text:
    UNITED STATES of America, Plaintiff-Appellee, v. Steve HODGE, Defendant-Appellant.
    No. 73-3603
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 21, 1974.
    Charles O. Baird, Jr., Atlanta, Ga., for defendant-appellant.
    John W. Stokes, U. S. Atty., E. Ray Taylor, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

       Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Steve Hodge with several others was indicted by a grand jury in February 1973 for conspiracy under Title 18 U.S. C. Sec. 371 to violate Title 18 Sec. 2314, (Count One) and for two substantive counts of violating Sec. 2314 by causing falsely made and forged money orders to be transported in interstate commerce. Paragraph two of Count One, in describing the operation of the conspiracy stated that certain money orders of the Jacob Banking Company had been stolen. The scrivener of the indictment intended to describe the money orders as counterfeit, but a mistake was made in copying language from a similar indictment form also applicable to Sec. 2314. When this error came to light the prosecutor decided he needed a superseding indictment. The appellant' was tried, convicted and sentenced below upon the second indictment, the conviction being as to Count One, the conspiracy count, only. The grand jury which returned the original indictment was by this time discharged, and the matter was taken to a second grand jury, which returned a second indictment August 7, 1973. This time paragraph two of Count One alleged that the Jacob Banking Company money orders were counterfeited, but in other material respects the two indictments were identical.

By appropriate motion appellant raised below, and raises here, as the sole ground of his appeal, the constitutionality of the procedure attendant upon the return of the second indictment. He asserts that no witnesses testified before the second grand jury, but rather that the prosecutor merely explained to the jury members the nature of the problem with the first indictment, related in summary unsworn hearsay form, the testimony before the first grand jury, and thereupon secured the second indictment. The government brief on appeal does not deny that this was so. Impliedly the claim is admitted.

An indictment may rest upon hearsay, Costello v. United States, 1956, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397, and we see no problem if government agents did in fact give sworn testimony before the second grand jury as to what they and other witnesses had stated to the first grand jury. But informal unsworn hearsay from the mouth of the prosecutor only is something else altogether. This, we think, is interdicted by the Fifth Amendment. Cf. United States v. Dunham Concrete Products, Inc., 5 Cir. 1973, 475 F.2d 1241, 1248-1249, citing United States v. Tane, 2 Cir. 1964, 329 F.2d 848, 853-854 (indictment must be based on competent evidence)

Because the briefs and record in this case leave us uncertain as to the actual procedure followed before the subsequent grand jury which returned the second and superseding indictment against the appellant, we employ here the limited remand procedure used by the Supreme Court in Alderman v. United States, 1969, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176. Cf. United States v. DeVoe, 5 Cir. 1974, 489 F.2d 158. We direct the trial judge to conduct an evidentiary hearing for the purpose of determining whether the grand jury which returned the second indictment against appellant received sworn testimony from someone other than the prosecutor. The hearing should be conducted and its results certified to this Court within ninety days from the date of this opinion. Our determination as to whether finally to affirm the judgment below or to reverse for dismissal of the indictment will follow such certification. Jurisdiction of this appeal is retained in this Court during the limited remand for the stated purpose.

Remanded with instructions.

      . The government brief, page 6, states: “In light of the purpose and explanation given to the grand jury, the presentation of an FBI agent to recap the same evidence as summarized by the United States Attorney would seem to be only a technical distinction.” The inference is that no one other than the prosecutor appeared before the second grand jury. However, a comment inconsistent with this was made by the Assistant United States Attorney during the pre-trial inquiry into the issue. This statement by the attorney seems to say that agents were before the second grand jury:
      It was the second grand jury that had been empaneled a month or two before that, but all the evidence gone through again; didn’t have the people come in, tut the agents and I explained the circumstances and told them there were a couple of typographical errors we wanted to correct, and this is basically what we did. (Record on Appeal, Yol. II, p. 14, line 24) (Emphasis added).

      . Again, the cases seem to permit an informal procedure in securing a new indictment, simply corrective in nature, before the same grand jury that has already heard sworn testimony as to the facts relied upon. United States v. James, 5 Cir. 1961, 290 F.2d 866, 869, cert. denied, 368 U.S. 834, 82 S.Ct. 60, 7 L.Ed.2d 36, and cases cited, 290 F.2d at page 869.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Betty BRELAND et al., Plaintiffs-Appellants, v. Edgar RICE, Defendant-Appellee.
    No. 74-1545
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 24, 1974.
    Rehearing Denied July 23, 1974.
    L. L. Scott, Marshall, Tex., for plaintiffs-appellants.
    J. R. Cornelius, Sr., Jefferson, Tex., for defendant-appellee.
    Before COLEMAN, DYER and RONEY, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

This suit sought a federal court stay of the execution of a judgment rendered by a Texas state court. In essence, the petition alleges that Vernon’s Ann.Civ. Statute, Article 4619, § l, and the Texas .Common Law designating the husband as the only necessary party in suits involving disputes with third parties as to lands held in the community estate,' violate both the Equal Protection and the Due Process clauses of the Fourteenth Amendment.

The state court judgment was rendered in a trespass to try title suit.

After the initial trial on the merits and an appeal, the wives of the original defendants (plaintiffs-appellants here) filed an “Amended Motion for Bill of Review”. It was argued that the judgment was void because the wives were named as grantees, along with their husbands, in the purported deeds upon which they claimed title but had not been named defendants to the original proceedings. By this procedure, the wives, although belatedly, joined the litigation and submitted their claims to the adjudication of the state court.

In response Rice, et al., filed a “Plea in Abatement and Application for Injunction”. The Texas District Court sustained the plea and granted the application for the injunction, enjoining the wives from interfering with respondents’ use and possession of the land in question. This action was bottomed upon Article 4619, supra, under which, as conservator of the community estate, the husband is considered the only necessary party in suits involving claims to non-homestead real property. Upon appeal this reasoning was upheld by the Court of Civil Appeals at Texarkana.

Undaunted, the wives on January 19, 1973, filed in the state district court a “Petition to Set Aside Judgment”, alleging the same grounds theretofore asserted in the “Bill for Review”. Again Rice filed a plea in bar, and again the Court sustained it. On appeal, the wives again lost. Subsequently, review was sought and denied in the Texas Supreme Court.

On December 14, 1973, the wives filed a petition in the United States District Court for the Eastern District of Texas seeking to stay the execution of the Marion County, Texas, District Court judgment. They contend that Article 4619, supra, and the specified common law, is unconstitutional as a denial of equal protection and due process as guaranteed by the Fourteenth Amendment and that they (the wives) as alleged purchasers in fee should have been named as party defendants in addition to their husbands; that the designation of the husband as the only necessary party is discrimination based upon sex and is, thereby, in violation of the Equal Protection Clause; and since they are necessary parties, execution of a judgment will deny them of their property without due process of law.

In response to the federal court action, Rice filed a motion to dismiss under Fed.R.Civ.P. 12, raising res adjudicata, lack of jurisdiction, and failure to state a claim upon which relief could be granted. The motion was granted and the wives now pursue their first appeal in the federal system.

