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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION DALLAS COUNTY CONSTABLE BETH VILLAREAL, DALLAS COUNTY CONSTABLE BEN ADAMCIK, DALLAS COUNTY CONSTABLE ROY WILLIAMS, JR., JIM GILLIAN, JOHN DOES, AND JANE DOES v. DALLAS COUNTY, DALLAS COUNTY COMMISSIONERS COURT, CLAY JENKINS, JOHN WILEY PRICE MAURINE DICKEY, ELBA GARCIA, AND MIKE CANTRELL

Case No. 3:11-cv-2233-F

ORDER DENYING PRELIMINARY INJUNCTION BEFORE THE COURT is Plaintiffs verified Complaint and Application for Injunctive Relief and Memorandum of Law Supporting Application for Temporary Restraining Order and Preliminary Injunction (Doc. No. 2). On August 30, 2011, this Court issued a Temporary Restraining Order prohibiting Defendants from taking steps to enact a Court Order or any other fiat that would terminate the majority of the Dallas Constables staff and transfer core functions of the Dallas County Constables to the Dallas Sheriffs Department (Doc. No. 6). The Court renewed that Order on September 13, 2011 under Fed. R. Civ. P. 65(b) (Doc. No. 20). Based on the briefs submitted by the parties and all authorities cited therein, all affidavits, pleadings, and other matters of record, the Court is of the opinion that Plaintiffs Application for Injunctive Relief should be DENIED.1

This resolves Doc. No. 1

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I. Factual and Procedural Background This is an action for affirmative relief for violations of free speech and substantive due process under the First and Fourteenth Amendments of the U.S. Constitution; violations of 42 U.S.C. 1993 and 1988; free speech retaliation; and violations of chapter 554 of the Texas Government Code. PlaintiffsDallas County constables,2 deputy constables, and staffseek declaratory relief under 28 U.S.C. 2201 that the Dallas County Commissioners Court Order to be voted on August 30, 2011 would be null and void, of no effect, and unauthorized by law when approved. Plaintiffs also request injunctive and equitable relief to prevent current and future rights deprivations. Defendants are Dallas County, a governmental entity within the State of Texas; the Dallas County Commissioners Court, a governmental entity comprised of an elected county judge and elected county commissioners; and County Judge Clay Jenkins and County Commissioners John Wiley Price, Maurine Dickey, Elba Garcia, and Mike Cantrell, all sued in their official capacities. County Judge Jenkins and Commissioner Price are also sued in their individual capacities. Commissioners Garcia, Dickey, and Cantrell are sued in their official capacities only. While the factual allegations giving rise to the Complaint took place over a number of years, the instant dispute crystallized over the Commissioners Courts August 30, 2011 agenda. Agenda Item 17 called for a Dallas County court order transferring all civil process, civil writ, and Justice of the Peace warrant duties from the Constables to the Sheriff through the fiscal year 2012 budget. The Sheriff would have twenty-three additional staff members, the Constables would lose thirty-two staff members, and the John and Jane Does within Category C of the civil service code would be terminated. It is the Plaintiffs opinion that, in absence of a Temporary
2

A constable attends to each justice court and executes and returns as provided by law each process, warrant, and precept directed to the constable. Tex. Local Gov. Code 86.021. 2

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Restraining Order, the Commissioners Court would have enacted the Agenda Item 17 Order.3 There is fervent dispute as to whether the proposed employment termination would be a lawful reduction-in-force or an unlawful retaliatory discharge. On August 30, 2011, based on the limited information before it, the Court issued a Temporary Restraining Order to preserve the status quo and to prohibit Defendants from taking steps to enact a Court Order or any other fiat that would terminate the majority of the Dallas Constables staff and transfer core functions of the Dallas County Constables to the Dallas Sheriffs Department (Doc. No. 6). The Court also set a hearing for September 29, 2011 to consider preliminary injunctive relief. Id. In a separate Order, the Court permitted the parties to engage in limited discovery and set deadlines for the parties to submit written pleadings prior to the hearing (Doc. No. 9). On September 13, 2011, the Court renewed the Temporary Restraining Order under Fed. R. Civ. P. 65(b) (Doc. No. 20). A hearing on injunctive relief was called on September 29. II. Legal Standard A preliminary injunction is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries the burden of persuasion. Jones v. Bush, 122 F.Supp.2d 713, 718 (N.D. Tex. 2000) (Fitzwater, J.) (quoting White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989)), affd, 948 F.2d 1286 (5th Cir. 1991) (per curiam) (unpublished table decision)), affd, 244 F.3d 134 (5th Cir.2000) (per curiam) (unpublished table decision). The decision to grant a preliminary injunction is to be treated as the exception rather than the rule. Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir.
3

On August 26, 2011, the human resources director for Dallas County sent an e-mail to the Constables requesting their availability for a meeting next Wednesday or Thursday to discuss the transition that will take place when the Commissioners approve the Court Order next Tuesday, or August 30, 2011. 3

