Bernice Garza v. Omar Escobar, Jr.

Case: 19-40664 Document: 00515544304 Page: 1 Date Filed: 08/28/2020

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

FILED
August 28, 2020
No. 19-40664 Lyle W. Cayce
Clerk

Bernice Garza,

Plaintiff—Appellant,

versus

Omar Escobar, Jr., in his official capacity as District Attorney and in his
personal capacity; Starr County, Texas,

Defendants—Appellees.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:18-CV-249

Before Southwick, Costa, and Duncan, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
Bernice Garza was the Crime Victims Unit Coordinator for the 229th
Judicial District Attorney’s Office, which covers Duval, Jim Hogg, and Starr
Counties in south Texas. She was fired because of political disagreements
with her boss, Omar Escobar, Jr., the District Attorney. The district court
dismissed her First Amendment claim, concluding Garza could be subjected
to patronage dismissal without violating the Constitution. We affirm.
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I.
Because the case was dismissed under Federal Rule of Civil Procedure
12(c), we accept all well-pled facts in Garza’s complaint as true. See Guidry
v. Am. Public Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007).
A.
In happier times, Garza and Escobar “were friends and were aligned
with respect to local politics.” Garza and her sister, Leticia Garza Galvan
(“Galvan”), helped Escobar with his successful 2012 campaign for District
Attorney. In 2015, Escobar hired Garza to serve as the Coordinator of the
Crime Victims Unit (“CVU”) for the DA’s office. Her job was to help crime
victims, for instance by securing them counseling services and preparing
them to testify at trial. As CVU Coordinator, Garza led the department,
supervising five employees, onboarding interns, and managing the office’s
grant process. Garza received two raises during her tenure, both approved by
Escobar. While serving as CVU Coordinator, she worked on Escobar’s 2016
reelection campaign and was “placed in a position of confidence between
Escobar and the other persons working for his campaign.” Following his
reelection, Escobar continued to involve Garza in his political plans,
discussing with her which candidates to support for local offices.
Soon after, however, Garza’s relationship with Escobar “began to
deteriorate” because “Escobar objected to the political views and activities
of [Garza] and her family.” Specifically, Escobar did not want Garza’s sister,
Galvan, to run for office because it would disrupt his own political plans.
Escobar badgered Garza about this daily, to the point that she had to take
medication to quell her distress. In April 2017, after Garza told a co-worker
she wanted to quit, Escobar demanded to meet with her. At the meeting,
“Escobar continued criticizing [Galvan] and her decisions, and tried to
convince [Garza] that she should be the one running for office rather than her

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sister.” Garza told Escobar she wanted to do her job without politics
intruding.
Around this time, a separate dispute developed between Escobar and
Galvan over replacing a local school’s athletic director. Galvan, a member of
the school district’s Board of Trustees, voted in a way that rankled Escobar
and “[t]his was apparently too much for . . . Escobar to bear.” Escobar
warned Galvan that, if she ran for office, she would lose because he would not
help her. He also reminded her that he employed her sister, which Galvan
viewed as a threat to retaliate against Garza.
Things continued south. In August 2017, Escobar blamed Garza for an
assistant DA’s decision not to run for county judge. Escobar “did not speak
to [Garza] for several days,” blaming her for putting his political plans “in
tatters.” In September 2017, Escobar ordered Garza to “barge into” a
meeting between the County Auditor and two assistant DAs, but she refused.
She later denied knowing anything about the meeting, further angering
Escobar. Garza reminded Escobar that she would not discuss politics, but he
warned her that any work on her sister’s campaign had to be done outside the
office. After this, Escobar “ceased communication” with Garza and would
talk only to Garza’s subordinates. Escobar ordered her subordinates to help
him prepare for trial, work Garza used to do herself. Nonetheless, Garza
“would still help them prepare, but without Escobar’s knowledge.”
In October 2017, Galvan kicked off her campaign for county judge.
“Escobar suddenly decided to throw all in with [Galvan’s opponent’s]
slate,” and soon “began sending cryptic messages intended to intimidate
[Garza] from assisting her sister’s campaign.” In December 2017, Escobar
sent Garza a message referring to a new Texas Election Code amendment
that increased penalties for election offenses. “Escobar vaguely warned that
there would be arrests made.” “At this point, [Garza] . . . was working mostly

