A federal lawsuit filed against 229th District Attorney Omar Escobar alleging wrongful termination was dismissed Wednesday after a judge ruled the former employee was not protected by the First Amendment in her position.
Bernice Garza, 44, worked as for the 229th District Attorney’s Office in Starr County until she was officially terminated in April 2018.
According to the complaint she filed in August 2018, Garza claimed Escobar fired her essentially for working for her sister’s political campaign.
Garza’s sister, Leticia “Letty” Garza Galvan, unsuccessfully ran for Starr County judge during the March 2018 Democratic Primary.
Garza alleged that Escobar threatened her not to work on the election and threatened an investigation, but according to the complaint, she “knew she had done nothing wrong and she did not let Escobar’s puffery dissuade her from exercising her rights, guaranteed under the federal constitution, to support her sister’s campaign.”
In his response filed to the court, Escobar denied that he fired Garza for political reasons and, subsequently, his attorneys filed a motion to dismiss which U.S. District Judge Micaela Alvarez granted on Wednesday.
In her opinion, Alvarez noted that political affiliation is a necessary job requirement for some positions, depending on their duties.
“Considering these job responsibilities, the Court finds Plaintiff’s position is such that political loyalty was an appropriate job requirement,” the opinion stated. “First, Plaintiff’s position is ‘not well defined’ and provides a ‘broad scope’ of responsibilities, which makes it ‘more likely’ that Plaintiff functions as a policymaker.”
The judge noted that Garza’s job, as the coordinator for the crime victims’ unit, required her to work closely with Escobar’s office, implement his policies, serve as the public face of his office when working with crime victims, and raise funds for the office by writing grants.
“Each of these supports finding that Plaintiff’s position as Coordinator of the CVU is one in which political affiliation ‘is an appropriate requirement,’” Alvarez stated.
“Taken as a whole, it is difficult to imagine a district attorney’s office being able to efficiently function if the person appointed to Plaintiff’s former position was not trusted by and loyal to the district attorney’s office.”
However, it was also important to establish that Garza’s political affiliation somehow negatively affected the office’s ability to provide services.
To that point, the judge pointed to Garza’s own statements in the complaint in which Garza stated that the environment in the office became uncomfortable so she took a leave of absence from Jan. 3 through March 18.
“(Garza’s) allegations are that she was initially placed in her position because of her political loyalty to Escobar, and then later she was dismissed because her political disagreements with Escobar led to a breakdown in communication between the two,” the judge noted in the opinion.
“The lack of communication, in turn, led to a disruption in government services, including Plaintiff’s more than two-month absence from her position,” she further stated. “These allegations are sufficient to find that Plaintiff’s role, in the circumstances as alleged, ‘necessitated an allegiance’ to the district attorney’s office.”
Jerad Najvar, Garza’s attorney, said he expected to appeal the ruling to the U.S. Court of Appeals for the 5th Circuit.
“It’s going to present a really important question for the 5th Circuit,” Najvar said Wednesday.
“I don’t think that the law should recognize an expansion of the exception for First Amendment protection for a crime victims coordinator,” he said. “I don’t think it’s a political position and I think that it will be important of the court of appeals to weigh in on.”
Escobar, though, appeared confident that an appeal would render the same outcome.
“I don’t expect that it’s going to be any different than what the trial court ordered,” he said. “I think the trial court was pretty clear about the law that applies in this case so I don’t think it will be a different result.”