Cox v. Nueces County, Texas

Filing 75

ORDER re 61 . Defendant Nueces County shall supplement its Motion to Dismiss 61 (Internal Use Only) on or before 9/20/2013. Plaintiff Cox shall have until Friday, 9/27/2013 to file a supplemental response(Signed by Judge Nelva Gonzales Ramos) Parties notified

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ELMER COX,

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§ CIVIL ACTION NO. 2:12-CV-339
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Plaintiff,
VS.
NUECES COUNTY, TEXAS, et al,
Defendants.

ORDER
Pending is Defendant Nueces County’s Motion to Dismiss Plaintiff’s Fifth
Amended Complaint (D.E. 61). The Court has reviewed the motion and response and
believes additional briefing is necessary.
Both Plaintiff and Defendant Nueces County have cited Brady v. Fort Bend
County, 145 F.3d 691 (5th Cir. 1998), cert. denied, 525 U.S. 1105 (1999). In Brady, the
Fifth Circuit noted that “the Texas legislature has vested sheriffs with such discretion [to
hire and fire employees], and the sheriff’s exercise of that discretion is unreviewable by
any other official or governmental body in the county. Texas sheriffs therefore exercise
final policymaking authority with respect to the determination of how to fill employment
positions in the county sheriff’s department.” Id. at 700. As the final policy maker, it
would appear that Defendant Nueces County may be held responsible for the actionable
conduct of the sheriff.
Brady, however, cannot be read to stand for such a broad proposition because the
Court also found that the Texas legislature has given “counties the option of creating a
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civil service system for sheriff’s departments that at least limits to some degree the
sheriff’s ability to engage in unconstitutional hiring practices.” Id. at 703. Whether such
limitations exist in the present case may affect the Court’s decision on the present
motion. Neither Defendant Nueces County nor Plaintiff Cox has addressed whether
Nueces County has a civil service system that limits the sheriff’s employment decisions.
This information is important in the analysis as to whether Plaintiff Cox has stated a
claim against Nueces County upon which relief can be granted.
Therefore, Defendant Nueces County is granted leave to supplement its motion to
dismiss and address whether Nueces County has a civil service system that provides
oversight to the sheriff’s employment decisions. Defendant Nueces County should also
address how any such civil service oversight affects the merits of its motion to dismiss.
Defendant Nueces County shall supplement its Motion to Dismiss on or before
Friday, September 20, 2013. Plaintiff Cox shall have until Friday, September 27,
2013 to file a supplemental response.
ORDERED this 13th day of September, 2013.
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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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