Stewart v. TDCJ-ID

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 20, 1998
• Docket: 19-30561
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40796

Summary Calendar

ROBERT LEE STEWART, Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; WAYNE SCOTT; SHARON KEILIN, Defendants-Appellees.

Appeal from the United States District Court For the Eastern District of Texas (9:96-CV-285)

April 15, 1998

Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Robert Lee Stewart is a former employee of the Texas

Department of Criminal Justice - Institutional Division (TDCJ-ID).

While employed at the Eastham Unit, Stewart began a relationship

with the warden’s secretary. Although estranged from his wife at

the time, he was still legally married. Stewart was transferred by

the TDCJ-ID, apparently because his relationship had “violated the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. sanctity of the warden’s office.” Stewart’s transfer occurred

without notice or hearing. Stewart alleges that the transfer

caused him personal hardship, and, after being assigned night duty

at his new unit, Stewart resigned citing health reasons. Stewart

later married the warden’s secretary.

Stewart sued under 42 U.S.C. § 1983, claiming that his rights

to privacy/association and due process were violated by the

transfer. The district court granted the defendants judgment on

the pleadings pursuant to Fed. R. Civ. P. 12(c), reasoning that

Stewart had failed to demonstrate the violation of any clearly

established constitutional rights. We agree.

Stewart first claims that his transfer, allegedly in

retaliation for his relationship with the warden’s secretary,

violated his rights to association and privacy. Yet even if

Stewart was estranged from his wife at the time of the relationship

with the secretary, he was still legally married. Stewart has been

unable to produce to us any authority supporting a constitutional

right to date others while still married. Indeed, the existing

authority would indicated otherwise. See City of Sherman v. Henry,

928 S.W.2d 464, 469-72 (Tex. 1996) (summarizing the law).

Stewart’s attempt to recharacterize this right as one of

association is unavailing, for he has produced no authority to

suggest that the Constitution protects the rights of those who wish

to associate intimately with others in extramarital affairs. Even

2 if such a right might exist, it was not clearly established at the

time of Stewart’s transfer.

Second, Stewart asserts that his transfer without notice or

hearing violated his due process rights. He points to the policies

and procedures of the TDCJ-ID and suggests that they constitute an

agreement to treat him fairly in his employment. Yet the general

rule in Texas is that employment contracts are “at-will,” and

employees may not attempt to incorporate into their contracts

principles annunciated unilaterally by an employer in an employment

manual or the like. See Aiello v. United Air Lines, Inc., 818 F.2d

1196, 1198 (5th Cir. 1987). Because Stewart failed to demonstrate

that his transfer violated any express term of his employment

contract, his due process claim likewise fails.

AFFIRMED.