Gonzalez v. County of Hidalgo, Texas

• Decision Date: 26 December 1973
• Docket Number: No. 72-1648.,72-1648.
• Citation: 489 F.2d 1043
• Parties: Delia GONZALEZ et al., Plaintiffs-Appellants, v. COUNTY OF HIDALGO, TEXAS, and Weslaco Labor Camp et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

489 F.2d 1043 (1973)

Delia GONZALEZ et al., Plaintiffs-Appellants, v. COUNTY OF HIDALGO, TEXAS, and Weslaco Labor Camp et al., Defendants-Appellees.

No. 72-1648.

United States Court of Appeals, Fifth Circuit.

December 26, 1973.

George P. Powell, Pharr, Tex., Robert H. Kern, III, Alice, Tex., for plaintiffs-appellants.

Travis Heister, Edinburg, Tex., for defendants-appellees.

Before BROWN, Chief Judge, MOORE^* and RONEY, Circuit Judges.

MOORE, Senior Circuit Judge:

Delia Gonzalez appeals from the dismissal of an action brought on behalf of herself and three infant children in which she sought injunctive relief and damages based on a claim that appellees deprived her of the constitutional right to due process of law. In her complaint Mrs. Gonzalez alleged that she was denied due process when defendant-appellee landlord, the Housing Authority of Hidalgo County, Texas, ("the housing authority"), seized without notice or hearing, for nonpayment of rent, all her belongings from the dwelling she was renting. The district court for the Southern District of Texas held that Mrs. Gonzalez had not been denied her constitutional rights and dismissed the complaint. We reverse and remand the case to the district court for the reasons discussed below.

We emphasize at the outset and throughout the opinion that we are not dealing with the validity of such clauses in private contracts between private parties. Rather we deal with admitted state action—the form of a contract executed by an arm of the State of Texas.

The facts, briefly summarized, are these. Plaintiff-appellant Delia Gonzalez, twenty years old and the mother of three at the time she commenced this action, was made a party to a lease contract in June of 1970 when her husband, Baldemar Gonzalez, a Mexican migrant farm laborer, executed a lease for housing in the Weslaco Labor Camp, a labor camp for migrant workers operated by appellee housing authority pursuant to Vernon's Ann. Texas Revised Civil Statutes Article 1269k § 23a.¹ The tenth clause of the form lease signed by Gonzalez provided as follows:

The tenant further agrees that the landlord shall have a lien for the payment of rent and all other obligations arising under this lease, upon all goods, chattels, fixtures and personal property of the tenant, which are or may be put on the leased premises, and on default of payment of any such obligations by the tenant, the landlord is hereby authorized to enter upon the premises and remove all and sell said goods, chattels, fixtures and personal property either at a public or private sale, without notice, and to apply the proceeds of such sale to the expense of foreclosure of this lien and the said unpaid obligations of the occupant, the balance, if any, of such proceeds, is to be paid to the tenant. emphasis added

Appellant and her husband and children lived at the Weslaco Labor Camp until October of 1970, at which time they locked up their apartment and migrated north to search for farm work, leaving behind certain items of furniture, household goods, and clothing.² Neither appellant nor her husband informed the housing authority that they were leaving, or for how long. When they left, they owed rent for the month of October. The husband returned in December to pay the October rent, then went back up north to continue working. In January of 1971 appellant and her three children were abandoned by the husband in Illinois. In February she returned to the Weslaco Labor Camp to find that the housing authority had entered her premises and, pursuant to Clause 10 of the lease, had removed all her belongings for the non-payment of rent. In April she requested that her property be returned; she was informed that she would have to pay all the rent owing before the property would be returned. In May she was able to pay $20 of the amount owing. She still owes $105. On September 8, 1971, she instituted suit to recover her property, at which occurrence the housing authority returned certain of her belongings. Federal court jurisdiction was based on 42 U.S.C. § 1983 and 28 U.S.C. § 1331.

On January 3, 1972, by Memorandum Opinion, the district court denied all relief and dismissed the action, holding that the contract was valid under Texas law and exempt from the restrictive provisions of the Texas Landlord Lien Law, Vernon's Ann.Texas Revised Civil Statutes Article 5238a,³ and that the summary seizure of appellant's property and its detention did not deprive Mrs. Gonzalez of her constitutional right to due process since her husband, by virtue of Clause 10 of the lease, had "knowingly waived by contract any pre-seizure notice." In so ruling the court stated:

Judicial notice has been taken that form leases are put before tenants on an "accept this or get nothing" basis, and that needy tenants are compelled to sign without any real freedom of contract citation omitted. However, there is evidence before the Court that the terms and provisions of this contract were explained to Baldemar Gonzalez, prior to his signing on behalf of himself and Plaintiff.