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half-days” and “[t]he atmosphere was tense and awkward around the office
with no communication with Escobar.” Garza then requested a two-and-a-
half month leave of absence, without pay, which Escobar approved. During
her time away, Garza worked on her sister’s campaign.
Garza returned to the office March 19, 2018, and immediately asked
to meet with Escobar. Escobar’s response was to order an investigator to bar
Garza from the office. Minutes later, a court officer escorted Garza off the
premises. The human relations department told Garza she had been
“suspended without pay pending the outcome of a current election fraud
investigation in Starr County.” Garza later learned her employment was
terminated on April 4, 2018.
B.
Garza sued both Escobar and Starr County (collectively,
“Defendants”) in federal district court under 42 U.S.C. § 1983, alleging
political retaliation in violation of the First Amendment. Defendants moved
for judgment on the pleadings, arguing that Garza’s government position was
subject to “patronage dismissal” and therefore not entitled to First
Amendment protection. Escobar also asserted qualified immunity.
The district court, in a careful and thorough opinion, granted
Defendants judgment on the pleadings, holding Garza was not entitled to
First Amendment protection. Specifically, the court concluded that political
loyalty was an appropriate requirement for Garza’s position as CVU
Coordinator and that she was therefore subject to patronage dismissal. See,
e.g., Wiggins v. Lowndes Cty., Miss., 363 F.3d 387, 390 (5th Cir. 2004)
(patronage dismissal may survive First Amendment challenge when
“political allegiance ‘is an appropriate requirement for the effective
performance of the public office involved’”) (quoting Branti v. Finkel, 445
U.S. 507, 518 (1980)). In the alternative, the court ruled that Escobar would

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be shielded by qualified immunity. See, e.g., Gentry v. Lowndes Cty., Miss., 337
F.3d 481, 487 (5th Cir. 2003) (qualified immunity may be warranted in
“political patronage” cases where controlling authority does not settle
propriety of dismissal in “sufficiently analogous” situations) (quoting
Gunaca v. Texas, 65 F.3d 467, 475 (5th Cir. 1995)). Finally, the court
dismissed Garza’s claim against Starr County given the lack of an underlying
constitutional violation, and also because Garza identified no official county
policy or policymaker as the moving force behind any alleged violation. See,
e.g., Delano-Pyle v. Victoria Cty., Tex., 302 F.3d 567, 574 (5th Cir. 2002)
(discussing prerequisites for municipal liability under § 1983); see also Monell
v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978) (same).
Garza timely appealed. 1
II.
We review dismissal under Rule 12(c) de novo. Machete Prods., LLC v.
Page, 809 F.3d 281, 287 (5th Cir. 2015) (citing Bryant v. Military Dep’t of
Miss., 597 F.3d 678, 684 (5th Cir. 2010)). “A motion brought pursuant to
[Rule] 12(c) is designed to dispose of cases where the material facts are not
in dispute and a judgment on the merits can be rendered by looking to the
substance of the pleadings and any judicially noticed facts.” Great Plains Tr.
Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.
2002) (quoting Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76

1
Defendants contest our appellate jurisdiction because, they say, Garza’s
Notice of Appeal (“NOA”) was untimely. A motions panel of this court has rejected
that argument once, and we reject it again. Garza timely filed a NOA following denial
of her Rule 59(e) motion. See Fed. R. App. P. 4(a)(4)(A); see also United States v. One
1988 Dodge Pickup, 959 F.2d 37, 40 (5th Cir. 1992) (“Any motion that draws into
question the correctness of the judgment is functionally a motion under Rule 59(e).”
(cleaned up)).

