Dixon v. McMullen, Civ. A. No. 4-80-443.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
Writing for the CourtBELEW
Citation527 F. Supp. 711
PartiesDelmas W. DIXON, Plaintiff, v. K. P. McMULLEN, Jr., et al., Defendants.
Docket NumberCiv. A. No. 4-80-443.
Decision Date18 November 1981



David R. Richards and Mary F. Keller, American Civil Liberties Union, Austin, Tex., for plaintiff.

Mark White, Atty. Gen. of Tex., Ann Kraatz, Asst. Atty. Gen., Gerald C. Caruth, Asst. Atty. Gen., Austin, Tex., for defendants.


BELEW, District Judge.

This is a civil rights case. Plaintiff, a convicted ex-felon, who was pardoned twenty years later by the Governor of the State of Texas, alleges that his constitutional rights were abridged because he was denied certification as a police officer by the Texas Commission on Law Enforcement Officer Standards and Education. The trial was before this Court and lasted one day. The following findings of fact and conclusions of law are entered according to Federal Rules of Civil Procedure 52(a) and 58.

I. Factual Background

These material facts are not in dispute:

1. Delmas W. Dixon was born on October 13, 1938 in Fort Worth, Texas.

2. In 1957, Plaintiff was honorably discharged from the United States Navy after two years of service.

3. On November 14, 1960, Plaintiff pled guilty to a charge of robbery in Tarrant County, Texas, and was sentenced to confinement in the State Penitentiary for five (5) years. That sentence was probated.

4. On March 10, 1964, Delmas Dixon was discharged from probation. Consequently, Plaintiff's motion for new trial was granted, and his case dismissed in accordance with Tex.Code Crim.Pro.Ann. art. 42.12(7)(Vernon 1979).

5. In 1975, Plaintiff entered the River Oaks Police Academy, and later completed the training. On either false or incomplete information submitted to the Texas Commission on Law Enforcement Officer Standards and Education hereinafter "the Commission" relating to his criminal record, Plaintiff was certified by the Commission. Thereafter, he began his duty with the City of River Oaks, Texas as a reserve police officer.

6. From 1976 until 1979, Plaintiff worked as a full-time officer with the City of Azle, Texas, eventually rising to the rank of Patrol Sergeant. In 1979, Mr. Dixon resigned and re-entered private business.

7. On June 9, 1980, Plaintiff was granted a general pardon by the Governor of the State of Texas. However, the pardon was not granted on the basis of subsequent proof of innocence.

8. In approximately August, 1980, Plaintiff was re-hired by the City of River Oaks, Texas. He worked a couple of weeks and then resigned. On November 17, 1980, Plaintiff was denied a certification to be a reserve police officer for the City of Blue Mound, Texas. The denial was based on Plaintiff's prior felony conviction.

9. The Commission is delegated the responsibility by the Texas Legislature to establish minimum educational, training, physical, mental, and moral standards for admission to employment and certification as a reserve police officer, pursuant to Tex. Rev.Civ.Stat.Ann. art. 4413(29aa)(Supp.1980).

10. Article 4413(29aa) provides that no person convicted of a felony may be certified as a police officer.1 Article 4413(29aa) also provides that once certified, a police officer retains such certification, absent its revocation by the Commission. Should a police officer resign, be fired, or his appointment be terminated for whatever reason, his certification automatically would expire. If the officer sought appointment with another law enforcement agency, he would be required to once again seek certification.

II. Parties

Plaintiff Delmas A. Dixon is a citizen of Fort Worth, and Tarrant County, Texas.

Defendant Ken P. McMullen, Jr., is the Chief of Police of Blue Mound, Tarrant County, Texas. He did not hire Plaintiff because he had been denied certification pursuant to the Texas Statute. Defendant McMullen is sued in his official capacity only.

Defendant Fred Toler is the Executive Director of the Texas Commission on Law Enforcement Officer Standards and Education, and as such, is responsible for the enforcement of its rules and regulations. He is sued in his official and individual capacity.

Defendants Dewey Presley, Dan Saunders, Walter Rankin, James Adams, Dr. Kenneth Ashworth, Allan Bowen, David Collier, Henry Gardner, Richard Ingram, Rex Kelly, Emil Peters, Mark White, and Louise Wing are responsible for establishing rules and regulations for the certification of police officers. They are sued in their individual and official capacities.

Defendant State of Texas is sued as the Governmental entity responsible for depriving Plaintiff of his civil rights by enforcing a statute which automatically excludes any and all felons from consideration as police officers.

