A federal judge has dismissed a lawsuit filed by a man claiming that the Smith County Precinct 4 Constable’s Office maliciously prosecuted him and violated his constitutional rights.
In the federal civil lawsuit — Kevin Fowler v. Smith County, Precinct 4 Constable Josh Joplin, constable deputies Michael Pehl, Terry Brunk and Scott Smith — Kevin Fowler claimed the constable’s office violated his rights when he was charged and arrested for theft of service.
On Wednesday, federal Judge Robert W. Schroeder III dismissed the case without prejudice, which means it’s not dismissed permanently.
Schroeder’s order states that Fowler’s allegations were “thread bare.”
Fowler was originally charged and indicted for an alleged theft of service. Scott Smith, owner of CEM-J Enterprises, reported to the constable’s office that Fowler refused to pay him for dirt work his company performed.
After a warrant was issued, Fowler turned himself in. He said he spent eight hours in jail with a $20,000 bond and had to undergo drug tests in Tyler and was required to stay in Smith or Van Zandt counties.
He was later allowed to leave the state for work. He claims he lost a potential job and large income and incurred plane travel costs due to drug tests, according to the lawsuit.
Fowler was indicted, but the case was later acquitted on basis that a proper written notice of payment (telegram or certified mail) was not given. His case was expunged as well.
Fowler filed the lawsuit against the constable’s office and Smith on Sept. 23. Motions to dismiss the case were heard Feb. 6, said Robert Davis, the attorney for Smith County.
Davis said that the county argued in court that the lawsuit should be dismissed because there had been probable cause to issue the arrest warrant and a grand jury issued a true-bill indictment in the case.
Davis also argued that Fowler failed to demonstrate that his rights had been violated.
Davis said law enforcement officers have immunity from prosecution of rights violations when a warrant and indictment are obtained in a case.
Joplin said he feels relieved and his office is ready to move past the lawsuit.
“Law enforcement agencies get sued daily, just because you’re sued doesn’t mean you’re wrong,” he said. “This was a hill we had to overcome.”
In the order, Schroeder said the court does not presume Fowler’s legal conclusions as true.
Schroeder said Fowler didn’t sufficiently support his claims of constitutional rights violations and malicious prosecution under Texas law.
In the court document, the judge ruled that because Fowler was arrested through a warrant and lacks facts to support his claims of an unfair investigation, Fowler cannot claim false imprisonment or malicious prosecution.
Fowler can amend his complaint within 30 days.
Fowler’s attorney, Stefanie Klein, said she plans to file additional facts for their plea by early March.
“He’s giving us a chance to amend to plead more fully, and we intend to do so,” Klein said.
2020 Republican Primary Election
The lawsuit also was brought up when the political action committee, Grassroots America — We the People endorsed candidate Curtis Wulf on Jan. 17.
Joplin, who is seeking his second term, is running against Wulf, former Precinct 4 Constable John G. Smith and retired Texas Department of Public Safety trooper Charles Garrett in the March 3 Republican primary. There are no Democratic challengers.
In the endorsement, GAWTP said Wulf would bring experience and maturity to the office, especially concerning Fowler’s lawsuit with the allegations of constitutional violations.
“It is bad enough that the civil federal lawsuit may well cost Smith County taxpayers plenty, but Constitutional rights are sacred,” the endorsement stated.
Grassroots noted Fowler’s acquittal and expungement.
Joplin said he doesn’t expect the endorsement to change, but believes the group should retract the comments about the lawsuit.
“They ran with it. A lot of times (lawsuits) get dismissed,” Joplin said. “Until a ruling, people shouldn’t jump to conclusions when they read something.”
Precinct 4 Constable’s Office does every investigation with assistance from the Smith County District Attorney’s Office. Constable deputies Pehl and Brunk are experienced and tenured officers in criminal and civil law, Joplin said.
“I do feel that they (Grassroots) attempted to tarnish my reputation a bit,” he said.
Grassroots America - We the People Executive Director JoAnn Fleming said the dismissal without prejudice does not change the endorsement of Wulf since the lawsuit was not the group's only concern regarding Joplin.
"We spoke with several respected law enforcement officers and community leaders who expressed concerns about the way the current officeholder operates. That being said, our endorsement is for Mr. Curtis Wulf and not simply against the incumbent," Fleming said.
She also cited Wulf's experience in law enforcement.
"We believe Curtis Wulf’s maturity, temperament, professionalism, law enforcement experience, and strong work ethic will serve the citizens of Smith County Constable Precinct 4 well," Fleming said. "That is why we support him in this race."