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(5th Cir. 1990)); see also 5A WRIGHT & MILLER, FED. PRAC. AND PROC.
§ 1367, at 509–10 (1990). “The standard for dismissal under Rule 12(c) is the
same as that under Rule 12(b)(6).” Hale v. Metrex Research Corp., 963 F.3d
424, 427 (5th Cir. 2020). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Id. (quoting Edionwe v. Bailey, 860 F.3d 287, 291
(5th Cir. 2017)). “[B]ut we are not bound to accept as true a legal conclusion
couched as a factual allegation.” Johnson v. Johnson, 385 F.3d 503, 529 (5th
Cir. 2004) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
III.
As a threshold matter, Garza contends the district court erred in
disposing of the case on a Rule 12(c) motion. She claims our decision in
Burnside v. Kaelin, 773 F.3d 624 (5th Cir. 2014), requires denying a Rule 12(c)
motion when the claim requires analysis under Pickering v. Board of Education,
391 U.S. 563 (1968). Pickering asks courts, when evaluating First Amendment
retaliation claims, to balance “the interests of the [employee], as a citizen, in
commenting upon matters of public concern and the interest of the State, as
an employer, in promoting the efficiency of the public services it performs
through its employees.” Connick v. Myers, 461 U.S. 138, 142 (1983)
(alteration in original) (quoting Pickering, 391 U.S. at 568). We disagree.
In Burnside—which also involved a First Amendment retaliation
claim—we said that “[i]n stating a prima facie case at the motion-to-dismiss
stage of a case, there is a rebuttable presumption that no balancing is required
to state a claim.” 773 F.3d at 628. But we immediately explained that
statement: “[t]he rebuttable presumption applies because reasonable
inferences drawn from a complaint, obviously drafted by the aggrieved
employee, will generally lead to a plausible conclusion that the employee’s
interest in commenting on matters of public concern outweighs the

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employer’s interest in workplace efficiency.” Id. (emphasis added). We then
determined that the complaint in that case contained nothing indicating that
the plaintiff’s interest in commenting on an election was outweighed by the
employer’s interest in an efficient workplace. Id.
Burnside does not preclude disposing of this case at the Rule 12(c)
stage. To begin with, unlike Burnside, this case does not involve a “pure”
Pickering analysis. As explained below, see infra IV(A)(2)–(3), because Garza
functioned as a policymaker, her dismissal was allowed as long as the
pleadings show her political activities “in some way adversely affect[ed]” the
functioning of the DA’s office. See Vojvodich v. Lopez, 48 F.3d 879, 887 (5th
Cir. 1995). Thus, there is more to the inquiry here than a pure weighing of
interests as was the case in Burnside, so Burnside is not on point.
And in any event, Burnside says only that there is a rebuttable
presumption at the motion-to-dismiss stage that no balancing is needed to
state a First Amendment retaliation claim. But, as Burnside explains, that
presumption may be rebutted when “reasonable inferences drawn from a
complaint” do not plausibly show that the employee’s interests outweigh the
employer’s. 773 F.3d at 628. In such a case, Pickering balancing can be
performed at the motion-to-dismiss stage. That makes sense because
“[a]pplication of the Pickering balancing test is a question of law,” Bickel v.
Burkhart, 632 F.2d 1251, 1256 (5th Cir. 1980), and it would be “illogical to
say that something is a question of law, and that it is reviewed de novo, yet
that it can never be decided on the pleadings.” Weisbuch v. Cty. of Los Angeles,

