Harris County, Texas and Kevin Vailes v. Barbara Coats, Individually, as Personal Representative of the Estate of Jamail Amron, and as Heir to the Estate of Jamail Amron, And Ali Amron, Individually and as Heir to the Estate of Jamail Amron

Motion for En Banc Reconsideration Denied and Dissenting Opinions on Order
filed September 17, 2020.

In The

Fourteenth Court of Appeals

NO. 14-17-00732-CV

HARRIS COUNTY, TEXAS AND KEVIN VAILES, Appellants

V.

BARBARA COATS AND ALI AMRON, Appellees

On Appeal from the 80th Judicial District Court of
Harris County, Texas
Trial Court Cause No. 2012-55551

DISSENTING OPINION FROM DENIAL OF EN BANC
RECONSIDERATION

The majority opinion neuters the protections set forth in Monell—protections
carefully designed to ensure that citizens can hold local government and other
municipalities accountable for violating their clearly established constitutional rights
through unconstitutional policies, practices, customs, or procedures. See generally
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690–91 (1978).
Therefore, I dissent.
Harris County can be held financially responsible via 42 U.S.C. section 1983
for actions of a final policymaker who has “the responsibility for . . . setting policy
in any given area of a local government’s business.” See City of St. Louis v.
Praprotnik, 485 U.S. 112, 125 (1988). An official can become responsible under
state law for making policy either directly (by legislative enactment) or indirectly
(by delegation). Pembaur v. Cincinnati, 475 U.S. 469, 483 (1986).
Harris County is divided into eight precincts, each of which elects its own
constable; while the Commissioner’s Court funds the salaries of each precinct, the
elected constable has unsupervised and final authority to terminate the employment
of any deputy who does not conform to department policy. Harris Cty. v. Nagel, 349
S.W.3d 769, 793 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (“[C]onstable
is the only official who has supervisory authority over the deputies and is responsible
for their official conduct as a matter of state law.”) (emphasis added) (citing Tex.
Loc. Gov’t Code § 86.011(c) and § 151.001), cert denied, 134 S. Ct. 117 (2013).
Similarly, the Harris County Commissioner’s Court lacks the authority to appoint or
terminate deputies in any precinct. Id. (citing Tex. Loc. Gov’t Code § 151.002 and
§ 151.003).
Here, Constable Hickman and other county representatives testified that
Hickman was the “number one guy” in Precinct Four as to their policies and these
are not reviewed by the sheriff. There is no evidence that any person other than the
Constable of Precinct Four is the person who can hire and fire individual deputies.
A court’s task is to “identify those officials or governmental bodies who speak
with final policymaking authority for the local government actor concerning the
action alleged to have caused the particular constitutional or statutory violation at
issue.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). Presented with this
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precise question, both this court and our sister court have held that Harris County
constables are policymakers for Harris County. Nagel, 349 S.W.3d at 793; Walsweer
v. Harris Cty., 796 S.W.2d 269, 273 (Tex. App.—Eastland 1990, writ denied) (“As
in Pembaur, the record is clear that Constable Maxon had the authority to establish
county policy as to the training and certification of the deputies in his precinct. The
[Harris County] Commissioners Court had delegated that authority to the constables
by acquiescing in each constable’s hiring and training policies . . . . The county
cannot escape liability by now arguing that the constable did not have policy-making
powers in his portion of the county.”), cert. denied, 502 U.S.866 (1991); see also
Tex. Gov’t Code 86.021(b) (“A constable may execute any civil or criminal process
throughout the county in which the constable’s precinct is located and in other
locations as provided by the Code of Criminal Procedure or by any other law.”).
The panel opinion also reverses the jury’s verdict and requires an expert to
opine about the cause of death and to exclude “with reasonable certainty the other
plausible cause that Jamail died from acute cocaine toxicity.” The jury was presented
with evidence from Amron’s expert along with the county’s expert. The charge
asked the jury to determine whether any individual or entity “proximately caused”
the death and further instructed that “there may be more than one proximate cause
of an occurrence.” The jury weighed the expert testimony and found that the
deputy’s boot over Amron’s mouth and nose was a substantial factor in his death.
Even while admitting that we should measure the sufficiency of the evidence by the
charge given, the panel then reformulates the analysis and reverses the jury verdict
because Amron did not disprove every other potential cause of death besides
suffocation. The jury was not charged with finding one cause of death to the
exclusion of all others. It was charged with determining whether the deputy’s actions
proximately caused Amron’s death.

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 The panel opinion also ignores the legal sufficiency review standard that
instructs appellate courts to “credit favorable evidence if reasonable jurors could,
and disregard contrary evidence unless reasonable jurors could not.” City of Keller
v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). The panel did not properly weigh the
presented evidence to determine whether it was legally sufficient to uphold the jury’s
verdict. Nor did the panel adhere to the longstanding ideals that jurors may believe
all, some, or none of a witness’s testimony and may even disregard uncontradicted
and unimpeached testimony from disinterested witnesses. Instead, the panel
substituted its opinion and view of the evidence for that of the jury.
The panel reached its underlying decision by reformulating the parties’
arguments, focusing on unpreserved issues, and substituting its judgment for the
jury’s. In doing so, the panel stripped away the vital protections that safeguard the
people’s constitutional rights from being violated by their own government.
Finally, this case reveals a systemic flaw in the current design of our review
as the votes to grant and the votes to deny en banc reconsideration are tied based
upon the fact that a colleague recused herself from the matter. In such circumstances,
it would benefit the citizens of Texas, whom we all seek to serve, for the Texas Rules
of Appellate Procedure to allow an additional justice to be temporarily appointed to
the relevant court of appeals. Here, the unavailability of a deciding vote means that
this erroneous precedent goes into effect based on a tie instead of a meaningful vote.
Here, the unavailability of a ninth vote is even more damaging to the rule of law
because the panel’s original opinion was issued contrary to otherwise binding
precedent from Nagel; under these circumstances, the en banc court is effectively
deprived of the ability to correct the panel’s impermissible departure from binding
law through no fault of the parties. This arrangement fails to benefit the citizenry,
the courts, and stare decisis.

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 /s/ Frances Bourliot
Justice

En banc court consists of Chief Justice Frost and Justices Christopher, Wise, Jewell,
Bourliot, Zimmerer, Spain, and Poissant. (Justice Hassan not participating).
Justices Bourliot, Zimmerer, Spain, and Poissant voted to grant en banc
reconsideration.
Justice Bourliot filed a dissenting opinion in which Justices Zimmerer and Spain
joined, and Justice Poissant joined in part on the merits only.
Justice Spain filed a dissenting opinion in which Justices Bourliot, Zimmerer, and
Poissant joined.
Justice Poissant filed a dissenting opinion, in which Justice Zimmerer joined.

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