Although none of the parties cite the cases, this appeal is clearly governed by our decisions in Brown v. Chastain, 416 F.2d 1012 (5 Cir. 1969), cert. denied, 397 U.S. 951, 90 S.Ct. 976, 25 L.Ed.2d 134; Paul v. Dade County, Florida, 5 Cir., 419 F.2d 10 (1969), cert. denied, 397 U.S. 1065, 90 S.Ct. 1504, 25 L.Ed.2d 686; and Carter v. City of Fort Worth, 5 Cir., 456 F.2d 572 (1972), cert. denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130. Having fully and repeatedly litigated their contentions in the state courts, they cannot now begin anew in the federal courts.

Affirmed.

      . Article 4619. Community Property. § 1: Sec. 1. All property acquired by either the husband or wife during marriage, except that which is the separate property of either, shall be deemed the common property of the husband and wife; and all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved. During coverture the common property of the husband and wife may be disposed of by the husband only; provided however, if the husband shall have disappeared and his whereabouts shall have been and remain unknown to his wife continuously for more than twelve months, the wife shall after such twelve month period and until the husband returns to her and the affidavit hereinafter provided for is made and filed for record, have full control, management and disposition of the community property, and shall have the same powers with reference thereto as are conferred by law upon the husband, and her acts shall be "as those of a feme sole.

      . Breland v. Rice, Tex.Civ.App., 1971, 477 S.W.2d 906, n. r. e.

      . Apparently, the caption of the plea was erroneously entitled since the averment in the petition centered upon the issue of res judicata. As for the injunction, Rice sought to forcibly remove the petitioners from the premises since after numerous efforts the sheriff had been unable to remove them in a non-violent manner.


text:
    James I. GOULDMAN, Plaintiff-Appellant, v. SOUTHERN STEVEDORING COMPANY OF TEXAS, INC., Defendant-Appellee.
    No. 73-3292
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 21, 1974.
    Doris S. Des Champs, Houston, Tex., R. C. Edwins, Baton Rouge, La., for plaintiff-appellant.
    Theodore Goller, Houston, Tex., for defendant-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant, a seaman, brought this action against Southern Stevedoring Company (Southern) to recover damages for personal injuries sustained on board the SS Del Sol. He contended that his injuries resulted from the negligence of Southern’s employees in loading bales of cotton on board the vessel. Specificially, Gouldman alleged that while properly attempting to repair portable cluster lights supplied by the ship for the use of longshoremen working in the vessel’s holds at night, he was struck by cotton which Southern’s crane operator sought to lower in the No. 3 starboard tank of the ship. The district court exonerated Southern of negligence in any respect and found in fact that Gouldman’s injuries were caused solely and proximately by his own negligence. On appeal he raises three contentions, the thrust of which collectively challenge the sufficiency of. the evidence to support the judgment. We affirm.

At trial, Gouldman had testified that he was struck by a load of cotton while engaged at a location on the ship where he should have been working — at the aft, port corner of the No. 3 starboard tank. His own witness, however, Mr. Sanderson, testified that while he did not see the actual accident, he did observe that subsequent thereto the load of cotton was situated between the center and starboard tanks, a place where no one was supposed to be, and not at the location at which Gouldman claimed he was working. And Southern’s crane operator, Mr. Hessler, testified that he was in the process of moving the cotton load from the center to the starboard tank when in attempting to avoid colliding with it, Gouldman stumbled and fell. There being nothing in the record tó preclude the trial judge from believing the testimony of Sanderson and Hessler, his fact findings cannot be deemed clearly erroneous. Accordingly, the judgment of the district court is affirmed.


text:
    Henry Keith STERZING, Plaintiff-Appellant, v. FORT BEND INDEPENDENT SCHOOL DISTRICT, FORT BEND, TEXAS, et al., Defendants-Appellees, and Roy Kelly, Individually, Defendant-Appellee.
    No. 72-3180.
    United States Court of Appeals, Fifth Circuit.
    June 24, 1974.
    Leonard J. Schwartz, American Civ. Liberties Union of Ohio Foundation, Columbus, Ohio, George A. Rigely, San Antonio, Tex., Darryl J. Anderson, Michael H. Gottesman, George H. Cohen, Washington, D. C., Clyde Stanley Boose, Houston, Tex., Jeremiah S. Gutman, New York City, for plaintiff-appellant.
    John L. Jeffers, Jr., John F. Heard, Houston, Tex., for Fort Bend and others.
    Logene L. Foster, Sugarland, Tex., for Kelly.
    Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   PER CURIAM:

In a very detailed opinion the District Court found that Appellant Sterzing’s First and Fourteenth Amendment rights were violated when he was discharged from his position as a school teacher with the Fort Bend Independent School District. As remedy the Court ordered the school district to expunge from its records all references to Sterzing’s discharge and awarded him $20,-000. 00.in general damages and $5,000.00 for attorney’s fees. The Court denied Sterzing’s request for reinstatement as a teacher with the Fort Bend Independent School District on the grounds that his reinstatement would only revive antagonisms and that the award of monetary damages compensated Sterzing for his expectancy of reemployment. Sterzing brought this appeal solely to challenge the Court’s denial of his request for reinstatement. The school district defendants filed notice of cross-appeal but subsequently abandoned their appeal. Since we find that the District Judge based his denial of reinstatement on an incorrect legal standard we vacate the judgment and remand for reconsideration of the issue of remedy.

The District Judge based his holding that Sterzing’s First Amendment rights were violated on the ground that the school board improperly restricted Sterzing’s right to speak and express his opinion in the classroom. In declining to grant reinstatement on the basis that it would be too antagonistic, the Court used an impermissible ground. On the hypothesis of a violation of his First and Fourteenth Amendment rights —an hypothesis which is unchallenged in view of the dismissal of the cross-appeal — the Court could not deny relief on such basis. Enforcement of constitutional rights frequently has disturbing consequences. Relief is not restricted to that which will be pleasing and free of irritation.

But the Court also made clear in its opinion that an equally significant basis for its denial of reinstatement was the award of $20,000.00 in lieu of several years salary. Of course appellant cannot have the right to a consideration of reinstatement on proper grounds without allowing the District Court to weigh all of the factors leading to the remedy ultimately chosen. Consequently the whole judgment, insofar as it prescribed a remedy, must be vacated. The District Court should fully reconsider its remedy in light of our ruling that the basis stated was impermissible. We express no view on what that remedy should be.

Vacated and remanded.

      . Sterzing v. Fort Bend Independent School District, S.D.Tex., 1972, 376 F.Supp. 657.

      . After exhaustion of his administrative remedies, Sterzing filed this civil rights action basing jurisdiction on 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343(3) seeking both monetary damages and the equitable relief of reinstatement. His complaint named the Fort Bend Independent School District and all members of the board of trustees and the superintendent of the school district.
      Since the Fort Bend Independent School District, “under Texas law, is in the nature of a municipality,” Harkless v. Sweeny Independent School District, 5 Cir., 1970, 427 F.2d 319, 321, jurisdiction does not exist in a § 1983 civil rights action against the school district either for monetary damages or equitable relief under the recent case of City of Kenosha v. Bruno, 1973, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109. Of course the appropriate named school officials are “persons” within § 1983 and there are no jurisdictional problems concerning these named party defendants. United Farm Workers of Florida Housing Propject, Inc. v. City of Delray Beach, 5 Cir., 1974, 493 F.2d 799.