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119 F.3d 778, 783 n.1 (9th Cir. 1997). For that reason, our court has previously
applied Pickering balancing at the pleading stage, as have other circuits. 2
To put things more bluntly: if a plaintiff pleads her way into Pickering
balancing, Burnside does not require courts to ignore the very facts she pled—
indeed, at this stage, the court must accept them as true. See Hale, 963 F.3d at
427. Here, the district court concluded that, based on the detail provided by
Garza’s allegations, balancing the parties’ interests was not precluded at the
Rule 12(c) stage. We agree, and thus proceed to the merits.
IV.
Garza argues that the district court erred in dismissing her case based
on the “patronage dismissal exception” to First Amendment retaliation
claims. She also argues that the court erred in dismissing her municipal
liability claims against Starr County. We hold that Garza’s position as CVU
Coordinator is one for which “party affiliation is an appropriate requirement
for effective performance,” Branti, 445 U.S. at 518, and the First
Amendment thus did not shield her from dismissal. Our second holding flows
from the first: because Garza has not plausibly alleged a constitutional claim,
her municipal liability claim was also properly dismissed. We therefore affirm
the district court’s judgment.
A.
1.
We assume, without deciding, that Garza plausibly pled a prima facie
claim of First Amendment retaliation. See Maldonado v. Rodriguez, 932 F.3d

2
See Phillips v. City of Dallas, 781 F.3d 772 (5th Cir. 2015); see also, e.g., Jackler
v. Byrne, 658 F.3d 225 (2d Cir. 2011) (Pickering analysis done on a Rule 12(c) motion);
Jordan v. Carter, 428 F.3d 67 (1st Cir. 2005) (same); Edwards v. City of Goldsboro, 178
F.3d 231 (4th Cir. 1999) (same).

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388, 391 (5th Cir. 2019) (“A First Amendment political retaliation claim
requires proof that a plaintif (a) suffered an adverse employement action
(b) because of (c) his ‘speech or activity related to a matter of public
concern.’”) (quoting Aucoin v. Haney, 306 F.3d 268, 274 (5th Cir. 2002)).
The dispute here is whether Garza’s former position nevertheless falls within
the patronage dismissal exception to the First Amendment’s protection.
“[B]ecause ‘political belief and association constitute the core of
those activities protected by the First Amendment,’ the practice of patronage
dismissals ‘clearly infringes First Amendment interests.’” Aucoin, 306 F.3d
at 272 (quoting Elrod v. Burns, 427 U.S. 347, 356, 360 (1976)). But if “an
employee’s private political beliefs would interfere with the discharge of his
public duties, his First Amendment rights may be required to yield to the
State’s vital interest in maintaining governmental effectiveness and
efficiency.” Branti, 445 U.S. at 517.
To find shelter under the First Amendment, Garza must show that
the speech or activity at issue—here, campaigning for her sister—implicated
an issue of public concern. Vojvodich, 48 F.3d at 884. Plainly it did. Id. at 885;
Aucoin, 306 F.3d at 274. Defendants “then must establish that [the
government’s] interest in promoting the efficiency of the services provided
by its employees outweighs [Garza]’s interest in engaging in the protected
activity.” Vojvodich, 48 F.3d at 885; see also Maldonado, 932 F.3d at 391.
“This analysis in reality is a sliding scale or spectrum upon which ‘public
concern’ is weighed against disruption.” Vojvodich, 48 F.3d at 885; see also
Maldonado, 932 F.3d at 392.
“When nonpolicymaking, nonconfidential employees are discharged
solely because of their private political views, little, if any weighing of an
employee’s First Amendment rights against an employer’s right to loyal and
efficient service is necessary, and the employee’s rights will usually prevail.”

