The opinion
UNITED STATES DISTRICT COURT January 30, 2024
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
CORPUS CHRISTI DIVISION
KRISTI KESEL BRITT, §
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Plaintiff, §
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VS. § CIVIL ACTION NO. 2:23-CV-00319
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NUECES COUNTY, et al., §
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Defendants. §
ORDER ON MOTION TO DISMISS
Plaintiff Kristi Kesel Britt (Britt) filed this action against Defendants Nueces
County, Texas, James D. Granberry in his official capacity (Granberry), and the Nueces
County District Attorney’s Office1 for employment retaliation based on her First
Amendment exercise of free speech. D.E. 1. Before the Court is Defendants’ Motion to
Dismiss (D.E. 4) under Federal Rule of Civil Procedure 12(b)(6), arguing that Britt’s
allegations negate her claim. More specifically, as an assistant district attorney, Britt did
not have First Amendment protections against a politically-motivated adverse employment
action.2 Plaintiff has responded (D.E. 12), arguing that Defendants’ position is not
1 The Nueces County District Attorney’s Office is a nonjural entity. See Barrie v. Nueces Cnty. Dist. Atty’s Off., 753
F. App’x 260, 264 (5th Cir. 2018). Because the claim may be dismissed on its merits, the motion to dismiss does not
specifically address this issue.
2 Defendants also assert the defense of qualified immunity on behalf of Defendant Granberry in his individual
capacity. Plaintiff has disclaimed any intention to sue Granberry in his individual capacity. D.E. 12, p. 1 n.1.
Therefore, any claim against Defendant Granberry in his individual capacity is DISMISSED and the motion to dismiss
(D.E. 4) is DENIED IN PART AS MOOT with respect to the claim of qualified immunity.
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supported by the law and that her employment is entitled to First Amendment protection
through changing political winds. For the reasons set out below, the motion is GRANTED.
STANDARD OF REVIEW
The test of pleadings under Rule 12(b)(6) is devised to balance a party’s right to
redress against the interests of all parties and the court in minimizing expenditure of time,
money, and resources. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). “Pleadings
must be construed so as to do justice.” Fed. R. Civ. P. 8(e). Factual allegations are taken
as true, even if doubtful. Twombly, 550 U.S. at 555. However, if some allegations negate
the claim on its face, then the pleading does not survive the Rule 12(b)(6) review. Jones
v. Bock, 549 U.S. 199, 215 (2007).
FACTS
The Court accepts the following facts as true under the standard of review. Since
2019, Britt has worked as a prosecuting attorney—as Assistant District Attorney for
Nueces County. D.E. 1, ¶ 12. At all times, Britt had a spotless employment record. Id., ¶
12. On January 31, 2023, Britt announced her candidacy for district attorney after the prior
district attorney resigned. Id., ¶ 13.
On October 6, 2023, the Governor appointed Defendant Granberry to fill the empty
position of district attorney. Id., ¶ 14. On October 10, 2023, Granberry gave Britt the
choice of giving up her candidacy and supporting Granberry or suffer either a demotion
(including a reduction in pay and restriction to misdemeanor cases) or termination. Id., ¶
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15. On October 23, 2023, Britt was demoted, consistent with Granberry’s prior threat. Id.,
¶ 16.
DISCUSSION
A. Suitability of a Rule 12 Disposition
Britt argues that the issue Defendants pose—whether she was a policymaker exempt
from the First Amendment's protection against patronage dismissals—is a case-specific
issue that requires an evidentiary balance that is not appropriate for decision on the
pleadings, alone. According to Britt, evidence is required so that the Court may apply the
Pickering3 balancing test “between the employee’s speech and associational rights as
citizen and the state’s right as an employer to loyal and efficient service.” D.E. 12, p. 5
(quoting McBee v. Jim Hogg Cnty., 730 F.2d 1009, 1014 (5th Cir. 1984)).
This may be the case where there are questions regarding exactly how much
policymaking the employee does or how much the employee’s political position affects the
efficiency of the government office. In McBee, the affected employee was a sheriff’s
deputy. It is not clear, without evidence, how a sheriff’s deputy can impede the
policymaking efforts of the sheriff. Here, the issue is not so opaque. The operative facts
and the law are clear.
Therefore, the Court rejects Britt’s argument that the motion is improper and
proceeds to adjudicate the merits of Defendants’ motion at the pleading stage under Rule
12(b)(6).
3 Pickering v. Bd. of Educ., 391 U.S. 563 (1968).
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B. Assistant District Attorneys Are Exempt from First Amendment Protection
Under the general rule, an employee is exempt from First Amendment protection
from patronage actions where she occupies a position that exercises policymaking powers
of the employer. See Aucoin v. Haney, 306 F.3d 268, 275 (5th Cir. 2002). Defendants
assert that an assistant prosecutor occupies a political, policymaking position and therefore
lacks protection from patronage employment decisions made when a new individual
assumes the prosecutor’s office. D.E. 4, p. 1.
Texas Statutory Definitions. Texas law defines the duties of the employer, the
district attorney, as follows:
Each district attorney shall represent the State in all criminal
cases in the district courts of his district and in appeals
therefrom, except in cases where he has been, before his
election, employed adversely. When any criminal proceeding
is had before an examining court in his district or before a judge
upon habeas corpus, and he is notified of the same, and is at
the time within his district, he shall represent the State therein,
unless prevented by other official duties. It shall be the primary
duty of all prosecuting attorneys, including any special
prosecutors, not to convict, but to see that justice is done. They
shall not suppress facts or secrete witnesses capable of
establishing the innocence of the accused.
