UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50771 Summary Calendar

MICHAEL LACEY,

Plaintiff-Appellee, versus

RUBEN TEJEDA, Etc; ET AL.,

Defendants,

RUBEN TEJEDA, Bexar County Constable Precinct 5, Individually and in his Official Capacity,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (SA-00-CV-786-EP) _________________________________________________________________ January 8, 2002 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Constable Ruben Tejeda appeals his being denied qualified

immunity against Michael Lacey’s First Amendment retaliation claim.

AFFIRMED.

I.

Lacey was employed by the Bexar County, Texas, constable’s

office, achieving the position of chief deputy before being

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. terminated in July 1998. Lacey contends that, prior to his

termination, he became aware of illegal activity in that office.

Lacey asserts: he was informed that one deputy constable was using

illegal steroids; Constable Tejeda received payment for work done

for private citizens by deputy constables while on county time; and

the Constable did not report these payments to the county auditor.

After Lacey informed Constable Tejeda about these items, the

Constable ordered Lacey to provide him with all information and

evidence he had relating to them. Lacey refused; instead, he

provided the information to the Bexar County district attorney’s

office and the Texas Rangers. Lacey claims he was terminated due

to his refusal to provide the investigative files to the Constable

and because he provided the information to other entities.

Lacey filed a grievance with the Bexar County Civil Service

Commission, which ordered his reinstatement. When Constable Tejeda

refused to allow Lacey to return, Lacey unsuccessfully sought a

writ of mandamus from state district court; the denial was upheld

by the Texas Court of Appeals on the basis the commission was

without authority to order the reinstatement. See Lacey v. Tejeda,

(Tex. App. 2001).

Lacey filed this action in July 2000 under

and the Texas Whistleblower Act, claiming his termination violated

his procedural and substantive due process rights and was in

2 retaliation for exercising his First Amendment rights and for

reporting the alleged illegal conduct.

The County’s motion to dismiss and/or for summary judgment was

granted. Constable Tejeda’s summary judgment motion was granted in

part and denied in part, leaving only the First Amendment

retaliation claim and denying qualified immunity. Lacey v. Tejeda,

No. SA-00-CA-786-EP, at 11 (W.D. Tex. 30 Jul. 2001).

II.

In this interlocutory appeal, Tejeda maintains he is entitled

to qualified immunity, asserting: (1) there was no violation of a

clearly established constitutional right because Lacey’s speech was

not public in nature and there was no nexus between the speech and

the termination; and (2) his (Constable Tejeda’s) actions were

objectively reasonable.

The “denial of summary judgment on qualified immunity is ...

immediately appealable, even when a genuine issue of material fact

exists, when the order determines a question of law”. Hare v. City

of Corinth, Miss.,

(5th Cir. 1998). Restated,

our jurisdiction is limited to immunity denials “turn[ing] upon an

issue of law and not of fact”. Stem v. Ahearn,

(5th

Cir. 1990), cert. denied,

(1991).

No authority need be cited for the fact that, in reviewing a

summary judgment denial, we view the record de novo. Of course,

3 the evidence is viewed “in the light most favorable to the

nonmovant”. Hare,

.

Constable Tejeda is entitled to qualified immunity unless:

Lacey has alleged the violation of a clearly established

constitutional right; and the Constable’s conduct was objectively

unreasonable in the light of clearly established law. E.g., Harlow

v. Fitzgerald,

(1982).

A.

For a First Amendment retaliation claim, Lacey must allege:

(1) he suffered an adverse employment action; (2) his speech

involved an issue of public concern; (3) his interest in making it

outweighed the defendant’s interest in efficiency; and (4) the

speech motivated the adverse employment action. Kennedy v.

Tangipahoa Parish Library Bd. of Control,

(5th

Cir. 2000). Constable Tejeda contends that Lacey has not satisfied

the second and fourth elements.

1.

Concerning the fourth element, a nexus between the speech and

the termination, Lacey asserts, and Constable Tejeda does not

contest, that the Constable never raised this issue in district

court. Generally, “we [do not] consider matters not presented to

the trial court”. St. Paul Mercury Ins. Co. v. Williamson,

(5th Cir. 2000). Accordingly, we will not consider

this issue raised for the first time on appeal.

4 2.

Concerning the second element, the district court concluded

that Lacey’s speech involved an issue of public concern. We will

assume this is a “mixed speech” case in that Lacey was speaking as

both citizen and employee. See, e.g., Teague v. City of Flower

Mound, Tex.,

(5th Cir. 1999) (mixed speech

occurs where speech is of both a public and private concern; that

regarding police corruption is a matter of public concern; that

regarding conditions of employment is a matter of private concern).

Mixed speech is a matter of public concern if: (1) the

content “does not involve solely personal matters or [is not]

strictly a discussion of management policies that is only

interesting to the public by virtue of the manager’s status as an

arm of the government”; (2) the speech, even though not directed to

the public, is “made against the backdrop of public debate”; and

(3) the speech is not “made in furtherance of a personal employer-

employee dispute”. Kennedy,

.

a.

Lacy reported alleged illegal drug use within the constable’s

office, as well as Tejeda’s not disclosing payment from private

parties for work by on-duty deputy constables. These subjects are

not a personal matter and are not of interest to the public solely

because of the Constable’s status as an arm of the government.

Instead, this information goes to the very heart of public

5 confidence in the integrity of law enforcement. Likewise, such

reporting is not a personal employer-employee dispute; these issues

are independent of, for example, his job performance or the

conditions of his employment.

b.

Lacey’s speech was not made to the public, but to the district

attorney and the Texas Rangers. Accordingly the issue is whether

it was made against the backdrop of public debate. There is

certainly public debate regarding police misconduct; and, as the

district court found, although Lacey did not take his allegations

to the media, other deputy constables did report to the media

alleged corrupt practices within the constable’s office.

Therefore, Lacey’s report was made against the backdrop of public

debate regarding police misconduct.

In sum, Lacey alleged the violation of a clearly established

constitutional right.

B.

Therefore, the next inquiry is whether Constable Tejeda acted

objectively reasonably. Although the Constable contends he did so

act, he did not present this issue to the district court. (Nor

does he contest Lacey’s assertion that the issue was not raised

there.) Along this line, the district court did not mention, much

less rule on, objective reasonableness. As stated, we generally do

not consider issues raised for the first time on appeal; we will

not do so here.

6 III.

For the foregoing reasons, the qualified immunity denial is

AFFIRMED.

7