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Id. at 392 (quoting Gentry, 337 F.3d at 485–86). On the other end of the
spectrum, though, “are cases where employees’ exercise of First
Amendment privileges clearly over-balanced [their] usefulness.” Id.
(alteration in original) (quoting Gentry, 337 F.3d at 485–86). When “public
employees . . . occupy policymaker or confidential positions . . . the
government’s interests more easily outweigh the employee’s.” Brady v. Fort
Bend Cty., 145 F.3d 691, 707–08 (5th Cir. 1998).
Policymakers are “public employees whose responsibilities require
more than simple ministerial competence, whose decisions create or
implement policy, and whose discretion in performing duties or in selecting
duties to perform is not severely limited by statute, regulation, or policy
determinations made by supervisors.” Aucoin, 306 F.3d at 273 (quoting
Stegmaier v. Trammell, 597 F.2d 1027, 1035 (5th Cir. 1979)). Employees may
be policymakers if they “control[] or exercise[] a role in a decision making
process as to the goals and general operating procedures of (an) office.” Id.
(quoting Stegmaier, 597 F.2d at 1035). Whether an employee’s
“responsibilities . . . are not well defined or are of broad scope” is also
illuminating. Elrod, 427 U.S. at 367–68.
A government employee may be “confidential” “if he or she stands
in a confidential relationship to the policymaking process, e.g., as an advisor
to a policymaker, or if he or she has access to confidential documents or other
materials that embody policymaking deliberations and determinations, e.g.,
as a private secretary to a policymaker.” Maldonado, 932 F.3d at 393 (quoting
Wiggins, 363 F.3d at 391).
Concluding an employee occupies a confidential or policymaking role,
however, does not completely answer whether the employee can properly be
subject to patronage dismissal. See Vojvodich, 48 F.3d at 884. While the labels
“policymaker” and “confidential” are helpful, “the [ultimate] question is

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whether the hiring authority can demonstrate that party affiliation is an
appropriate requirement for effective performance of the public office
involved.” Branti, 445 U.S. at 518. We make that determination based on the
specific facts of each case. See Maldonado, 932 F.3d at 392 (“The balancing
test is case-specific.”).
2.
Our first task is to determine whether Garza functioned as a
confidential employee or a policymaker when she worked as the CVU
Coordinator. We conclude that she did. Our court has not previously
examined this specific position, but our decisions guide our inquiry.
In McBee v. Jim Hogg County, we held that a sheriff’s law enforcement
staff—comprised of six deputies and four dispatchers—were subject to
patronage dismissal. 703 F.2d 834, 841 (5th Cir. 1983). This was so, we
reasoned, because they were “individuals . . . responsible for ensuring that
the sheriff’s policies were properly implemented,” they “were
representatives of [the] sheriff to the public,” they “were involved in
virtually every law enforcement activity, usually acting alone without
supervision,” and they performed work “closely on a personal and
confidential basis.” Id. at 842. We found “it difficult to imagine how such an
office could have effectively carried out its vitally important duties in the
public trust when the sheriff did not have absolute confidence in his small
staff.” Id.
In Aucoin v. Haney, we joined our sister circuits and held that “an
assistant district attorney falls within the Elrod-Branti policymaker
exception.” 306 F.3d at 276. We noted the “broad discretionary powers”
vested in district attorneys under Louisiana law and that assistant district
attorneys “may perform the duties of officials under whom they serve”—
i.e., the district attorney. Id. at 275. Further, the plaintiff oversaw and “had

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great discretion in handling the misdemeanor docket” and performed his
duties with little direct supervision from the district attorney. Id. at 276.
Given the breadth and independence of the plaintiff’s duties, we concluded
he functioned as a policymaker. Id.
In Maldonado v. Rodriguez, we held that the commander and assistant
commander of a drug trafficking area task force, as well as department
investigators, were likely not protected from patronage dismissal. 932 F.3d at
392. We noted that even though those positions were “perhaps not as
intimately connected with the DA’s duties as assistant prosecutors,” they
“held more responsible and discretionary positions than ordinary
investigators.” Id. at 395. We observed that our “case law strongly suggests
that certain employees in the District Attorney’s office, in addition to
assistant DAs, must be terminable for their political activity,” when they
“have significant discretion or input into deciding what kinds of crimes to
pursue with limited resources, which cases to pursue, how to conduct
investigations, executions of warrants and arrests, and whether to
recommend lenient or severe punishments.” Id. at 394. We also explained
that “the prosecutorial function of the [DA] is laden with ideological content
which is the subject of public debate and electoral choices,” that “the office
must be sensitive to [the elected DA]’s policy demands as represented to the
voters[,] . . . [a]nd the DA is ultimately responsible for every interaction
between his office and the public.” Id. (cleaned up).
In contrast, we have also examined positions that were not
confidential or policymaking. In Wiggins v. Lowndes County, for example, we
held that a county road foreman was neither. 363 F.3d at 392. We observed
that the plaintiff merely implemented projects determined by superiors;
assigned work to the road crew and supervised work in the field; inspected
equipment; maintained records; inspected roads and bridges; and performed
other assigned duties. Id. at 391. Likewise, he had no access to confidential