      . Due to the defendants’ abandonment of their cross-appeal, we need not determine nor do we intimate how we would rule on the District Court’s basic finding of constitutional violation. We are confined solely to the issue of remedy.


author: INGRAHAM, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ANVIL PRODUCTS, INC., Respondent.
    No. 73-3527.
    United States Court of Appeals, Fifth Circuit.
    June 26, 1974.
    Elliott Moore, Deputy Assoc. Gen. Counsel, Robert A. Giannasi, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., W. Edwin Youngblood, Director, Region 16, N. L. R. B., Fort Worth, Tex., for petitioner.
    J. D. McLaughlin, Paris, Tex., for respondent.
    Before BELL, SIMPSON and INGRAHAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

The National Labor Relations Board is here pursuant to § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), seeking to enforce its order, 205 N.L.R.B. No. 80, against Anvil Products, Inc. We find substantial evidence in the record to support the board’s conclusion that the company violated § 8(a)(3) and (1) of the Act, 29 U.S.C. § 158(a)(3) and (1), by refusing to reinstate one economic striker and by refusing to restore pre-strike seniority to two reinstated economic strikers. With regard to the § 8(a)(5) violation, 29 U.S.C. § 158(a)(5), arising from the company’s refusal to bargain with the union on the basis that it no longer represented a majority of the unit employees, the record is inadequate to support the board’s issuance of a bargaining order; we, therefore, remand this portion of the case for additional proceedings before the board.

I.

The facts underlying this dispute are not complicated. The relationship between the union and the company began on- May 28, 1971, when the union was certified, following a board supervised election, as the representative of the company’s production and maintenance employees. Shortly thereafter negotiations began for the first contract. Although negotiations continued until January 24, 1972, they proved fruitless, and on this date the union voted to strike in support of its economic demands. The strike lasted until February 3rd when the union notified the company that the strike had ended and that all striking employees would return to work unconditionally on February 7th.

The § 8(a)(3) violations arise from the company’s treatment of three strikers. Two employees, Craver and Stephens, were replaced during the strike. Both were rehired on February 15th as new employees, meaning that they lost their pre-strike seniority. The third employee, Tolbert, was also replaced during the strike, but he has not been reinstated, the company arguing that it has no duty to offer to rehire Tolbert because he quit voluntarily on February 3rd. Tolbert’s version of the story was that he did not quit, but was terminated by Schurr, the company’s general manager, when he went to the plant to inquire about reinstatement. Crediting Tolbert, the administrative law judge ordered that he be reinstated and that the company must restore pre-strike seniority to Craver and Stephens.

After the end of the strike and the return to work of the striking employees, another bargaining session was held on February 11, but the parties suspended negotiations after this meeting. Nothing significant occurred until the latter part of April when employee Louise Boulton began circulating a petition in an effort to have the union decertified. The company neither instigated nor participated in the circulation of the petition, but Schurr knew that such a move was being made and was subsequently told by Boulton that a substantial number of employees had signed the petition. This petition, seeking a decertification election, was filed with the board’s regional office on May 30. Before a hearing could be .held on this petition the union filed unfair labor practice charges founded on the company’s treatment of the strikers. The charges were filed on June 6, the same day that the union requested another bargaining session with the company. Believing that the union no longer represented a majority of the unit employees, the company refused to resume negotiations. The union thereafter amended its unfair labor practice charges to include this refusal to bargain. In line with the board’s blocking charge practice, the decertification election petition was dismissed without consideration as a result of the pending unfair labor practice charges.

The administrative law judge found that the company had violated § 8(a)(5) by refusing to bargain and withdrawing recognition from the union on June 14. The judge ruled that the company failed to rebut the presumption of the union’s continuing majority status and that the company’s independent unfair labor practices, the discrimination against the three strikers, precluded a finding that the company’s withdrawal of recognition was based on a good faith doubt of the union’s majority status. To remedy the § 8(a)(5) violation the company was ordered to bargain with the union on request.

The board adopted the administrative law judge’s decision and order, but the basis for its action differed in one significant respect, which will be discussed in part III. Board member Kennedy dissented from the board’s decision to affirm the § 8(a) (5) violation.

II.

There is substantial evidence on the record as a whole, Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), to support the board’s conclusion that the company violated § 8(a)(3) and (1) of the Act by depriving Craver and Stephens of their pre-strike seniority and by not offering reinstatement to Tolbert. See C. H. Guenther & Son, Inc. v. NLRB, 427 F.2d 983, 985 (5th Cir., 1970); American Machinery Corp. v. NLRB, 424 F.2d 1321, 1324-1328 (5th Cir. 1970); Laidlaw Corp. v. NLRB, 414 F.2d 99, 103-105 (7th Cir., 1969), cert. den. 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100. See also NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); NLRB v. Great Dane Trailers, 388 U.S. 26, 34, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967).

III.

The most troublesome issue in this case concerns the board’s imposition of a bargaining order to remedy the company’s alleged violation of § 8(a)(5) when it refused to bargain with the union on June 14. Before the administrative law judge the company defended its refusal to bargain by arguing that by this date the union, in fact, no longer represented a majority and that it had at least a good faith doubt about the union’s majority status. The judge rejected both contentions, ruling that the company failed to prove the former and that the § 8(a)(3) violations precluded the company from having a good faith doubt. Although the board agreed that the company violated § 8(a)(5) and adopted the administrative law judge’s proposed order, the board’s conclusion rests on a different basis. The board reasoned as follows:

“In adopting his conclusion that Respondent violated Sec. 8(a)(5), we do not rely on the finding of the Administrative Law Judge that Respondent’s 8(a)(3) violations precluded a finding of a ‘good-faith doubt’ of majority status. Rather, we rely upon the fact that such serious violations of the Act tend to produce disaffections from a union and thus remove as a lawful basis for an employer's withdrawal [of] recognition the existence of a decertification petition or any evidence of loss of union support which, in other circumstances, might be considered as providing objective considerations demonstrating a free and voluntary choice on the part of the employees to withdraw their support for a union.”

The problem with this conclusion is that it is not factually related to this particular case. No consideration was given by either the administrative law judge or the board to the extensiveness or actual effect of the § 8(a)(3) violations on the majority status of the union. See Fremont Newspapers, Inc. v. NLRB, 436 F. 2d 665, 672 (8th Cir., 1970). See generally NLRB v. Gissel Packing Co., 395 U. S. 575, 615, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1968).

It is undisputed that the decertification petition filed on May 30, 1972, prior to the union’s filing of any unfair labor practice charges, was the product of employee efforts. The company did not instigate the petition, aid in its circulation, or encourage, by threats or otherwise, its employees to sign the petition. No other unfair labor practices are present in this case, the record clearly indicating that the § 8(a)(3) violations were not part of a series of actions designed or calculated to dissipate or undermine the union’s strength. Moreover, these violations were not flagrant or egregious in themselves, and they did not directly affect a large segment of the bargaining unit. See, e. g., NLRB v. Arrow Specialities, Inc., 437 F.2d 522 (8th Cir., 1971); Flambeau Plastics Corp. v. NLRB, 401 F.2d 128 (7th Cir., 1968), cert. den. 393 U.S. 1019, 89 S.Ct. 625, 21 L.Ed.2d 563 (1969). There is not even a hint that the lapse in contract negotiations between the end of the strike in February and the demand for more bargaining on June 6 was attributable to the company’s actions, attitude or, more specifically, to its treatment of the returning strikers. The move to obtain a decertification election began in the latter part of April, over two months after the end of the strike, and this activity did not occur in the shadow of questionable employer conduct. It was in this relatively calm labor environment that the decertification petition was circulated and signed by enough employees to approach a majority of the bargaining unit.

