Clark v. Tarrant County, Tex., Civ. A. No. 4-82-260 K.

• Decision Date: 20 March 1985
• Docket Number: Civ. A. No. 4-82-260 K.
• Citation: 608 F. Supp. 209
• Parties: Augusta CLARK, Vicki Hammond and Brenda Buckner v. TARRANT COUNTY, TEXAS and Tarrant County Adult Probation Department.
• Court: U.S. District Court — Northern District of Texas

608 F. Supp. 209

Augusta CLARK, Vicki Hammond and Brenda Buckner v. TARRANT COUNTY, TEXAS and Tarrant County Adult Probation Department.

Civ. A. No. 4-82-260 K.

United States District Court, N.D. Texas, Fort Worth Division.

March 20, 1985.

Art Brender, Fort Worth, Tex., for plaintiff.

Donald K. Buckman, Robert S. Travis, Cantey Hanger Gooch Munn & Collins, Tim Curry, Crim. Dist. Atty., Matthew A. King, Asst. Dist. Atty., Fort Worth, Tex., for defendants.

MEMORANDUM OPINION

BELEW, District Judge.

There is pending before the Court Defendant Tarrant County's Motion to Dismiss pursuant to Rule 12(b)(7) and Rule 12(b)(6)¹ as well as the Motion of Defendant Tarrant County Adult Probation Department ("TCAPD") for Summary Judgment and Dismissal pursuant to Rule 12(b)(1).

Plaintiffs brought this action alleging that the TCAPD and the County discriminate against female probation officers with regard to salary and promotions within the TCAPD in violation of 42 U.S.C. §§ 1983, 1985, 2000e et seq., and the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiffs are seeking declaratory and injunctive relief, back pay, costs, and attorneys' fees.

The County argues, in essence, that no claim upon which relief could be granted has been stated against it because it is an entity wholly distinct from the TCAPD and Plaintiffs' grievances concern the TCAPD only. The TCAPD argues that we lack jurisdiction on the Section 2000e claim because, based on Texas statutes and customs which define the nature of Plaintiffs' positions, they are not "employees" within the meaning of 2000e(f). It argues that we lack jurisdiction on all other claims because the TCAPD is an arm of the state and, hence, immune under the Eleventh Amendment. After an oral hearing in which testimony and written documents were received into evidence and after careful consideration of the motions, responses, briefs and affidavits, the Court has determined that there is no genuine issue of material fact and renders judgment in favor of both Defendants for the reasons set forth in the following findings of fact and conclusions of law.

Findings of Fact

1. Plaintiffs Augusta Clark, Vicki Hammond, and Brenda Buckner are, or were in the time period relevant to this lawsuit, female probation officers for the TCAPD.

2. The TCAPD and the other adult probation departments around the state were created by Art. 42.12 of the Texas Code of Criminal Procedure. Under Art. 42.12, the adult probation offices which exist in Texas are under the direct supervision of the state judiciary.

3. Art. 42.12, § 1, Tex.Code Crim.Proc. states:

It is the purpose of this Article to place wholly within the State courts of appropriate jurisdiction the responsibility for determining when the imposition of sentence in certain cases shall be suspended, the conditions of probation, and the supervision of probationers, in consonance with the powers assigned to the judicial branch of this government by the Constitution of Texas.

4. Art. 42.12, § 10(a), Tex.Code Crim. Proc. states that the state district judges trying criminal cases shall establish a probation office and employ the necessary district personnel. Subsection (b) provides that when more than one probation officer is required, the state judges shall appoint a Chief Probation Officer who, with the judge's approval, shall appoint assistants and other employees.

5. State district judges are responsible for running the TCAPD and the salaries of the probation officers are paid from the funds of the state judicial district.

6. Chief probation officers are appointed by district judges. The chief probation officers then, pending the approval of their district judge, appoint the other probation officers.

7. The principal source of income for general operating expenses of the TCAPD is an appropriation made by the Texas legislature every two years. Fees paid by probationers supply the remainder.

8. The County does not hire, fire, supervise, or pay the salaries of adult probation officers.

9. The only official involvement that the County has with the TCAPD is that it is required by statute to provide physical facilities, equipment, and utilities as well as enter into a contract with the district judges allowing probation officers to participate in that county's group insurance or self insurance programs and in the retirement plan.