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documents, could not create personal liability for his superiors, and had a
measure of protection from the Board of Supervisors. Id. These factors
demonstrated that the employee did not function as a policymaker or
confidential employee. Id.
Applying our precedents thus leads us to conclude that Garza
functioned as a policymaker and confidential employee in her work as CVU
Coordinator. This position is a creature of Texas law. See TEX. CODE CRIM.
PROC. art. 56.04(a). 3 The coordinator’s duty is to ensure that victims of
crimes are “afforded the rights granted victims, guardians, and relatives” by
Texas law. 4 Id. (b). In discharging that responsibility, the coordinator is to
“work closely with appropriate law enforcement agencies, prosecuting
attorneys, the Board of Pardons and Paroles, and the judiciary.” Id.
Garza’s allegations underscore the breadth of her responsibilities. As
CVU Coordinator, she was “the head of that department” and supervised
five other employees. As department head, she ultimately “shoulder[ed] the
important responsibility of communicating with and assisting crime
victims.” This work included, “[a]mong other things, . . . assist[ing] these
vulnerable victims by securing counseling services and by preparing them for
trial.” Garza took the lead in these important roles. In addition to those
responsibilities, Garza was “the grant manager for the 229th Judicial District
Attorney’s Office,” and she “prepar[ed] and manag[ed] grant requests.”
These allegations, together with her statutory duties, establish that
Garza functioned as a policymaker and confidential employee as CVU

3
“The district attorney, criminal district attorney, or county attorney who
prosecutes criminal cases shall designate a person to serve as victim assistance
coordinator in that jurisdiction.”
4
Texas law dedicates an entire chapter of the Code of Criminal Procedure to
detailing the rights of crime victims. See TEX. CODE CRIM. PROC. art. 56.01 et seq.

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Coordinator. First, her responsibilities required much more than “simple
ministerial competence,” see Aucoin, 306 F.3d at 273, and were broad in
scope, see Elrod, 427 U.S. at 367; Aucoin, 306 F.3d at 276. This makes it
“more likely” that she functioned as a policymaker. See Elrod, 427 U.S. at
367–68. Although Garza tries on appeal to undersell the importance of her
former position, her allegations demonstrate that she enjoyed substantial
discretion in discharging her statutory duties. This supports a finding that
she was a policymaker. See Aucoin, 306 F.3d at 273.
Second, Garza represented the DA’s office to crime victims. State law
and Garza’s own allegations demonstrate that she took the lead in ensuring
that victims and their relatives enjoyed all the rights to which they are
entitled. See TEX. CODE CRIM. PROC. art. 56.04(b). Garza was “responsible
for ensuring that the [DA]’s policies were properly implemented” regarding
the office’s interaction with crime victims. See McBee, 703 F.2d at 842. The
importance of her duties is underscored by the allegation that, after the rift
developed between Garza and Escobar, “the proper preparation of crime
victims to testify at trial” was not executed as well as it should have been.
Third, Garza also represented the DA’s office in interactions with
other members of the law enforcement community to secure victims’ rights.
See TEX. CODE CRIM. PROC. art. 56.04(b). In her work with “law
enforcement agencies, prosecuting attorneys, the Board of Pardons and
Paroles, and the judiciary,” Garza was the public face of the DA’s office and
responsible for implementing Escobar’s policy choices in those interactions.
Escobar was thus entitled to expect, “without question, undivided loyalty.”
Stegmaier, 597 F.2d at 1040.
Fourth, Garza’s job responsibilities required her to work closely with
government attorneys and handle sensitive, confidential information. Garza
explained that her duties included preparing “vulnerable victims” for trial