Against this factual background and in the absence of any findings by the administrative law judge, the board said, in effect, that nothing the employer could establish would overcome the presumed impact of its unfair labor practices. To impose a bargaining order in these circumstances on the basis of this facile analysis is unwarranted. Compare Allied Industrial Workers, Local 289 v. NLRB, 155 U.S.App.D.C. 112, 476 F.2d 868, 882 (1973); Hinson v. NLRB, 428 F.2d 133, 136 (8th Cir., 1970) , with Fremont Newspapers, Inc. v. NLRB, supra, 436 F.2d at 673; New Alaska Dev. Corp. v. NLRB, 441 F.2d 491, 494 (7th Cir., 1971). See also NLRB v. Gibson Products, Inc., 494 F.2d 762 (5th Cir., 1974).

We recognize that courts have, in deference to the board’s expertise, enforced bargaining orders where the record has been silent concerning “the actual impact of the employer’s unfair labor practices.” Arbie Mineral Feed Co. v. NLRB, 438 F.2d 940, 945 (8th Cir., 1971) , citing NLRB v. Noll Motors, Inc., 433 F.2d 863 (8th Cir., 1970); NLRB v. Gerbes Supermarkets, Inc., 436 F.2d 19 (8th Cir., 1971). Both Noll Motors and Gerbes Supermarkets, however, involve unfair labor practices significantly different from the limited § 8(a)(3) violations present in the case at bar, and these cases furnish no support for enforcing the bargaining order here at issue. In Noll Motors, for example, the court said: “Clearly, the president’s statements, the interrogations and the manager’s statements considered as a whole justified the Board’s findings of coercion and restraint. The statements went beyond prediction or expression of opinion, and violated Section 8(a)(1) of the Act.” 433 F.2d at 855. The court also found substantial evidence to support the board’s finding that Noll “refused in bad faith to recognize and bargain with the Union” and concluded that the company engaged in a series of unfair labor practices. Id. at 856. It is apparent, even from this brief discussion, that the board’s imposition and the court’s enforcement of the bargaining order in Noll Motors rested on record findings not at all analogous to those in the case at bar.

We agree with the Eighth Circuit’s statement, made in a similar factual setting, that “in assessing the appropriateness of a bargaining order in the individual case, we must look to the nature of the employer’s independent unfair labor practices and their actual impact upon the majority status of the union and the election process.” Fremont Newspapers, Inc. v. NLRB, supra, 436 F.2d at 673. See Daisy’s Originals, Inc. v. NLRB, 468 F.2d 493 (5th Cir., 1972); Arbie Mineral Feed Co. v. NLRB, supra. The Fremont court refused to enforce a bargaining order because “in light of the objective evidence of record, it is not reasonably possible to find that the independent unfair labor practices here had any effect upon the Union majority or the potential decertification proceedings.” Id. at 673.

The record in the case at bar leaves us with no choice but to decline to enforce the bargaining order. There is simply no factual basis from which to draw any conclusion concerning the impact of the company’s § 8(a)(3) violations on the majority status of the union or on a potential decertification election. Even if a factual inquiry into the actual effect of a company’s unfair labor practices is not always necessary in order to justify enforcing a bargaining order, our previous discussion illustrates that this is not such a case.

Although we decline to enforce the bargaining order, that does not end the matter because in the cases in which bargaining orders have been denied enforcement the courts have been able to conclude on the basis of a well developed record that the unfair labor practices “produced little or no impact upon the employees’ allegiance to the union.” Arbie Mineral Feed Co. v. NLRB, supra, 438 F.2d at 945; Daisy’s Originals, Inc. v. NLRB, supra; Fremont Newspapers, Inc. v. NLRB, supra. See also New Alaska Dev. Corp. v. NLRB, supra. We are unable to make this determination on the basis of the record in this case. Moreover, we do not disagree with the general proposition that the type of unfair labor practices involved here could “tend to produce disaffections from a union.” The question for the board is whether they did in the circumstances of this case. It is therefore necessary that we remand this aspect of the case to the board for further proceedings consistent with this opinion.

Enforced in part and remanded in part.

      . Local Lodge 1923, International Ass’n of Machinists & Aerospace Workers, AFL-CIO.

      . 29 U.S.C. § 159(c)(1) (A) (ii).

      . The basic principles are well established. During the year following a union’s certification, its majority status is, absent special circumstances, irrebuttably presumed to exist. NLRB v. Gulfmont Hotel Co., 362 F.2d 588, 589 (5th Cir., 1966) see NLRB v. Burns Security Services, 406 U.S. 272, 279, n. 3, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972). After expiration of the certification year, the presumption of majority status continues, but may be rebutted by a showing that when the employer refused to bargain there was a serious doubt as to the union’s continued majority status, Stoner Rubber Co., 123 N.L.R.B. 1440; NLRB v. Little Rock Down towner, Inc., 414 F.2d 1084, 1091 (8th Cir., 1969), or that the union, in fact, no longer represented a majority of the unit employees. Allied Industrial Workers, Local 289 v. NLRB, 155 U.S.App.D.C. 112, 476 F. 2d 868, 881 (1973).

      . There is substantial evidence in the record to support this conclusion.

      . In his vigorous dissent from the board’s conclusion regarding the § 8(a)(5) violation member Kennedy looked to the facts and concluded: “There is no reasonable basis for inferring either that the discriminatees or other employees were induced to withdraw their support from the union by the limited unfair labor practices found by the majority. . . . I do not minimize the violations found by my colleagues, but the Board has a responsibility to assess realistically the gravity of the unfair labor practices.”

      . An objective reading of the record reveals a noticeable absence of the sort of anti-union animus which seems generally to underlie labor disputes of this character. See, e. g., NLRB v. Sky Wolf Sales, 470 F.2d 827 (9th Cir., 1972); NLRB v. Frick Co., 423 F.2d 1327 (3rd Cir., 1970).

      . See NLRB v. Gissel Packing Co., 395 U.S. 575, 612, n. 32, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).


author: RIVES, Circuit Judge:

text:
    Raymond D. WOMER, Plaintiff-Appellant, v. Robert HAMPTON et al., Defendants-Appellees.
    No. 73-1494.
    United States Court of Appeals, Fifth Circuit.
    June 17, 1974.
    Rehearing Denied July 12, 1974.

      Sam O. Buckley, New Orleans, La., for plaintiff-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Michaelle F. Pitard, Mary Williams Cazalas, Asst. U. S. Attys., New Orleans, La., for defendants-appellees.
    Before RIVES, WISDOM and MORGAN, Circuit Judges.
   RIVES, Circuit Judge:

Raymond D. Womer, Jr. brought suit in the district court under 5 U.S.C. § 701 et seq., and 5 U.S.C. § 7512 against the United States and the members of the U.S. Civil Service Commission for wrongful removal from his civilian job with the Department of the Army. Womer sought a judgment setting aside his removal and reinstating him to his position with full rights from the date of removal. The district court granted summary judgment to the defendantsappellees. We affirm.

I.

