Case 4:21-cv-01698 Document 51 Filed on 02/25/22 in TXSD Page 1 of 124

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

Liz Gomez, Marissa Sanchez, §

Felicia McKinney, Jacquelyn Aluotto, §
and Jassmine Huff, §
Plaintiffs §
§
v. § Civil Action No.4:21-cv-01698
§
Harris County, Texas; § (Jury Demanded)
§
Defendant §

PLAINTIFFS’ MOTION TO COMPEL DISCOVERY

Comes now, Plaintiffs, and files this Motion to Compel Discovery.

BACKGROUND

Beginning in 2019, the Harris County Precinct 1 Constable’s office decided to change its

format of its undercover operations in its human trafficking division to “bachelor party” stings.

During these “bachelor party” operations, the division would set up surveillance in a hotel room

or suite, and both male and female deputies would be present in an undercover capacity in a party-

like atmosphere, alcohol included, where the female deputies were ordered to pose as other

prostitutes present for the same purpose. Ideally, this would entice any prostitutes called to the

location to feel more comfortable in quickly agreeing to sex in exchange for a fee, and an arrest

could be made. This type of operation did not result in more productivity; it did provide an

opportunity though for the male deputies to have more fun under the guise of actual policework.

Each and every one of these “bachelor party” stings were county-sanctioned operations. During

the operations female deputies were required to be groped and fondled by their superiors and

remove their clothing.

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On May 24, 2021, Plaintiffs filed suit against Defendant, alleging a number of civil rights

violations against Harris County, specifically for events which occurred in connection with Harris

County Constable’s Office, Precinct 1’s human trafficking unit. The Complaint alleges civil rights

violation by Defendant including sexual harassment, sexual battery, and Violation of Equal

Protection by Bodily Integrity under via 42 USC 1983. Initially, three individuals were included

as defendants with Defendant Harris County.1 Harris County’s initial three co-defendants were

Defendants Rosen, Gore and Rigdon. All Defendants, other than Harris County, filed Motions to

Dismiss under Federal Rule of Civil Procedure Rule 12. The Court Granted Defendant Rosen’s

Motion to Dismiss and denied relief to Defendants Gore and Rigdon.2 Following the Court’s

rulings on Defendants’ Motions to Dismiss, Defendants Gore and Rigdon appealed. During the

appeal, Plaintiffs dismissed Defendants Gore and Rigdon, leaving Harris County as the remaining

Defendant.

Following the case returning to the 5th Circuit Court from Appeals, the parties agreed to

exchange Rule 26 initial disclosures on February 21, 2022.3 On February 21, 2022, Plaintiffs and

Defendant Harris County exchanged disclosures.4 In its Disclosures, Defendant Harris County

took the following position:

(2) A copy — or a description by category and location — of all

documents, electronically stored information, and tangible things that
the disclosing party has in its possession, custody, or control and may
use to support its claims or defenses, unless the use would be solely for
impeachment.
RESPONSE:

Harris County is not aware of any such information in its

1
Plaintiffs Original Complaint
2
Memorandum Opinion and Order
3
02.01.2022 Email Sandill to Ogden re: Confirming Date to Exchange Disclosures
4
Defendant Harris County, Texas’s Rule26(a)(1) Disclosures
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possession, custody, or control at this time. Harris County reserves the

right to amend or supplement its disclosure of documents as this case

progresses.5

After conferring with defense counsel, we understand now that Defendant Harris County’s

position is not that documents do not exist, but that Defendant Harris County is not in possession,

and instead the Harris County Precinct 1 Constable’s Office is the appropriate entity in possession,

custody, or control of any responsive evidence, outlined in FRCP Rule 26(a)(1)(A)(ii). Contrary

to Defendant’s disclosures, Plaintiffs believe that Defendant Harris County is in fact in possession,

custody, and control of said documents. Surely, after nearly a year of the case being on file, the

County isn’t stating that they do not have a single piece of evidence to support any of its defenses.

Rule 26 is designed to expedite the litigation process. Therefore, Plaintiffs file this Motion to

Compel the evidence outlined in FRCP Rule 26.

ARGUMENT

“[F]ederal courts have consistently held that documents are deemed to be within [a party's]

‘possession, custody or control’ for the purposes of Rule 34 if the party has actual possession,

custody, or control, or has the legal right to obtain the documents on demand.” Torrey v. Infectious

Diseases Soc'y of Am., 334 F.R.D. 79, 85 (E.D. Tex. 2019), quoting A. Farber & Partners, Inc. v.

Garber, 234 F.R.D. 186, 189 (C.D. Cal. 2006).

The party seeking discovery must “make a showing that the other party has control over

the documents sought.” S. Filter Media, LLC v. Halter, No. CIV.A. 13-116-JJB-RL, 2014 WL

4278788, at *5 (M.D. La. Aug. 29, 2014). “Typically, what must be shown to establish control

over documents in the possession of a non-party is that there is “a relationship, either because of

5
Id.
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some affiliation, employment, or statute, such that a party is able to command release of certain

documents by the non-party person or entity in actual possession.” Id., quoting Estate of Monroe

v. Bottle Rock Power Corp., No. 03–2682, 2004 WL 737463, at * 10 (E.D. La. April 2, 2004).

Evidencing the relationship between Defendant Harris County and the Harris County

Precinct 1 Constable’s Office, Courts have held the “Harris County Constable Precinct [1] is a

department of Harris County. It does not have the legal capacity to sue or be sued.” Turnage v.