10. Any judgment that Plaintiffs might obtain in this case could be satisfied only from state funds.

Conclusions of Law

A. The County Defendant

Plaintiffs' sole rationale for suing the County is their initial belief that Tarrant County was their employer while they were at the TCAPD. See First Amended Complaint, ¶ III. Based on our finding of fact with respect to the lack of a significant relationship between the TCAPD and the County,² we dismiss the cause of action against the County pursuant to Rule 12(b)(6). See Tex.Code Crim.P. art. 42.12; see generally Shore v. Howard, 414 F.Supp. 379, 384-85 (N.D.Tex.1976) (Mahon, J.) (official acts of TCAPD held to be done as agent for judges); Op.Atty.Gen. 1983, No. MW-542 (each judicial district is required to establish and maintain its own district probation office).

B. The TCAPD

The TCAPD is a creation of the State of Texas and is an extension of the state judiciary. See supra Findings of Fact 2-10; Shore 414 F.Supp. at 384-85. Therefore, a lawsuit against the TCAPD is a lawsuit against the state. See Johnson v. Texas Department of Corrections, 373 F.Supp. 1108 (S.D.Tex.1974) (lawsuit against Department of Corrections is lawsuit against the state); Hughes v. Turnpike Authority of Kentucky, 353 F.Supp. 1105 (E.D.Ky.1973) (lawsuit against the Authority which had no meaningful existence apart from Kentucky Highway Department is lawsuit against state); Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.1976) (lawsuit against Texas Tech is lawsuit against state).³ By virtue of the Eleventh Amendment⁴ and judicial interpretation thereof, a state enjoys immunity from lawsuits brought against it by its own citizens. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1898). A state's judicial system shares sovereign immunity and since the TCAPD is part of that system, it, too, is generally immune from suit. See NAACP v. State of California, 511 F.Supp. 1244, 1257-58 (E.D.Cal.1981); Louis v. Supreme Court of Nevada, 490 F.Supp. 1174, 1180 (D.Nev.1980); see also Lokey v. Richardson, 534 F.Supp. 1015, 1019 (N.D.Cal.1982) ("the California Adult Authority is ... absolutely immune from liability") rev'd on other grounds, 527 F.2d 949 (9th Cir.1975) reversal vacated, 540 F.2d 1022 (9th Cir.1976), rev'd on other grounds, 600 F.2d 1265 (9th Cir.1979).

A State's sovereign immunity, and thus, the TCAPD's immunity, is not absolute, however; it can be sued if it expressly consents, see, e.g., Florida Department of Health v. Florida Nursing Home Association, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981)⁵ or it can be sued if Congress has expressly abrogated its immunity by federal statute. The Supreme Court has held that both Title VII and, to a far lesser extent, Section 1983 limits a state's sovereign immunity. See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Edelman v. Jordan, 415 U.S. 651, 675-678, 94 S.Ct. 1347, 1361-1363, 39 L.Ed.2d 662 (1974). Hence, our inquiry focuses on whether Plaintiffs have stated a claim under either of these two federal provisions such that the TCAPD's immunity is abrogated. We shall examine the Title VII claim first.⁶

In general, Title VII affords relief to an employee who claims discrimination from an "employer" as both of those terms are defined in the statute. The definition of "employee" is found at 42 U.S.C. § 2000e(f) and provides:

(f) The term "employee" means an individual employed by an employer, except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision.

In deciding whether an individual who is in one sense an "employee" of the state within the everyday meaning of the word, is also not an "employee" of the state within the meaning of Title VII, this Court must look to federal rather than state law. Calderon v. Martin County, 639 F.2d 271 (5th Cir.1981). State law is relevant only in so far as it defines the responsibilities and powers of a position and is thereby probative of whether one who holds that position is within the "personal staff" exception to Title VII found in 42 U.S.C. § 2000e(f).

The pertinent case law on the "personal staff" exception focuses on the relationship between the elected officials and assistants. In Owens v. Rush, 654 F.2d 1370 (10th Cir.1981), the Court held that an "undersheriff" was not covered by Title VII where the "undersheriff" served at the pleasure of his superior who had plenary powers of appointment and removal. The "undersheriff" was personally accountable to only the sheriff who was "both politically and civilly liable for any default or misconduct of the undersheriff in the performance of his official duties." Id. at 1376.

The Plaintiffs argue, correctly, that the legislative history of this Title VII exception shows that it was intended to be construed "narrowly." They insist that although Rush may apply to the head or chief probation officer, the Plaintiffs in this case do not have the same relationship with the district judge that the "undersheriff" had with the "sheriff" in Rush. That is, the...