Womer was employed by the United States Army Corps of Engineers in the position of Supervisory Construction Representative, GS-10. On November 10, 1969, the Army Engineer District in New Orleans conducted an administrative inquiry to which Womer was summoned. In addition to Womer, six agency officials were present at the inquiry. The presiding official opened thé proceedings by announcing:

“Mr. Womer, good morning. This is an administrative hearing that we have here this morning, and the purpose of this hearing is strictly an administrative inquiry that we care to make at this time. We are interested in looking into certain allegations of impropriety and certain allegations of irregularities which would have occurred or are alleged to have occurred in the New Orleans Area Office. These allegations go back several years and certain of these allegations of impropriety and irregularities concern you. So, the purpose of bringing you in here is to give you an opportunity to talk to the members of the group here — I believe you know all of them — and to explain your position fully to them as you may care to do.”

(P. 1, Proceedings of November 20, 1969.) The presiding official then informed Womer that the irregularities which had been alleged were serious enough to warrant the dismissal of a government employee, “specifically serious enough to warrant your dismissal.” Womer was further told that it was alleged that he had been performing work for pay for government contractors on contracts which were under his supervision as the Supervisory Inspector for the New Orleans Area Office. When asked if he understood what had been said, Womer replied, “Yes, sir.” The presiding official then asked, “Would you care to make any comment in that regards?” Womer replied, “I don’t know what you’re talking about.” In response to two further questions, Womer denied working for any government contractors, and denied receiving payment for any such work.

The presiding official at this point showed Womer photostatic copies of three checks in the amounts of $1225, $1275, and $300. Each of these checks was made out to Womer by a government contractor, and endorsed by Womer or his wife. Womer said, “Can I explain?” In over seventy pages of transcribed conversation, Womer explained the circumstances whereby he received these checks, and responded to questions put to him by members of the panel. Briefly, Womer said that the checks for $1225 and $1275 were repayment of his investment in a partnership named Wall-co. Womer stated that the name Wallco “represents Womer, [James] Arnoult, [C.C.] Louque, and [General Russell] LeBlanc.” (Rec. of Proc. 4.) “We drew up a company with the purpose of forming a concrete company, concrete batching company, more or less a portable company, to put material on the batture where the various different concrete slope paving jobs would be along the river, and we each put in a total of $2,500.” (R. 3-4). Womer claimed that the $300 check represented payment for some work his son-in-law had performed for Arnoult and Louque Construction Company. In response to a question from the presiding officer later in the proceeding, Womer denied ever asking an employee to falsify a daily log to show that he was present at a site on a day that he had not been there.

Under questioning, Womer admitted that he was aware of one instance in which Wallco had supplied concrete to a government job under his supervision. One official asked, “At that point, didn’t you realize that you were, in effect, double-dealing ?” Womer replied, “Yes, sir.” (Rec. 56.) Womer also admitted that after he became involved in Wallco, his partners in Wallco, who were engaged in other government contract work through Arnoult and Louque Construction Company, “began to cut corners,” because “they figured they had me over a barrel.” (Rec. 31.) Although Womer insisted that he did not feel obligated to them, he conceded that he felt they had a weapon over him. (Rec. 31.) Soon after this concession, the following exchange occurred with regard to Womer’s interest-in Wallco:

“COL. ELDER [Agency official]: Well, didn’t you feel this was kind of an unusual position for you to have to be in as a Government inspector?
“MR. WOMER: Yes, sir, I did.
“COL. ELDER: Yet, you still did not bring this to anybody’s attention?
“MR. WOMER: No, sir, because I feared I would be right where I am today.
“MR. TOWERS [Agency official]: In other words, you knew you were violating the standards.
“MR. WOMER: Back in 1962 or 63, there wasn’t as much emphasis— there may have been a regulation, I don’t know — but I didn’t pay too much particular attention to the regulation.
“MR. TOWERS: But you signed a certificate back in 62 saying that you had paid attention to it and you were abiding by the regulations and the standards of conduct.
“MR. WOMER: In all probabilities, I did, Mr. Towers. I don’t deny knowing I did wrong. I felt guilty about it, now more than anything else, not just today — the last 3 or 4 years that I have been having my problems with this individual contractor, that dealing with contractors, doing work for contractors, or any phase like that is taboo and I haven’t done any of it since this particular . . . . ”

(Rec. 32-33.)

By letter dated December 2, 1969, the Deputy District Engineer advised Womer that he proposed to effect Womer’s removal from employment because of deviations from ethical standards of conduct. This letter detailed three charges in support of removal: (1) Womer had participated as a partner in a concrete company, and this constituted a serious conflict of interest and a violation of Army Regulation 600-50; (2) Womer had submitted a fraudulent travel voucher; and (3) Womer had performed services for a contractor at the same time and on the same job he was inspecting, in violation of sections 1.3 and 1.12 of AR 600-50.

Womer replied on December 4 to the notice of proposed adverse action. He conceded that he had entered into a partnership known as Wallco, but insisted that he gave no special consideration to Wallco or to his partners in their other government contract work. He denied that he had falsified a travel voucher or that he had personally done any work for a government contractor.

On December 29, 1969, the District Engineer notified Womer that he found that the charges in the December 2 letter were supported by the evidence and warranted Womer’s removal to promote the efficiency of the service. Womer was removed effective January 6, 1970.

Womer appealed to the Civil Service Commission. On May 14, 1970, an Appeals Examiner from the Dallas Regional Board found that the charges of conflict of interest, through participation in Wallco and through either performing or arranging to have performed work for a government contractor, were sufficient to warrant removal in the interest of the efficiency of the service. The Examiner found that there was insufficient evidence to support the charge that Womer had submitted a fraudulent travel voucher. On August 18, 1970, the Board of Appeals and Review of the Civil Service Commission affirmed the Examiner’s decision.

On this appeal, Womer’s primary contentions concern the November 20 proceeding. Womer claims that he did not receive adequate prior notice of this administrative proceeding and of the allegations against him. He further claims that he was not fully advised of his options and of the consequences of his choice at the beginning of the proceeding. Because of these alleged procedural defects, Womer contends that the statements made by him at the proceeding may not be used as evidence to support his removal from his job. Womer contends that if his statements of November 20, and their fruits, are suppressed, there is insufficient evidence to support removal from his job.

II.

We first examine whether Womer was entitled to prior notice of the November 20 proceeding. So far as we can determine, there are no specific statutory or administrative rules prescribing the procedures for a proceeding of the sort conducted on November 20. In the absence of any governing statutes or regulations, we turn immediately to the constitutional question of whether the failure to give Womer advance notice of the proceeding violated procedural due process.

Hannah v. Larche, 1960, 363 U.S. 420, 442, 80 S.Ct. 1502; 1514, 4 L.Ed.2d 1307, provides some general guidelines as to the requirements of due process in administrative proceedings:

“ ‘Due process’ is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. Thus, when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process. On the other hand, when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used. Therefore, as a generalization, it can be said that due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings. Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account . . . . ”

Following the mode of analysis suggested in Hannah v. Larche, we consider the nature of the alleged right. Womer claims a right to advance notice of a proceeding affecting his retention of his job. A majority of the Supreme Court has indicated that a claim of entitlement to a government job in the competitive Civil Services is a property interest requiring the protections of procedural due process. The November 20 proceeding related to and affected the question of whether Womer should be removed from his job as a supervisory inspector. In fact, as Womer suggests, the issue of whether he should be removed from his job was practically resolved by his comments and answers to questions on November 20, for his statements about Wallco constituted an admission of conduct sufficient to justify removal. Womer argues that the panel which interviewed him on November 20 knew or should have known that the proceeding would determine, or have a substantial impact upon, his retention of his job. He urges that due process required the panel to give him advance notice of the proceeding and of the allegations against him.