Tex. Code Crim. P. art. 2.01. “An assistant prosecuting attorney may perform all duties
imposed by law on the prosecuting attorney.” Tex. Gov't Code § 41.103. And “All
personnel of a prosecuting attorney's office are subject to removal at the will of the
prosecuting attorney.” Tex. Gov’t Code § 41.105. As a matter of black-letter law, Britt is
in a position of policymaking on behalf of the District Attorney, Granberry.
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Authority Addressing Attorneys. Britt has not supplied the Court with any case
that finds that a criminal prosecutor does not occupy a policymaking position and is thus
protected by the First Amendment. To the contrary, Defendants have presented the Court
with authority that courts unanimously hold that assistant prosecutors are policymakers.
See Aucoin, 306 F.3d at 275 (citing cases); Borzilleri v. Mosby, 874 F.3d 187, 189 (4th Cir.
2017) (collecting cases).
Britt complains that Borzilleri is a Fourth Circuit case and that Aucoin, while a Fifth
Circuit case, applies Louisiana law. But the rationale for the cases holds true under Texas
law, as set out above and as found in Cudd v. Aldrich, 982 F. Supp. 463, 468 (S.D. Tex.
1997). In Cudd, our sister court noted that the political nature of the assistant district
attorney is a question of law. And its opinion rejected the plaintiff’s attempt to create a
fact question to dispute the level of policymaking authority conferred on her by denigrating
the nature of her actual daily activities. Here, Britt has not only failed to plead any facts
that would raise such a question, she affirmatively represents that she has performed her
duties as an assistant prosecutor at the highest level—eliminating any question regarding
the nature of her work.
The role of an assistant prosecutor is undeniably one of policymaking, as addressed
in political patronage cases.
Assistant prosecutors make discretionary decisions of real
consequence. They oversee investigations, prosecute crimes,
and negotiate plea deals. As the Supreme Court explained in
Branti, prosecutors have “broader public responsibilities”
beyond the mere representation of individual citizens. They
represent and safeguard the public at large. These
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responsibilities are laden with ideological content. How much
of a prosecutor's limited resources should go toward a
particular category of crime? Does one type of plea deal call
for leniency or severity? Questions like these are debated in
prosecutorial campaigns across the country. That is to say,
there is much “room for political disagreement,” in carrying
out prosecutorial priorities.
Borzilleri, 874 F.3d at 191 (citations omitted).
The Cudd court wrote similarly in addressing Texas law.
In sum, the position of assistant district attorney requires a
close working relationship with the district attorney, an elected
official who must answer to the constituents of the county. It is
a job requiring judgment, integrity, intelligence, and wisdom.
When the district attorney has no confidence in the loyalty of
his assistant district attorneys, who possess the same inherent
policymaking authority as he does, it can cause manifest
discord, prosecutorial disparity, and confusion. Such discord
and confusion can thwart the programs and policies of the
elected district attorney, and jeopardize his public status.
Cudd, 982 F. Supp. at 468. To hold otherwise would undermine the public mandate
bestowed by political office and “would needlessly interfere with a state official's
managerial prerogative.” Borzilleri, 874 F.3d at 189.
C. Demotion versus Dismissal
Britt seeks to distinguish her case because (a) she was not dismissed, but demoted,
and (b) she had announced her candidacy long before Granberry took office, declared his
own candidacy, and took employment action against her—calling into question any
rationale based on ridding the office of disloyal staff. This argument fails. Granberry took
action quickly to reduce her role once he was appointed to the office of district attorney,
regardless of when she, or he, announced candidacy in the election.
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The argument that she remains in the office and still represents a risk of disloyalty
is not compelling. According to the face of her complaint, she was stripped of her power
as Chief of Intake and she was reduced to handling only misdemeanor cases. These actions
significantly cabin the scope of her influence. Nothing in the caselaw suggests that
patronage cases require full termination of the employee. Rather, patronage cases give the
district attorney the discretion to operate the office as he sees fit.
D. Leave to Amend
Britt included in her response a request for leave to amend if her pleading is found
insufficient. D.E. 12, p. 8. A court need not grant a motion for leave to amend where the
movant fails to specify what amendment is desired and how it would cure its pleading
defects. United States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375,
387 (5th Cir. 2003). When seeking to amend, the movant must set forth “with particularity
the grounds for the amendment and the relief sought.” Id. A “bare request in an opposition
in a motion to dismiss” absent any particular grounds is inadequate. Id.
Moreover, leave to amend is improper when such an amendment would be futile.
Foman v. Davis, 371 U.S. 178, 182 (1962). As the Cudd opinion makes clear, Britt’s
exemption from First Amendment protection of her employment is a matter of law and no
factual allegations will change the statutory policymaking nature of an assistant district
attorney’s position. The Court DENIES Britt’s motion for leave to amend.
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CONCLUSION
For the reasons set out above, the Court GRANTS IN PART Defendants’ motion
to dismiss (D.E. 4) and DISMISSES WITH PREJUDICE Britt’s claim that she was
improperly subjected to a patronage demotion. The Court DENIES IN PART AS MOOT
Defendants’ motion to dismiss (D.E. 4) insofar as it advances the qualified immunity
defense. Britt’s request for leave to amend (D.E. 12) is DENIED. Consistent with prior
proceedings in this case, the Court will enter final judgment providing that this judgment
is without prejudice as to any claim Britt may seek to prosecute on any other basis.
ORDERED on January 30, 2024.
UNITED STATES DISTRICT JUDGE
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