Batterton v. Texas General Land Office

• Decision Date: 03 March 1986
• Docket Number: No. 84-1961,84-1961
• Citation: 783 F.2d 1220
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: 121 L.R.R.M. (BNA) 3391, 1 Indiv.Empl.Rts.Cas. 914 John BATTERTON, et al., Plaintiffs-Appellants, v. The TEXAS GENERAL LAND OFFICE, et al., Defendants-Appellees.

Page 1220

783 F.2d 1220

121 L.R.R.M. (BNA) 3391, 1 Indiv.Empl.Rts.Cas. 914

John BATTERTON, et al., Plaintiffs-Appellants, v. The TEXAS GENERAL LAND OFFICE, et al., Defendants-Appellees.

No. 84-1961.

United States Court of Appeals Fifth Circuit.

March 3, 1986.

Rehearing Denied May 12, 1986.

Connie Ode, Bunton, Nolan, Ode & Cooper, Margaret A. Cooper, Austin, Tex., for plaintiffs-appellants.

F. Scott McCown, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before GEE, RUBIN and DAVIS, Circuit Judges.

GEE, Circuit Judge:

Today's case requires us to decide whether the dismissal of four employees of the Texas General Land Office (GLO) violated their constitutional rights. The appellant employees maintain that a Texas statute grants them a property interest in their jobs or, in the alternative, that informal practices within the department do so, as well as that their discharges violated first amendment rights. The trial court entered summary judgment against them, and we affirm.

Appellants were employees of the GLO in January 1983, when appellee Garry Mauro took office as Land Commissioner. Claiming a need for reorganization, Mauro moved swiftly to dismiss employees, discharging the four appellants as of the end of May 1983. Shortly afterwards, they brought a 42 U.S.C. Sec. 1983 action against Mauro and the GLO (hereinafter referred to collectively as Mauro). The original complaint asserted a reasonable expectation of continued employment so long as they satisfactorily performed their duties and that consequently Mauro violated their procedural due process rights by dismissing them without satisfactory cause or a fair hearing. When Mauro moved for summary judgment in July 1984, the employees amended their complaint to add a nebulous first amendment claim--unavailingly, in the event, as the district court entered summary judgment against them on the entire case in September 1984. See Batterton v. Texas General Land Office, 593 F.Supp. 372 (W.D.Texas 1984). The employees appeal.

In reviewing the appeal, we first note the conceptual difference between the due process and the first amendment claims. As the Supreme Court has made clear, the two are distinct:

... [E]ven though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially his interest in freedom of speech.

Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). Separate consideration of the two claims is therefore appropriate.

THE DUE PROCESS CLAIM

The employees assert a property interest in their jobs, invoking the line of Supreme Court cases that began with Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Sindermann. Considering a teacher's asserted right of continued employment, the Roth court refused to base the concept of property on an employee's mere expectation; "[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must have a legitimate claim of entitlement to it." 408 U.S. 577, 92 S.Ct. 2709. The due process clause can protect a public employee, however, should state law provide the basis of an employee's legitimate claim to entitlement:

... [Property interests] are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Id; see also Bishop v. Wood, 426 U.S. 341, 344-45, 96 S.Ct. 2074, 2077-78, 48 L.Ed.2d 684 (1976). If a property interest exists, procedural due process then accords such rights as those to notice and a hearing before the employee may be fired. We must first see, therefore, whether Texas law provides GLO employees with any legitimate claim of entitlement to their jobs.

The district court accurately labeled Sec. 31.020, Texas Natural Resources Code, as "the center of the maelstrom." 593 F.Supp. at 373. Dealing with the conditions of employment for GLO employees, Sec. 31.020 provides:

(b) Clerks and employees of the land office shall hold their offices and positions at the pleasure of the commissioner and may be removed by him at any time for satisfactory cause.