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and “securing counseling services” for them. She was also required to ensure
that victims received the rights owed them under state law. See, e.g., TEX.
CODE CRIM. PROC. art. 56.02. In discharging these responsibilities, Garza
would have handled sensitive information from victims and their families,
and would have been required to maintain confidentiality in her work with
the office’s attorneys. That close work with government attorneys supports
the conclusion that she functioned as a confidential employee. See Aucoin,
306 F.3d at 275.
Finally, Garza’s other responsibilities also illustrate her policymaking
role. She was the office grant manager. She supervised several other
employees. She was in charge of accepting interns. She had input regarding
Escobar’s personnel decisions. These are responsibilities that we, as well as
other courts, view as supporting the conclusion that an employee functioned
as a policymaker. See Gentry, 337 F.3d at 488 (budgetary work supports
finding of policymaker); see also Peterson v. Dean, 777 F.3d 334, 347 (6th Cir.
2015) (“[B]udgetary decisions are among the most significant, and the most
political, actions which government officials take.”); Hobler v. Brueher, 325
F.3d 1145, 1147 (9th Cir. 2003) (secretary who advised prosecutor regarding
hiring decisions was confidential).
We conclude that Garza’s allegations, taken as true, together with the
statutory description of her position, show she functioned as a policymaker
and a confidential employee in her role as CVU Coordinator.
3.
The conclusion that Garza served a confidential and policymaking role
helps, but does not end, our analysis. As explained, the ultimate inquiry in
patronage dismissal cases is whether “party affiliation is an appropriate
requirement for the effective performance of the public office involved.”
Branti, 445 U.S. at 518. To answer that question, some of our cases also ask

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whether “the employee’s activities in some way adversely affect[ed] the
government’s ability to provide services.” Vojvodich, 48 F.3d at 887. We
conclude that, on the facts alleged, Garza’s activities could have adversely
affected—and did adversely affect—the DA’s ability to serve the public and
that political affiliation is thus an appropriate requirement for the position.
In conducting this inquiry, a lack of evidence that actual disruption
occurred is not dispositive because we do not require employers to wait until
their office is disrupted before taking action. See Connick, 461 U.S. at 152.
Rather, where close working relationships are involved, courts accord “a
wide degree of deference to the employer’s judgment.” Id. Close working
relationships are crucial in public attorneys’ offices. See id. at 151–52; see also
Lumpkin v. Aransas Cty., 712 F. App’x 350, 359 (5th Cir. 2017).
With those principles in mind, we conclude that Garza’s political
affiliation and actions disrupted the work of the DA’s office. After Garza’s
political actions, Escobar was unable to place absolute confidence in her
performance of her vital statutory duties. As discussed, Garza oversaw the
office’s work with victims and their families. See TEX. CODE CRIM. PROC.
art. 56.04(b). She was to “work closely with appropriate law enforcement
agencies, prosecuting attorneys, . . . and the judiciary.” Id. In performing
those duties, Garza was representing Escobar, the elected DA. He was thus
entitled to her loyalty and needed confidence in her representation. See
Aucoin, 306 F.3d at 276; see also Hobler, 325 F.3d at 1152 (prosecutor entitled
to loyal secretaries who would carry out his policies). But the rift between
them ruptured this trust. That breakdown would have impeded the DA’s
provision of services to the public. “[I]t [is] difficult to imagine how [the
DA’s] office could have effectively carried out its vitally important duties [to
crime victims] when the [DA] did not have absolute confidence” in his CVU
Coordinator. See McBee, 703 F.2d at 842. Further, Garza was tasked with
“work[ing] closely” with, among other groups, “the judiciary.” Yet she was

