Stewart v. TDCJ-ID ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40796
Summary Calendar
ROBERT LEE STEWART,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; WAYNE SCOTT;
SHARON KEILIN,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
(9:96-CV-285)
April 15, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Robert Lee Stewart is a former employee of the Texas
Department of Criminal Justice - Institutional Division (TDCJ-ID).
While employed at the Eastham Unit, Stewart began a relationship
with the warden’s secretary. Although estranged from his wife at
the time, he was still legally married. Stewart was transferred by
the TDCJ-ID, apparently because his relationship had “violated the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
sanctity of the warden’s office.” Stewart’s transfer occurred
without notice or hearing. Stewart alleges that the transfer
caused him personal hardship, and, after being assigned night duty
at his new unit, Stewart resigned citing health reasons. Stewart
later married the warden’s secretary.
Stewart sued under 42 U.S.C. § 1983, claiming that his rights
to privacy/association and due process were violated by the
transfer. The district court granted the defendants judgment on
the pleadings pursuant to Fed. R. Civ. P. 12(c), reasoning that
Stewart had failed to demonstrate the violation of any clearly
established constitutional rights. We agree.
Stewart first claims that his transfer, allegedly in
retaliation for his relationship with the warden’s secretary,
violated his rights to association and privacy. Yet even if
Stewart was estranged from his wife at the time of the relationship
with the secretary, he was still legally married. Stewart has been
unable to produce to us any authority supporting a constitutional
right to date others while still married. Indeed, the existing
authority would indicated otherwise. See City of Sherman v. Henry,
928 S.W.2d 464, 469-72 (Tex. 1996) (summarizing the law).
Stewart’s attempt to recharacterize this right as one of
association is unavailing, for he has produced no authority to
suggest that the Constitution protects the rights of those who wish
to associate intimately with others in extramarital affairs. Even
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if such a right might exist, it was not clearly established at the
time of Stewart’s transfer.
Second, Stewart asserts that his transfer without notice or
hearing violated his due process rights. He points to the policies
and procedures of the TDCJ-ID and suggests that they constitute an
agreement to treat him fairly in his employment. Yet the general
rule in Texas is that employment contracts are “at-will,” and
employees may not attempt to incorporate into their contracts
principles annunciated unilaterally by an employer in an employment
manual or the like. See Aiello v. United Air Lines, Inc., 818 F.2d
1196, 1198 (5th Cir. 1987). Because Stewart failed to demonstrate
that his transfer violated any express term of his employment
contract, his due process claim likewise fails.
AFFIRMED.
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