Bevers v. City of Dallas

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
K. BART BEVERS,
Plaintiff,
v.
CITY OF DALLAS, TEXAS et al.,
Defendants.
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Civil Action No. 3:25-CV -2769-X
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants City of Dallas, Eric Johnson, Kimberly Bizor
Tolbert, and Tammy Palomino’s motion to dismiss. 	(Doc. 4). 	After considering the
relevant 	law 	and 	the 	arguments 	of 	parties, 	the 	Court 	GRANTS 	IN 	PART
Defendants’ motion and dismisses Bevers’s Federal Due Process claims.. The Court
declines to exercise supplemental jurisdiction over Bevers’s remaining state law
claims and intends to remand this case to the 116th Judicial District Court, Dallas
County, Texas; however, the Court GRANTS LEAVE to the parties to file briefing
stating their objections, if any, by 28 days from the entry of this order and STAYS
execution of the remand order pending objections.
I. 	Background
Plaintiff K. Bart Bevers was appointed as the interim Inspector General for
the City of Dallas. 	Like any interim, such as D.J. Durkin at Auburn, he hoped to
keep the job full time. 	But the City of Dallas had other plans. 	Following the
appointment of his successor, Bevers filed suit alleging (1) retaliation under the
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Texas Whistleblower Act, (2) wrongful termination, (3) violations of due course and
due process rights under the Texas and United States Constitutions, (4) ultra vires
acts by the city officials and (5) declaratory relief under the Uniform Declaratory
Judgments Act. 	Defendants removed this action on the basis of federal question
jurisdiction because Bevers alleges a cause of action under the Due Process Clauses
of the Fifth and Fourteenth Amendments of the United States Constitution.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) authorizes the Court to dismiss a claim
that is not plausibly alleged.1 To survive a 12(b)(6) motion, a complaint must allege
“enough facts to state a claim to relief that is plausible on its face.”2 	A claim is
plausible when it “allows the Court to draw the reasonable inference that the
defendant is liable for the misconduct alleged,”3 which requires “more than a sheer
possibility that [the] defendant has acted unlawfully.”4 	“[A] formulaic recitation of
the elements of a cause of action will not do.”5 	And the pleading must offer “more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.”6 	The court
does not accept as true “conclusory allegations, unwarranted factual inferences, or
legal conclusions.”7
1 FED. R. C IV. P. 12(b)(6).
2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
4 Id.
5 Id. (cleaned up).
6 Id.
7 Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007).
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III. Analysis
Defendants seek to dismiss all of Bevers’s claims, raising a bevy of arguments
for each claim. 	But the entire basis for jurisdiction in federal court is Bevers’s due
process claim. 	So, the Court considers the due process question first. 	Because
Bevers’s due process claim fails as a matter of law, the Court declines to exercise
supplemental jurisdiction over the remaining state law claims and REMANDS this
action to state court, but STAYS the execution of the remand for 28 days pending the
parties’ potential objections.
A. Federal Due Process Claims
Defendants move to dismiss Bevers’s federal due process claims because he did
not have a property interest in his continued employment.8 Bevers responds arguing
a city resolution fixed his tenure and incorporated the city charter’s protections for
his employment. The Court agrees with Defendants.
Bevers’s Fifth Amendment claim fails as a matter of law because the Fifth
Amendment Due Process Clause only applies to the federal government.9
That said, the Fourteenth Amendment protects citizens from government acts
that 	“deprive 	any 	person 	of 	life, 	liberty, 	or 	property, 	without 	due 	process 	of
law.”10 When asserting the right of continued government employment as either a
8 Defendants analyze Bevers’s federal due process claims and state due-course-of-law claim
together. But the Court does not do the same. The Texas Constitution’s clause is distinct both in text,
history, and origin from the federal due process clauses. And emerging scholarship argues that the
due-court-of-law clause should not be understood as merely duplicative of the due process clause. See
Arif Panju, Jeff Rowes, & Wes Dodson, Every Safeguard Known to Constitutional Law, 28 Tex. Rev. L.
& Pol. 178 (2024).
9 See Dusenbery v. United States, 534 U.S. 161, 167 (2002).
10 U.S. C ONST . amend. XIV, § 1.
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procedural or substantive due process claim, the plaintiff must plead a plausible
property interest.11 Bevers does not specify whether his property claim is procedural
or substantive.