Baldemar Gonzalez did not testify at the proceeding below. The district court did not specify what evidence was adduced by appellee housing authority to establish that Baldemar Gonzalez, apparently uneducated and speaking little English, had understood that he was waiving his and appellant's constitutional rights to notice and hearing prior to seizure of their property. The narrow issue on appeal is whether the district court erred in ruling that, on the facts presented, appellant's husband had validly waived the right to notice and hearing. Since we are of the opinion that the record is devoid of substantial proof that Gonzalez "voluntarily, intelligently and knowingly" waived a constitutionally protected right, Fuentes v. Shevin, 407 U.S. 67, 94-95, 92 S.Ct. 1983, 32 L.Ed.2d 556; rehearing denied, 409 U.S. 902, 93 S.Ct. 177, 34 L.Ed.2d 165 (1972); D. H. Overmyer Co., Inc. v. Frick Co., 405 U.S. 174, 185-86, 92 S. Ct. 775, 31 L.Ed.2d 124 (1972), we vacate the district court order and remand for a finding on the important question of whether appellee housing authority presented evidence adequate to rebut the strong presumption against waiver of constitutional rights, Fuentes, supra, 407 U.S. at 94 n. 31, 92 S.Ct. 1983; Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177 (1937); Brookhart v. Janis, 384 U.S. 1, 4, 86 S. Ct. 1245, 1247, 16 L.Ed.2d 314 (1966) ("There is a presumption against the waiver of constitutional rights, * * * and for a waiver to be effective it must be clearly established that there was `an intentional relinquishment or abandonment of a known right or privilege.'" citations omitted.⁴

The Supreme Court in Fuentes v. Shevin, supra, and in numerous other cases,⁵ has clearly indicated that a heavy burden must be borne by the party claiming that a "voluntary, intelligent, and knowing" contractual waiver has occurred. In ruling that no contractual waiver had taken place in Fuentes upon appellant's execution of a printed form conditional sales contract, the Court, 407 U.S. at 95, 92 S.Ct. 1983, noted several factors which bear on the type of printed form contract signed by Baldemar Gonzalez in the case before us:

The purported waiver provision was a printed part of a form sales contract and a necessary condition of the sale. The appellees made no showing whatever that the appellants were actually aware or made aware of the significance of the fine print now relied upon as a waiver of constitutional rights. * * * Quoting from D. H. Overmyer Co., Inc. v. Frick Co., supra, the Court continued, "where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the waiver provision, other legal consequences may ensue i.e., no valid waiver will have occurred."

Precisely because, on this record, we are not satisfied that Baldemar Gonzalez was "actually aware or made aware of the significance of the fine print now relied on as a waiver of constitutional rights," we remand the case to the district court under the authority, and in the light, of the Supreme Court's decisions in Fuentes, Overmyer, and Swarb v. Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972), all decided after the district court rendered its January 3, 1972, Memorandum Opinion in this case.⁶

It has been argued that in both Fuentes, supra, and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), the seizure of property without notice or hearing was authorized not by contractual agreement but by statute, a fact which, it is urged, renders those cases inapplicable to the contractual situation before us. See Comment, Prejudgment Wage Garnishment: Notice and Hearing Requirements under Sniadach v. Family Finance Corp., 11 B.C.Ind. & Com.L.Rev. 462, 471-75 (1970). A close reading of Fuentes, however, discloses that, even though the primary thrust of the majority opinion was to strike down the constitutionally repugnant Pennsylvania and Florida prejudgment replevin statutes for their failure to provide for notice or hearing prior to property seizures, both Mr. Justice Stewart, writing for the majority, and Mr. Justice White, writing for the minority, addressed the issue before us, namely, purported waiver of a constitutional right by contract.

In Fuentes one of the appellants,⁷ Mrs. Fuentes, who spoke little or no English,⁸ had signed two conditional sales contracts for the purchase of a gas stove and stereophonic phonograph set. Under the contracts, the Seller retained title to the items, but Mrs. Fuentes was entitled to possession "unless and until she should default on her installment payments," 407 U.S. at 70, 92 S.Ct. at 1989, at which time, pursuant to the contracts, Seller, "at its option could take back the merchandise." Id. at 94, 92 S.Ct. at 2001. Mrs. Fuentes made her installment payments for more than a year. Then,...