Adequate notice is essential to due process in many administrative and judicial proceedings. For example, before welfare benefits may be terminated, a recipient must be provided “timely and adequate notice detailing the reasons for a proposed termination.” Goldberg v. Kelly, 1970, 397 U.S. 254, 267-268, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287. A student at a tax-supported college is entitled to notice and a hearing before expulsion. “The notice should contain a statement of the specific charges and ground which, if proven, would justify expulsion under the regulations of the Board of Education.” Dixon v. Alabama State Board of Education, 5 Cir. 1961, 294 F.2d 150, cert. den. 1961, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193. Notice is required by statute for many administrative proceedings. An individual accused of a crime must be given reasonable notice of the specific charges against him. More generally, in a civil case, the Supreme Court has stated that “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Covey v. Town of Somers, 1956, 351 U.S. 141, 146, 76 S.Ct. 724, 727, 100 L.Ed. 1021, quoting Mullane v. Central Hanover Trust Co., 1950, 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865. As indicated by Covey, the primary purposes of notice are to alert affected parties of the pendency of the action, and to give them an opportunity to prepare and present their arguments to the court or administrative body which will adjudicate the matter.

We next examine the nature of the November 20 proceeding. There were allegations of continuing wrongdoing on the part of an employee of the Corps of Engineers. These allegations merited, immediate investigation. In fact, the Corps of Engineers would have been remiss not to have investigated charges that an employee was accepting payments for work on contracts which the employee was supervising. A government agency must maintain high standards of integrity among its employees. Conflicts of interest cannot be allowed or condoned. Equally important, in this case there existed the possibility of danger to the public health and welfare. Womer was an inspector of construction projects related to flood control. It was alleged that he had received money from government contractors. If true, these allegations would put in doubt not only the reliability of Womer’s past reports, but also his willingness or ability to supervise current projects.

At the beginning of the November 20 proceeding, the presiding official announced that the hearing was “strictly an administrative inquiry.” In its brief, the government argues that the proceeding was an “informal investigatory hearing,” “a .full informal discussion.” Womer was not asked to testify under oath, and no technical rules of evidence or procedure were followed. At ■the same time, there were some aspects of the proceeding which appear more elaborate than an “informal discussion.” For example, there were six officials present; there was a “presiding” official ; the presiding official was an attorney; and a recorder took down everything that was said. The government explains that Womer’s supervisor did not conduct the interview because this supervisor was also under investigation. The government also emphasizes that the proceeding was not designed to determine whether Womer should be removed from his job, and that the question of removal was not determined at this proceeding.

Shortly after the proceeding began, the presiding official showed Womer copies of three checks made out to Womer by a government contractor, and apparently endorsed either by Womer or by his wife. When shown these checks, Womer asked if he might explain the circumstances surrounding their issuance. No doubt a primary purpose of the hearing was to confront Womer with these checks and to see what he would say. It is somewhat difficult to think Of an entirely innocent explanation for these checks. However, if Womer had claimed that he had never seen the checks, or if he had given some plausible innocent explanation for them, and if his story had been thought true, the agency could have avoided the necessity of temporarily relieving him of his job, or of issuing formal charges against him.

Finally, we examine the possible burdens which advance notice and other due process requirements might place upon investigatory proceedings of the sort involved in this case. One problem would involve agency efficiency. It would be cumbersome and impractical to require formal notice each time a supervisor wished to question an employee about a job-related matter which might affect job retention. Efficient operation of a government agency would prove difficult under a system where employer-employee relations were formalized to such an extent. Supervisors must be able to question employees freely about work-related matters. It is true that the present case goes somewhat beyond routine informal questioning.

A second problem might involve time. Adequate notice in part implies sufficient time to prepare for a proceeding. Where serious charges about work-related matters arise, an agency should investigate promptly. If dishonesty exists within an agency, the agency should act immediately. An agency’s desire to act quickly, and its need to act quickly in matters involving the public health and welfare, may conflict with the idea of advance notice. An alternative to immediate investigation might be temporary suspension of employees suspected of wrongdoing, and a later investigation. However, such a procedure might stigmatize innocent employees in those cases where the charges prove unfounded. The procedure utilized in the present case gave the employee an opportunity to respond to serious charges before the agency initiated adverse action.

Another problem relates to employee candor. An employee would more likely answer honestly and frankly if he were suddenly confronted with evidence of an apparent wrongdoing. This consideration would have particular force where an employee was suspected of dishonesty. In such a case, an agency might fear that prior notice would allow too much opportunity for the employee to frame an artful but dishonest explanation. In a case where the evidence of wrongdoing and the alleged wrongdoing itself are easily understandable, there is relatively little danger that sudden confrontation will produce such confusion that the employee will be unable to give a coherent explanation of his conduct.

After consideration of the factors discussed, we conclude that due process does not require advance notice before federal supervisory officials may confront a government employee in the competitive Civil Service with allegations of job-related improprieties.

Fewer procedural safeguards are required by the due process clause in hearings which are investigatory rather than adjudicatory or accusatory. In Hannah v. Larche, supra, the Court held that persons whose conduct is under investigation by the United States Commission on Civil Rights are not entitled to such rights as apprisal, confrontation, and cross-examination, in light of the “purely investigative” nature of the Commission’s proceedings, the burden such rights would place on those procedures, and the traditional procedure of investigating agencies in general. The Court noted that “. . . the Commission does not and cannot take any affirmative action which will affect an individual’s legal rights. The only purpose of its [the Commission’s] existence is to find facts which may subsequently be used as the basis for legislative or executive action.” 363 U.S. at 441. In Jenkins v. McKeithen, 1969, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 the Court explicitly reaffirmed Hannah, but held that where a Louisiana Commission established to investigate criminal violations affecting labor-management relations made actual findings of guilt, due process required that the Commission afford a person being investigated the right to confront and cross-examine witnesses against him.

Applying Hannah and Jenkins, the Third Circuit has held that a New Jersey State Commission of Investigation is an investigative body, and that the full panoply of judicial procedures is therefore not required in hearings before the Commission. United States ex rel. Catena v. Elias, 3 Cir. 1972, 465 F.2d 765. Among other things, the New Jersey-statute confers on the Commission the duty and power to conduct investigations in connection with the conduct of public officers and public employees, and of officers and employees of public corporations and authorities. Also, at the direction of the Governor or by resolution of the legislature, the Commission has the duty to conduct investigations concerning the removal of public officers, and the management or affairs of state agencies.

The November 20 proceeding was primarily investigative in nature. The proceeding was not a final agency determination, or adjudication, on whether Womer should be removed from his job. The question of removal was not decided on November 20. So far as the record reveals, the panel of agency officials also did not make any findings as to whether Womer was guilty of misconduct. The apparent sole purpose of the panel was to discover the facts, and to offer Womer an opportunity to respond to certain allegations.

The investigatory nature of the proceeding, in combination with a number of other factors, convinces us that Womer was not entitled to advance notice of the November 20 proceeding.