County, No. CV H-14-2481, 2018 WL 1832321, at *3 (S.D. Tex. Apr. 16, 2018). The Texas

Constitution classifies constables as “county officers.” Tex. Cons. Art. V § § 18, 24; see also

id. Art. XVI § 61 (requiring counties to pay all “constables, deputy constables and *63 precinct

law enforcement officers” on a salary basis, while all fees earned by county and precinct officers

must be paid into “the County treasury”). The Texas Legislature does too. See Tex. Loc. Gov't

Code § 87.012(12) (identifying constables as county officers subject to removal, as well as any

other “county officer, not otherwise named by this section”); id. § 87.041(a)(10) (authorizing

county commissioner's court to fill vacancies of the constable's office); id. § 86.001(a) (obligating

elected constable who wishes to appoint a deputy to apply in writing to the commissioner's court

and show that it is necessary to appoint a deputy to handle the business of the constable's office);

id. § 152.001 (authorizing county to pay the compensation, expenses, and allowances of county

officers from the county's general fund). That the County is divided into precincts matters not. The

“Constitution and... the Local Government Code make it clear that a constable is... a county officer

regardless of the county's subdivision into precincts.” Harris County v. Walsweer, 930 S.W.2d

659, 666-67 (Tex. App. - Houston [1st Dist.] 1996, writ denied). And, as the Attorney General

recognized, a constable's law enforcement jurisdiction “extends to the entire county.” Op. Tex.

Att'y Gen. No. GA-0189 at 4 (2004).

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Defendant Harris County’s attempt to obfuscate its discovery obligations fails to pass

muster. The Turnage Court’s holding clearly prevents a plaintiff from directly suing a constable’s

office. Turnage, No. CV H-14-2481, 2018 WL 1832321, at *3 (S.D. Tex. Apr. 16, 2018). Turnage

requires a Plaintiff to sue a county rather than a county constable. Yet, Defendant Harris County’s

approach to discovery in this case would require a third-party subpoena to an entity that lacks the

power to be sued. Defendant Harris County’s conduct cannot be, and is not, the proper, good-faith,

approach to discovery obligations.

There is no question that evidence exists in the Harris County Precinct 1 Constable’s

Office. We know this because Plaintiffs are in possession of evidence that clearly shows additional

items exist which should have been produced. For instance, in Plaintiffs’ Disclosures to Defendant

Harris County, Plaintiffs produced hundreds of text messages, emails, photographs, and

documents. This includes:

1. The Harris County Operations Plan showing female deputies would be required to expose
their genitalia6
2. Transcript of audio recording between plaintiff and Harris County employees;7
3. Text Messages between County Officials and Plaintiffs,8
4. Photographs exhibiting Inappropriate Sexual Conduct during the undercover operations,9
Here, Plaintiffs produced over three thousand pages of documents in its disclosures.

Defendant Harris County did not produce a single page. It is an absolute certainty that this evidence

exists, and an absolute certainty that it is in possession of the County. We know that Defendant

Harris County has, if not already deleted, hours’ worth of video footage of the bachelor parties

from multiple camera angles. The video is obviously relevant and obviously critical evidence

which should not withheld and will foreseeably be relied upon by both parties –as it contains the

6
Attached as Exhibit 5
7
Attached As Exhibits 6
8
Attached As Exhibit 7
9
Attached as Exhibit 8
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truth of what occurred. Because Plaintiffs are in possession of communications between Plaintiffs

and County employees and officials, as well as the department’s undercover operations plans,

Plaintiffs are certain that documents in fact exist in the Harris County Constable’s Office. It is the

County who owns the computers, emails, and communications from and to county employees

conducting county business. The Court in Walsweer is unambiguous in identifying whether a

constable’s office are separate and distinct entities, stating The “Constitution and... the Local

Government Code make it clear that a constable is... a county officer regardless of the county's

subdivision into precincts.” Walsweer, 930 S.W.2d 659, 666-67 (Tex. App. - Houston [1st Dist.]

1996, writ denied).

CONCLUSION

It is now clear that Defendant Harris County is more interested in bureaucratic

gamesmanship, rather than approaching discovery in good faith. Considering the case law and

arguments presented above, Plaintiffs request the Court to Grant an Order Compelling Defendants

to produce documents outlined in FRCP Rule 26.

Date: February 25, 2022

Respectfully submitted,

THE AKERS FIRM, PLLC

/s/ Brock C. Akers

Brock C. Akers
TBN: 00953250
/s/ Cordt C. Akers
Cordt C. Akers
TBN: 24080122
3401 Allen Parkway, Suite 101
Houston, TX 77019
Phone: (713) 877-2500
Fax: (713) 583-8662
bca@akersfirm.com
cca@akersfirm.com
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ATTORNEYS FOR FELICIA McKINNEY,

JASSMINE HUFF, and JACQUELYN ALUOTTO

FARRAR & BALL, LLP

/s/ William R. Ogden

WILLIAM R. OGDEN
Texas State bar No. 24073531
Federal Bar No. 2202355
/s/ Mark Bankston
MARK BANKSTON
Texas State bar No. 24071066
117 Herkimer St.
Houston, TX 77008
713.221.8300 Telephone
713.221.8301 Fax
bill@fbtrial.com
mark@fbtrial.com

ATTORNEYS FOR LIZ GOMEZ and MARISSA

SANCHEZ

CERTIFICATE OF SERVICE

I hereby certify that on February 25, 2022, I electronically filed the foregoing document

with using the CM/ECF system, and a copy of this filing has been forwarded to all counsel of

record in accordance with the ECF local rules.

/s/ William R. Ogden

William R. Ogden
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