Although the parties advance differing interpretations of this provision, the simple truth is that neither we nor anyone else can tell with any real assurance what it was that the Texas legislature intended when it originally enacted this statute over a century ago, in 1879. Obvious ambiguity results from the provision's contradictory phrases: On the one hand, one who holds his jobs "at the pleasure of the commissioner" sounds a great deal like an at-will employee; on the other, dismissal "for satisfactory cause" seems to restrict the commissioner's ability to fire his employees to discharges for cause. We have found no Texas case interpreting the quoted provision, nor does any legislative history exist.

Texas common law, however, provides rules of statutory interpretation, rules that we shall consider in construing Sec. 31.020. Our reference to these is not mandated by Erie RR Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny; subject-matter jurisdiction today is based on a federal question, not on diversity of citizenship. Reason dictates, however, that in deriving a meaning from the statute's words we should approach them exactly as would a Texas court, since had we discovered an authoritative interpretation by such a court we would have adopted it and since, should any come later, it will of necessity supersede ours. It would make little sense for us to proceed to an aberrant construction by refusing to apply state canons, canons which will in all probability govern any authoritative construction which the statute ever receives. Turning to these, we find them dispositive.

In Stanford v. Butler, 142 Tex. 692, 699-702, 181 S.W.2d 269, 273-74 (1944), the court held that if an ambiguous statute "has been construed by executive officers of the state charged with its execution, and it has subsequently been re-enacted without substantial change in language, it will continue to receive the same construction." Because Sec. 31.020 has been re-enacted several times, most recently in a 1977 codification, evidence of past commissioners' interpretations becomes crucial. Appellees submitted affidavits of three former chief clerks of the GLO in support of their summary judgment motion. These men, whose combined years of service stretched from 1940 to 1983, all swore that the commissioners under whom they had served uniformly interpreted Sec. 31.020 as granting them the power to fire any employee for any reason. The employees presented no evidence contradicting these affidavits; and while they point to an office policy manual and to current customs, none of these predates the 1977 codification of the statute. Stanford therefore teaches us that the 1977 codification of Sec. 31.020 transformed the commissioners' existing interpretation of the statute into law, and that GLO employees can be fired for any reason.

We note that while even standing alone Stanford would mandate this conclusion, other rules bolster its force. Texas law, for example, would regard the ambiguity of Sec. 31.020 as requiring an interpretation favorable to the GLO:

[L]egislative grants of property, rights or privileges must be construed in favor of the state on grounds of public policy and whatever is not unequivocally granted in clear and explicit terms is withheld. Any ambiguity or obscurity in terms of the statute must operate in favor of the state.

State v. Standard, 414 S.W.2d 148, 153 (1967), quoting Empire Gas & Fuel Co. v. State, 121 Tex. 138, 157-59, 47 S.W.2d 265, 272 (1932). Those unpersuaded by the authority of Stanford would therefore confront further obstacles to any contrary result.

Our interpretation complete, we must now acknowledge that the letter of state law alone is not necessarily determinative. In Roth, the Court held that property interests "are created and their dimensions are defined by existing rules or understandings that stem from ... state law." 408 U.S. at 577, 92 S.Ct. at 2709. (emphasis added); see also Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (teacher can have property interest in his job even absent formal contractual tenure provision if an informal understanding with the college administration existed). We have taken our cue from these cases to recognize that a property right might be based on "mutually explicit understandings." See, e.g., Wells v. Hico Independent School District, 736 F.2d 243, 252 (5th Cir.1984), cert. dismissed --- U.S. ----, 106 S.Ct. 11, 87 L.Ed.2d 672 (1985), quoting Sindermann, 408 U.S. at 601, 92 S.Ct. at 2699. In today's case, the employees introduced affidavits and depositions asserting that GLO practice during their period of employment (from about 1978 to 1983) was to provide adequate notice of planned dismissal and the opportunity to improve one's performance. On appeal, they argue that this practice sufficed to create a legitimate claim of entitlement protected by the fourteenth amendment.

Once Sec. 31.020 is construed as establishing at-will employment, however, cases such as Sindermann became readily distinguishable from today's. They are all cases in which no statute resolved whether a property interest in one's job existed. The Supreme Court's holding that an informal understanding may lead to a property interest must therefore be recognized...