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No. 19-40664

actively seeking to unseat at least one judge by supporting her sister’s
candidacy. It is easy to see that such a conflicting position may have
hampered the ability of the DA’s office to discharge its duties.
Garza herself details how her activities “adversely affect[ed] the
government’s ability to provide services.” Vojvodich, 48 F.3d at 887. Garza—
a department head—alleges that communication with Escobar broke down
almost completely. After Escobar began shifting her work to other
employees, Garza defied his wishes and contined to prepare witnesses for
trial. This “undercurrent of duplicity” from a department head would
unavoidably “impede the ‘close working relationships[]’ which the Supreme
Court has specifically held to be crucial in public attorney’s offices.”
Lumpkin, 712 F. App’x at 359. Further, Garza worked half-days and took a
leave of absence that lasted over two months. Garza herself tells us what the
result of all this was: “the proper preparation of crime victims to testify at
trial” and “the efficient and effective functioning of the Crime Victims
Unit”—a key department in the DA’s Office—was “sacrificed.”
Further supporting our conclusion, we have recognized that “[t]he
political sensitivity of DA offices is reinforced in Texas law by statutory
provisions that enable the DA to hire all office personnel required for the
proper and efficient operation and administration of the office, render all
such personnel subject to removal at will, and render investigators under the
exclusive authority and direction of the prosecuting attorney.” Maldonado,
932 F.3d at 394. “Once the DA is [elected], the office must be sensitive to
that official’s policy demands as represented to the voters. . . . [T]he DA is
ultimately responsible for every interaction between his office and the
public.” Id. at 392. Here, Garza’s lack of loyalty led to a deterioration of her
working relationship with Escobar, and to her eventual defiance of his
instructions. As we have detailed, this disobedience contravened her
statutory duties, which included the obligation to “work closely with . . .

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No. 19-40664

prosecuting attorneys” in securing the rights of crime victims. See TEX.
CODE CRIM. PROC. art. § 56.04(b).
For these reasons, we conclude that Garza’s actions disrupted the
efficient and effective functioning of the DA’s office and thus that her
position is one for which political affiliation is an appropriate requirement.
See Branti, 445 U.S. at 518. Garza’s employment was therefore not shielded
by the First Amendment, and, as the district court correctly concluded, she
was subject to patronage dismissal. Judgment on the pleadings in favor of
Escobar on this issue was appropriate. See Fed. R. Civ. P. 12(c). 5
B.
Garza also asserted a municipal liability claim against Starr County
based on Escobar’s conduct, and an official capacity claim against Escobar.
The district court dismissed the municipal liability claim because Garza failed
to plausibly allege a constitutional violation. It also dismissed the official
capacity claim as duplicative of the claim against Starr County.
The district court was correct in both regards. See Hicks-Fields v.
Harris Cty., Tex., 860 F.3d 803, 808 (5th Cir. 2017) (“[E]very Monell claim
requires an underlying constitutional violation.” (quotation marks omitted));
Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001) (official capacity
claims properly dismissed where “allegations duplicate claims against the
respective governmental entities themselves.”). 6

5
Because we conclude that Garza was subject to the Elrod-Branti exception, we
do not address Escobar’s alternative argument that he is entitled to qualified immunity
from Garza’s § 1983 claims.
6
Garza briefly argues that her official capacity claim against Escobar was not
duplicative of the claim against Starr County because Escobar’s office embraces two
other counties. She cites no relevant legal authority supporting this proposition, and
other than pointing out that the office covers three counties, offers no arguments as to

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* * *
The judgment of the district court is AFFIRMED.

why the claims are not duplicative. She thus fails to demonstrate the district court
erred. See Osborne v. Coleman Co., 602 F.2d 725, 726 (5th Cir. 1979) (appellant bears
burden of convincing court of appeals that district court erred); see also Brinkmann v.
Dallas Cty. Sheriff, 813 F.2d 744, 748 (5th Cir. 1987) (failure to offer substantive legal
arguments “is the same as if [petitioner] had not appealed that judgment”).

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