A property interest under the Fourteenth Amendment Due Process Clause “is
an individual entitlement grounded in state law, which cannot be removed except for
cause.”12 Thus a government employee may have a property interest if “under state
law a state employee is granted a claim of entitlement to continued employment
absent sufficient cause for discharge, that state employee has been granted a property
interest that demands the procedural protections of due process.”13 In this way the
property interest is a “vested right” that “amounts to more than a mere expectancy
based on the anticipated continuance of existing law.”14
Here, Bevers’s Fourteenth Amendment claim fails as a matter of law because
he did not have a plausible property interest. 	The city council’s appointment
language makes clear that the term is “to serve until the City Council selects and
appoints the Inspector General.”15 	That is exactly what happened here—Bevers
served until the city picked a full-time inspector general. 	So Bevers’s tenure as
interim ended when the city picked a full-time person for the role.
11 See Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993) (requiring a property
interest for a substantive due process claim); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546
(1985) (requiring an employee first have a property interest for a procedural due process claim).
12 Woodard v. Andrus, 419 F.3d 348, 353 (5th Cir. 2005) (cleaned up).
13 Id. at 354.
14 McGarry v. Houston Firefighters’ Relief & Ret. Fund, 680 S.W.3d 14, 29 (Tex. App.—Houston
[1st Dist.] 2023, pet. denied).
15 Doc. 4 at 3 (Nov. 19, 2024, City Council Resolution Appointing Bevers).
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And even if some ambiguity exists in whether the resolution created a property
right, “any ambiguity in the grant of a property interest in employment is resolved in
favor of the state.”16
Accordingly, Bevers’s Fourteenth Amendment claim also fails as a matter of
law because he does not have a vested property right in continued employment of his
temporary position.
B. Remand
Having dismissed Bevers’s sole basis for federal jurisdiction, the Court must
next consider whether to exercise supplemental jurisdiction over the remaining state
law claims. The Court, in its discretion, declines to do so.
Where a district court has original jurisdiction over a civil action, it also has
“supplemental jurisdiction over all other claims that are so related to claims in the
action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.”17 In the Fifth Circuit
“[t]he general rule is that a court should decline to exercise jurisdiction over
remaining state-law claims when all federal-law claims are eliminated before trial.”18
Even where a district court has supplemental jurisdiction, it may decline to exercise
supplemental 	jurisdiction 	“in 	exceptional 	circumstances” 	if 	“there 	are 	other
16 Byars v. City of Austin, 910 S.W.2d 520, 523 (Tex. App.—Austin 1995, writ denied).
17 28 U.S.C. § 1367(a).
18 Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc., 554 F.3d 595, 602 (5th Cir. 2009)
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compelling reasons for declining jurisdiction,”19 because supplemental jurisdiction “is
a doctrine of discretion, not of plaintiff’s right.”20
Here, the Court exercises its discretion to follow the Fifth Circuit’s general
rule. Having dismissed the sole federal claim, the state law claims predominate over
the case, and a Texas court is better suited to decide these questions of Texas state
law.
IV. Leave to Amend
Bevers’s response, in the alternative, requests the Court dismiss without
prejudice, should the Court grant any part of Defendants’ motion to dismiss. 	The
Court concludes that dismissal with prejudice is warranted.
Leave 	should 	be 	“freely 	given 	when 	justice 	so 	requires,” 	and 	denial 	is
appropriate only upon a substantial showing of futility, undue delay, bad faith,
repeated failure to cure deficiencies, or undue prejudice.21 Leave to amend is futile
when an amended complaint, analyzed under the legal sufficiency standard of Rule
12(b)(6), would still fail to state a claim upon which relief can be granted.
Here, Bevers cannot plausibly state a claim that would survive Rule 12(b)(6)
for his federal due process claims. Bevers’s job as interim Inspector General did not
vest a property interest under the state or federal constitution—and that cannot
change under any additional alleged facts. 	Although Rule 15(a) “evinces a bias in
19 See 28 U.S.C. § 1367(c)(4).
20 City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 172 (1997) (cleaned up).
21 See Foman v. Davis, 371 U.S. 178, 182 (1962).
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favor of granting leave to amend,” the Court need not grant leave in this circumstance
where any future amendment would be futile.22
V. 	Conclusion
Accordingly, the Court GRANTS IN PART Defendants’ motion to dismiss and
DISMISSES WITH PREJUDICE Bevers’s federal due process claims. 	The Court
DECLINES to exercise supplemental jurisdiction over the remaining state-law
claims. 	Therefore, the Court REMANDS this case to the 116th Judicial District
Court, Dallas County, Texas, but STAYS the execution of the remand for 28 days for
the parties to file any objection to the Court’s decision to decline to exercise
supplemental jurisdiction.
IT IS SO ORDERED this 13th day of December, 2026.
___________________________________
BRANTLEY STARR
UNITED STATES DISTRICT JUDGE
22 Herrmann Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 566 (5th Cir. 2002).
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