III. Plaintiff Allegations

Plaintiff asserts he should be certified as a police officer because of the effect of his pardon. As a result of the denial, he alleges violations of the equal protection and due process clauses. Under the equal protection argument, Plaintiff contends (1) there is no rational relationship underlying his criminal record and his ability to be an effective police officer; (2) he was rejected solely because of his felon status, and thus arbitrarily and irrationally treated differently; (3) that the statute is simultaneously overbroad (not sufficiently specifically tailored to limit the statute to conform to a legitimate state interest) and underbroad (allowing those with numerous misdemeanors to be police officers, while denying those with one felony); and (4) arbitrarily certifying those ex-felons before 1975, yet excluding those after 1976.

Under the due process argument, Plaintiff asserts his procedural due process rights were violated because no hearing was allowed. Specifically, that such factors as the nature of the offense, recentness of the offense, subsequent dismissal from the court's docket, Plaintiff's involvement in the offense, any rehabilitation, i.e., his unblemished record for twenty years, public service as a police officer for four years, and a full pardon by the Governor of Texas, were not considered in order to provide for an individualized analysis. Thus, Plaintiff alleges there is no possibility of demonstrating that he now satisfies the underlying purposes of the statute.

Plaintiff prays for this Court to assume jurisdiction, to restrain and permanently enjoin Defendants from enforcing the statute, to determine the statute unconstitutional, and to award damages and attorney's fees.

IV. Defendants Response

Defendants assert several contentions: (1) the Court should abstain to first permit Texas courts to consider the issues of state law; (2) the complaint fails to state a cause of action against these Defendants in their individual capacity; (3) the Court lacks jurisdiction to entertain a suit for damages against the State of Texas and the individual Defendants in their official capacity; (4) a pardon based on anything besides subsequent proof of innocence is irrelevant; (5) there is no legal support for a right to a hearing and a case-by-case analysis; (6) there is no violation of the equal protection clause as Plaintiff is not a member of a suspect classification, and thus the concern for public health, safety, and morals underscores the rational relationship standard; (7) there is no procedural due process violation, as the statute is not an arbitrary and unreasonable exclusion; and (8) Defendants assert this is a frivolous lawsuit and request attorney's fees.

V. Jurisdiction

This case is brought under 42 U.S.C. §§ 1983, 1988, 28 U.S.C. §§ 1331, 1343, 2201, 2202, and the Fourteenth (14th) Amendment. There was no request made for a three-judge panel, as possible under 28 U.S.C. §§ 2281, 2284. Connor v. Hutto, 516 F.2d 853, 855 (8th Cir. 1975); Mildner v. Gulotta, 405 F.Supp. 182, 184 (E.D.N.Y. 1975), affirmed, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976). The Court will not abstain, see Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981); High Ol' Times v. Busbee, 621 F.2d 135 (5th Cir. 1980); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); U. S. v. Composite State Bd. of Med. Examiners, 656 F.2d 131 (5th Cir. 1981), and regarding the exhaustion doctrine, the Court is satisfied Plaintiff has met the applicable principles, see generally: Patsy v. Florida Eastern University, 634 F.2d 900 (5th Cir. 1981). This Court, therefore, notes probable jurisdiction.

Issue 1

What is the legal effect, under Texas law, of a pardon granted by the Governor?

VI. Pardon

The Texas Constitution gives the Governor of Texas power to grant pardons in criminal matters. "In all criminal cases, except treason and impeachment, the Governor shall have power, after conviction, on the written signed recommendation and advice of the Board of Pardons and Paroles, ..., to grant ... pardons ...." Article Four, Section Eleven; see also: Tex.Code Crim.Pro.Ann. art. 48.01 (Vernon 1979); Hankamer v. Templin, 143 Tex. 572, 187 S.W.2d 549, 550 (1945). The only civil power he possesses is to remit fines and bond forfeitures.

The meaning of a pardon is both interesting and historical. Originally, under English law, there were several kinds of pardons: general, special or particular, conditional, absolute, and statutory. The King of England had the power to set aside orders of the Court. He alone could do so for the Court had no power over its final judgment. As Lord Coke once wrote, "A pardon is a work of mercy, whereby the King, either before attainder, sentence, or conviction, or after, forgiveth any crime, offense, punishment, execution, right title, debt, or duty, temporal, or ecclesiastical." 3 Inst. 233. Prior to the Revolution, the American Colonies, being in effect under the laws of England, were accustomed to the exercise of it in various forms....

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    ...to a case that was subsequently dismissed, and then received a gubernatorial pardon, could be eligible to serve as a police officer. 527 F.Supp. 711 (N.D.Tex.1981). Because the pardon was not issued on the basis of proof of innocence, the underlying guilt of the offense remained regardless ......
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    ...binding upon this court and that several federal courts have reached opposite conclusions on similar issues, citing Dixon v. McMullen, 527 F.Supp. 711 (N.D.Texas 1981), and In Re Naturalization of Quintana, 203 F.Supp. 376 3 The Commission relies on Attorney General Opinion 070-157, which c......
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