the Texas Government Code.
Stephen Stem, a second-year officer at the Hearne Police Department, was dispatched to the Golden’s residence where Roy Jones, Golden’s nephew pulled a gun on him. Stem shot and killed Jones. The City terminated Stem. A grand jury no billed Stem for the shooting. Stem brought §1983 claims against the City and individual officials asserting Chapter 614 of the Texas Government Code provided him a protected property interest in his job, entitling him to bring a deprivation of property claim without due process. The trial court dismissed Stem’s claims after the City filed a Rule 12 motion to dismiss for failure to state a claim. Stem appealed.
Tex. Gov’t Code §614.023 provides that a law enforcement officer cannot be disciplined or terminated for disciplinary purposes unless done pursuant to a signed complaint. The 5th Circuit panel first determined that if the challenge to jurisdiction “is also a challenge to the existence of a federal cause of action,” a district court should assume jurisdiction exists and “deal with the objection as a direct attack on the merits of the plaintiff’s case.” Stem properly pled relief under §1983 as far as jurisdiction goes and the trial court blurred jurisdiction with merits. The Rule 12 motion was improperly granted as far as jurisdictional grounds is concerned. However, Jone’s still had to properly plead facts to support a merit determination. Stem asserts that §614.023, particularly subsection (c) which established a procedure for addressing complaints, provided him with a constitutionally protected property interest in his job. The court held a property interest “cannot be defined by the procedures provided for its deprivation.” Section 614.023 certainly does not explicitly provide that an officer facing a complaint can only be terminated for cause. The section also does not resemble other statutes which clearly create a property interest in employment. Before a property interest would exist, §614.023 would have to constrain the city in a meaningful way from discharging a protected employee. There is no property right if rules only provide considerations for the exercise of discretion. Pre-termination procedures do not create property rights. The trial court did not error in dismissing Stem’s §614.023/constitutional due process claim. In other words, there is jurisdiction to hear the §614.023 claim, but Stem loses on the ability to state a claim for it. [Comment: the panel appears to be drawing a distinction between Rule 12(b)(1) and 12(b)(6) and which one should have been the grounds for dismissal by the trial court.] The court next held the trial court properly dismissed the Mayor in his official capacity since the complaint is simply that the Mayor recommended dismissal to the council. However, Stem should have been given the opportunity to amend in relation to the dismissal of several state law claims which would seek prospective relief from individual officials. Not to provide the opportunity was error without a proper explanation. The court, though, remanded expressly for the trial court judge to provide an explanation on the grounds for denying the leave to amend.
If you would like to read this opinion click here. Panel: PRADO, SOUTHWICK, and GRAVES. Opinion by Justice Southwick. The attorney for Stem is listed as Royce John Cullar, Jr.. The attorney listed for the City Defendants is Charles Alfred Mackenzie.