A factor which weighs heavily against Womer’s claim is the nonfinality of the November 20 proceeding. On December 2, the Deputy District Engineer informed Womer by letter that he proposed to effect Womer’s removal, and detailed the specific charges against him. The letter stated in part:

“5. You also have the right to reply to this notice of proposed adverse action personally, by appointment, and in writing within 10 working days after receipt. You may also furnish affidavits and witnesses in support thereof .... Full consideration will be given to a reply before final decision is made. As soon as possible after your answer is received, or after expiration of the 10 working day limit, if you do not answer, a written decision will be issued to you.”

Thus, Womer had an opportunity to prepare his case and to present evidence and arguments, prior to the final agency decision on his removal. A primary purpose of notice is to provide a party an opportunity to prepare his objections and to present them to the tribunal before a final decision is made. In this case, Womer received notice of the charges against him on December 2 and replied to them in a letter on December 4. In a letter dated December 29, the District Engineer stated that he had given careful consideration to the information contained in Womer’s letter, but had determined that the evidence supported the charges in the December 2 letter and warranted Womer’s removal. From this, we conclude that Womer received notice, and had an opportunity to present his case, before the agency made a final decision.

A second consideration weighing against Womer’s claim is that the November 20 proceeding was essentially noncriminal in nature. Proceedings which are a part of the process of guilt determination or criminal prosecution demand more rigorous procedural protections than are necessary in noncriminal proceedings. The November 20 proceeding was concerned not with culpability under the criminal law, but with whether Womer had engaged in certain conduct which would draw in question his fitness and ability to continue to serve as a supervisory inspector. In fact, Womer’s statements at the November 20 proceeding, and their fruits, could not have been used against him in a subsequent criminal prosecution, for the following reason: At the beginning of the November 20 proceeding, the presiding official remarked that the allegations of irregularities “are serious enough to warrant the dismissal of a government employee, specifically serious enough to warrant your dismissal.” Womer could reasonably have construed this statement as a threat of removal from office if he failed to comment on the allegations and to rebut the allegations in some manner. In Garrity v. New Jersey, 1967, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562, the Supreme Court held that “the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.” The protection of the individual under the Fifth Amendment, which is applicable in this case, is no less than that stated in Garrity. Our examination of the record indicates that Womer’s comments were coerced by an implied threat that he would be dismissed if he did not reply in a satisfactory manner to the allegations which had been made.

Another consideration against requiring advance notice in this ease involves the public interest. There is an extremely strong public interest favoring immediate investigation of allegations of misconduct on the part of public servants in the performance of their duties. Under all the circumstances of this case, including the possible burdens associated with giving advance notice, this public interest favors allowing the government agency to confront the employee with evidence of his wrongdoing, without providing prior notice of the investigation or of the precise allegations.

The panel of agency officials did tell Womer of the allegations against him at the beginning of the proceeding on November 20. Then, after a few preliminary general questions, Womer was shown copies of the checks allegedly issued to him by a government contractor. Thus, Womer was advised of the nature of the allegations, and of at least part of the evidence against him before he attempted to make , a detailed explanation of the circumstances surrounding the issuance of the cheeks. We conclude that this notice provided at the beginning of the November 20 proceeding was consistent with the “rudiments of fair play,” Chicago M. & St. P. R. Co. v. Polt, 232 U.S. 165, 168, 34 S.Ct. 301, 58 L.Ed. 554. Hannah v. Larche, 1960, 363 U.S. 420, 487, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (concurring opinion of Frankfurter, J.), and that there was no violation of procedural due process.

III.

Womer claims that when a government employee is questioned about job-related matters, and there is a substantial risk that he may lose his job and be subjected to criminal prosecution for actions connected with the subject of the inquiry, the officials conducting the inquiry must advise him of his options and the consequences of his choice before asking any questions or asking for any comments. Womer contends that he should have been advised along the lines of the warning given to certain New York City employees involved in Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 2 Cir. 1970, 426 F.2d 619, cert. denied, 1972, 406 U.S. 961, 92 S.Ct. 2055, 32 L.Ed.2d 349:

“I want to advise you, Mr.-, that you have all the rights and privileges guaranteed by the Laws of the State of New York and the Constitution of this State and of the United States, including the right to be represented by counsel at this inquiry, the right to remain silent, although you may be subject to disciplinary action ■ by the Department of Sanitation for the failure to answer material and relevant questions relating to the performance of your duties as an employee of the City of New York.
“I further advise you that the answers you may give to the questions propounded to you at this proceeding, or any information or evidence which is gained by reason of your answers, may not be used against you in a criminal proceeding except that you may be subject to criminal prosecution for any false answer that you may give under any applicable law, including Section 1121 of the New York City Charter.”

426 F.2d at 621.

As discussed earlier, the presiding official remarked at the beginning of the November 20 proceeding that the allegations of irregularities “are serious enough to warrant the dismissal of a government employee, specifically serious enough to warrant your dismissal.” On the basis of this implied threat of removal from office if he failed to respond, Womer’s remarks and answers to questions at this inquiry could not be used against him in a criminal proceeding. Garrity v. New Jersey, 1967, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562. Also, if Womer had refused to answer any questions, without being told that his answers and the fruits thereof could not be used in criminal proceedings, there would be a serious question as to whether he could be removed from his job because of his failure to answer questions. Kalkines v. United States, Ct.C1.1973, 473 F.2d 1391. However, neither of these situations is presented in this case, and we do not see how Womer has been injured in any way by the failure to explain these issues to him.

Although not specifically discussed, Womer’s claim of insufficient advice apparently includes the failure to tell him that he could remain silent and could be represented by counsel. These warnings were not necessary. The interview on November 20 comes within the logic of Garrity v. New Jersey, supra, so that statements by Womer, and their fruits, could not have been used in a criminal proceeding. Since there was no possibility of Womer’s statements being used against him in a criminal proceeding, there was no constitutional necessity for warnings of the sort required by Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The logic of Miranda does not extend to proceedings such as these, which legally could have no effect in any criminal proceeding against Womer. Even if Womer’s statements could have been used in a later criminal proceeding, there is serious question whether he would have been entitled to Miranda, warnings. See Boulware v. Battaglia, D.Del.1972, 344 F.Supp. 889, 900-902, aff’m, 3 Cir. 1973, 478 F.2d 1398, and United States v. Prudden, 5 Cir. 1970, 424 F.2d 1021, 1028.

IV.

Womer contends that the regulation he allegedly violated was not promulgated until after the conduct in question occurred. This contention is without merit. Although AR 600-50 has been amended from time to time, a conflict of interest provision similar to the one issued on June 29, 1966 was included in the regulation issued on April 18, 1962 and also in the one issued on April 3, 1964.

Womer challenges the sufficiency of the factual allegations which formed the basis of the charges leading to his removal. It is settled that the scope of judicial review of administrative agency removal decisions is limited. See Chiriaco v. United States, 5 Cir. 1964, 339 F.2d 588; Anonymous v. Macy, 5 Cir. 1968, 398 F.2d 317; McGhee v. Johnson, 10 Cir. 1969, 420 F.2d 445; Meehan v. Macy, 1968, 129 U.S. App.D.C. 217, 392 F.2d 822, 830; Hargett v. Summerfield, 1957, 100 U.S.App. D.C. 85, 243 F.2d 29, 32. We agree with the district court that “The record here reveals no evidence of abuse of discretion or capricious action in the dismissal of Mr. Womer.”

Affirmed.

      . At some point, LeBlanc apparently backed out. According to Womer, LeBlanc never put any money into the enterprise. (K. 13.)

