Hernandez v. Pulido

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 3, 2001
• Docket: 00-41232
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41232 Summary Calendar

RAUL HERNANDEZ,

Plaintiff-Appellant,

versus

JOSE ELOY PULIDO; HIDALGO COUNTY,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-99-CV-66 -------------------- August 2, 2001

Before DUHÉ, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:1

Raul Hernandez appeals the granting of summary judgment

dismissing his claims under the First Amendment of the U.S.

Constitution, 42 U.S.C. § 1983, and Texas defamation and wrongful

discharge law against Jose Eloy Pulido, County Judge of Hidalgo

County, and Hidalgo County. We affirm.

Hernandez’s First Amendment claim is premised on his argument

that he was fired from his position as Hidalgo County

Superintendent of Buildings and Grounds impermissibly for not

supporting politically the newly-elected county judge, Pulido.

1 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. However, the summary judgment evidence showed that Hernandez’s job

was a policy-making one, and, therefore, discharge on the basis of

political affiliation was constitutionally permissible. See

Stegmaier v. Trammell, 597 F.2d 1027, 1035 (5th Cir. 1979). Even

if Hernandez’s discharge for political affiliation reasons was not

constitutionally permissible, both Hidalgo County and Pulido were

immune from suit on this claim. See Monell v. Department of Social

Servs. of New York, 436 U.S. 658, 694 (1978); Sorenson v. Ferrie,

134 F.3d 325, 330 (5th Cir. 1998).

Pulido and Hidalgo County also are immune from Hernandez’s

suit for defamation. Defamation is an intentional tort, for which

the Texas Tort Claims Act does not waive immunity. TEX. CIV. PRAC.

& REM. CODE § 101.057(2) (Vernon 2001); City of Hempstead v. Kmiec,

902 S.W.2d 118, 122 (Tex. App. 1995). To the extent that Pulido

was sued in his individual capacity, he also is immune. TEX. CIV.

PRAC. & REM. CODE § 101.106 (Vernon 2001); Dallas County Mental

Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343-44

(Tex. 1998).

Hernandez’s wrongful discharge claim under Texas state law

also appropriately was dismissed on summary judgment. Hidalgo

County, not Pulido, was Hernandez’s employer, and Hidalgo County is

sovereignly immune from suit for wrongfully terminating an at-will

employee, even one allegedly terminated for refusing to engage in

illegal acts. University of Texas Medical Branch at Galveston v.

Hohman, 6 S.W.3d 767, 777 (Tex. App. 2000).

2 Hernandez’s claim that Pulido and Hidalgo County violated the

Texas Whistleblower Act also properly was dismissed on summary

judgment. That act provides relief only against the government

entity, not Pulido. TEX. GOV’T CODE § 554.0035. Hernandez’s claim

against Hidalgo County fails because Hernandez did not demonstrate

that he made a whistleblowing report as required by the act. See

TEX. GOV’T CODE § 554.002 (Vernon 2001). The summary judgment of the

district court dismissing all of Hernandez’s claims is AFFIRMED.