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1985) (stating that movant must clearly carr[y] the burden of persuasion). To obtain a preliminary injunction, Plaintiffs must establish (1) a substantial likelihood that it will prevail on the merits; (2) a substantial threat that it will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury to it outweighs the threatened harm the injunction may do to defendant; and (4) that granting the preliminary injunction will not disserve the public interest. See DSC Comms. v. DGI Techs, 81 F.3d 597, 600 (5th Cir. 1996); Jones, 122 F. Supp. 2d at 718. The Courts analysis beginsand endswith the first requirement. Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 768 (5th Cir. 2007). III. Analysis The Court must deny Plaintiffs request for injunctive relief because Plaintiffs are unable to establish a substantial likelihood that they will prevail on the merits and be able to secure a permanent injunction. Despite the probability that the Commissioners Court would have passed Agenda Item 17 as proposed, interference with the enactment of legislation is not with the province of the judiciary since a courts remedies are not available against void legislation . . . until its enforcement. City of Dallas v. Dallas Consolidated Street Rwy. Co., 105 Tex. 337, 343 (Tex. 1912). This rule remains in full force today. See, e.g., In re Spiritas Ranch Enterprises, L.L.P., 218 S.W.3d 887, 900 (Tex. App.Fort Worth 2007, no pet. h.) ([t]he ability of a court to enjoin the future enactment of ordinances . . . has therefore long been strictly circumscribed.); City of Houston v. Houston Gulf Coast Bldg. & Construction Trades Council, 697 S.W.2d 850, 851-53 (Tex. App.Houston [1st Dist.] 1985, writ denied) (prior judicial interference [with passage of an ordinance] is unauthorized.). Federal precedent likewise counsels against the injunctive relief Plaintiffs seek. In a case similar to the one here, the Fifth Circuit affirmed a district courts dismissal of plaintiffs claims

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when they sought to enjoin a legislative body from passing anticipated zoning ordinances. Chacon v. Granata, 515 F.2d 922 (5th Cir. 1975). The Chacon court emphasized that [a]ny injury plaintiffs might suffer . . . can be remedied when the City formally exercises that power [by passing the anticipated ordinance]. Id. at 925. Where the legislative body has not yet acted, we must presume that when it does act it will respect rights guaranteed by the Constitution. The contours of the ordinances anticipated by plaintiffs cannot be predicted. Id. The same is true herewhether Agenda Item 17 will pass and if so, what form it may take, is beyond the prescience of this Court. The role of the judiciary precludes interference by courts with legislative and executive functions which have not yet proceeded so far as to affect individual interests adversely. Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1, 72 (1961). Consequently, judicial deference to the prospective acts of legislative bodies must stay this Courts hand.4 IV. Conclusion Plaintiffs Application for Preliminary Injunction (Doc. No. 1) is DENIED. The Courts August 31 Temporary Restraining Order (Doc. No. 6) is DISSOLVED. Defendants are no longer restrained from taking any action on the Dallas County Commissioners Court Order to be voted on concerning the Dallas County Constables, Dallas County Deputy Constables, clerks and other employees of the offices of the Dallas County Constables. This Order shall not operate as a final determination of the merits of any issues raised by the parties and shall not prejudice the rights of any party to raise or argue the same. All matters presently pending before this Court are ABATED and all proceedings are
4

The Court need not address the three remaining prongs of the test for granting preliminary injunctions because the absence of likelihood of success on the merits is sufficient to make the district courts grant of a preliminary injunction improvident as a matter of law. Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 203 (5th Cir. 2003). 5

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STAYED pending further action by the Dallas County Commissioners Court. Attached to this Order is the prepared statement that the Court read at the beginning of the hearing scheduled for September 29. IT IS SO ORDERED. SIGNED this 29th day of September, 2011.

_______________________ Royal Furgeson Senior United States District Judge

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STATEMENT DELIVERED BY THE COURT AT THE SEPTEMBER 29 HEARING Welcome, it is good to be with you this morning. I can see that everyone is prepared for this hearing. I have been preparing, too, although my preparation was delayed because of a long jury trial which ended Tuesday. Finally, yesterday evening, I was able to complete my work on this case. Remember, if you will, that Plaintiffs filed this lawsuit at the last minute, asking me to issue a temporary restraining order to stop the Dallas County Commissioners Court from voting on the constable matter. Plaintiffs allegations in this lawsuit are serious ones, so I granted emergency relief to preserve the status quo until I had adequate time to review the issues and to give all sides time to brief them. I have received excellent briefing from all parties. It is obvious from the set up in this courtroom that both parties are here to present their case and to present evidence regarding Plaintiffs request for a preliminary injunction. However, on the injunction question, it is clear from my research that the evidence will not control. Rather, the law will control. And there is no set of facts in this instance that will allow this Court to enjoin the future enactment of agenda items before the Commissioners Court. The Fifth Circuit has noted that any injury a plaintiff might suffer in such a situation as this can only be remedied after the legislative body, in this instance, the Commissioners Court, has indeed acted. While Plaintiffs are convinced that the Dallas Commissioners Court will vote adversely to their interests, the law is such that the Commissioners Court must be given the right to vote first, without this Courts interference. If the vote adversely affects the legal and constitutional rights of the Plaintiffs, then they can certainly seek redress before this Court. Therefore, without further briefing or argument, which would certainly be to no avail, I am dissolving the TRO and denying the request for a preliminary injunction. I will issue my written order later today or in the morning. I am hopeful that the last several weeks has given the parties an opportunity to reflect further on the important issues at stake in the constable matter. Fortunately, both sides have outstanding lawyers, who are fully capable of assessing these issues in order to give their respective clients sound and thoughtful advice. While the Commissioners Court matter remains pending, I will abate this case and stay all further proceedings, including any further briefing on the motions to dismiss. If the Commissioners Court votes in such a way that the Plaintiffs believe is adverse to their interests, then they can petition me to lift the stay and to proceed with the lawsuit. Thank you for time here this morning. The Court is adjourned.