      . The opinion of the Appeals Examiner from the Dallas Regional Board reveals that in the proceedings before the Regional Board, Womer objected “to the procedures employed by the U.S. Army Engineers District in developing the case against him; specifically alleging that his rights were violated in the administrative hearing held on November 20, 1969.” Womer also raised this claim in the district court. Thus, it is clear that Womer has been diligent in preserving his claim that the November 20 proceeding violated his constitutional rights.

      . Arnett v. Kennedy, 1974, - U.S. —, 94 S.Ct. 1633, 40 L.Ed.2d 15 [42 USLW 4513, Apr. 16, 1974] at 4523 (dissenting opinion of Marshall, J., joined by Douglas and Brennan, J.T.), 4530 (concurring and dissenting opinion of Powell, J., joined by Blackmun, J.) and 4536 (concurring and dissenting opinion of White, J.).

      . 5 U.S.C. § 554(b) :
      “(b) Persons entitled to notice of an agency hearing shall be timely informed of— “(1) the time, place, and nature of the hearing;
      “(2) the legal authority and jurisdiction under which the hearing is to be held; and
      “(3) the matters of fact and law asserted. When private persons are the moving parties, other parties to the proceeding shall give prompt notice of issues controverted in fact or law; and in other instances agencies may by rule require responsive pleading. In fixing the time and place for hearings, due regard shall be had for the convenience and necessity of the parties, or their representatives.”

      . Frisbie v. Collins, 1952, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541; Williams v. People of State of N.Y., 1949, 337 U.S. 241, 245, 69 S.Ct. 1079, 93 L.Ed. 1337; Cole v. State of Arkansas, 1948, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644; In re Oliver, 1948, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682; McCarly v. Sanders, M.D.Ala.1970 (three-judge court), 309 F.Supp. 8, 11.

      . In a criminal case, a defendant may refuse to answer questions posed by the police or refuse to testify at his trial, and his silence may not be used against him. Of course, a government employee may refuse to respond to questions put to him by his superiors. However, his refusal to respond, after proper instructions, may be used as a basis for dismissal. See the thorough discussion of this point in Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation of the City of New York, 2 Cir. 1970, 426 F.2d 619 (Friendly, J.), cert. den. 406 U.S. 961, 92 S.Ct. 2055, 32 L.Ed.2d 349.

      . For discussion of an analogous problem in the field of labor law, see National Labor Relations Board v. J. Weingarten, Inc., 5 Cir. 1973, 485 F.2d 1135, cert. granted Apr. 29, 1974, - U.S. -, 94 S.Ct. 1990, 40 L.Ed. 2d 557, 42 USLW 3607, where this Court concluded that the failure to comply with an employee’s request to have a union representative present at an interview initiated by the employer to investigate thefts did not constitute an unfair labor practice.

      . The Deputy District Engineer who wrote the December 2 letter to Womer was present at the November 20 proceeding. However, the District' Engineer who made the final decision on Womer’s removal was not present on November 20.

      . Womer also was “entitled to an evidentiary trial-type hearing at the appeal stage of the proceeding^],” Arnett v. Kennedy, 1974, - — ■ U.S. -, .-, 94 S.Ct. 1633, 1640, 40 L. Ed.2d 15 [42 USLW 4513, 4516, Apr. 16, 1974]. See 5 CFR §§ 771.208, 771.210-771.-212, 772.305 (1973).

      . This proposition is stated explicitly in Justice Frankfurter’s concurring opinion in Hannah v. Larche, 1960, 363 U.S. at 488, and is in part the basis of Justice Douglas’ dissenting opinion in Hannah, at 493 ff. Also see Jenkins v. McKeithen, 1969, 395 U.S. at 427-431.

      . In Gardner v. Broderick, 1968, 392 U.S. 273, 276, 88 S.Ct. 1913, 1915, 20 L.Ed.2d 1082, the Supreme Court stated: “In that case [Garrity], we held that when a policeman had been compelled to testify by the threat that otherwise he would be removed from office, the testimony that he gave could not be used against him in a subsequent prosecution.” In Uniformed Sanitation Men Ass’n v. Sanitation Comm’r, 1968, 392 U.S. 280, 284, 88 S.Ct. 1917, 1919, 20 L. Ed.2d 1089, the Court commented: “Garrity v. New Jersey, 385 U.S. 493 [87 S.Ct. 616, 17 L.Ed.2d 562] (1967), in which we held that testimony compelled by threat of dismissal from employment could not be used in a criminal prosecution of the witness . . . .” Also see Kalkines v. United States, Ct.C1.1973, 473 F.2d 1391.

      . Womer, in bis brief, asserts that the U. S. Attorney was conducting a criminal investigation involving the same facts and circumstances.

      . The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” (Emphasis added.) The privilege against self-incrimination may be invoked in a civil or administrative proceeding, where an appropriate answer to a question might be self-incriminating. In this case, nothing said by Womer could have later been used against him in a criminal proceeding. In fact, so far as we are advised, no effort has been made to use anything said by Womer on November 20 in any subsequent' criminal proceedings.

      . In Boulware, where the police department summoned certain officers to a departmental hearing concerning alleged criminal wrongdoing, the officers claimed they should have been given Miranda warnings. The Court replied, “The requirement to inform an individual arises only after he has been taken into custody in a criminal proceeding. Id. [United States v. Jaskiewicz, 3 Cir. 1970, 433 F.2d 415, cert. denied, 1971, 400 U.S. 1021, 91 S.Ct. 582, 27 L.Ed.2d 632, and United States v. White, 2 Cir. 1969, 417 F. 2d 89, cert. denied, 1970, 397 U.S. 912, 90 S.Ct. 910, 25 L.Ed.2d 92]. Thus, since the plaintiffs were subject to a civil investigation and had not been taken into custody, the defendants were not under an affirmative obligation to advise the plaintiffs of their Miranda warnings. See United States v. Prudden, 424 F.2d 1021, 1028 (5 Cir. 1970).” 344 F. Supp. at 902.


author: AINSWORTH, Circuit Judge:

text:
    Juan FONSECA et al., Plaintiffs-Appellants, v. HIDALGO COUNTY WATER IMPROVEMENT DISTRICT NO. 2 et al., Defendants-Appellees.
    No. 73-3556.
    United States Court of Appeals, Fifth Circuit.
    June 17, 1974.

      David G. Hall, American Civil Liberties Union Foundation-South Tex. Project, San Juan, Tex., Melvin Wulf, Sanford J. Rosen, Burt Neuborne, American Civil Liberties Union, New York City, for plaintiffs-appellants.
    Vilma S. Martinez, Sanford Jay Rosen, San Francisco, Cal., George J. Korbel, San Antonio, Tex., amicus curiae.
    Morris Atlas, Harry L. Hall, McAllen, Tex., for defendants-appellees.
    Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.
   AINSWORTH, Circuit Judge:

Plaintiffs filed this class action for declaratory and injunctive relief on their own behalf and on behalf of all of those persons residing within the corporate territory of defendant water district, duly qualified voters under the laws of the State of Texas who desired to vote for plaintiffs as candidates for the offices of directors of defendant water district. Plaintiffs seek thus to represent a class of poor Mexican-American farm workers who live in unincorporated rural communities known as colonias. They desire by their election as directors of the defendant water district to change the policy of providing water primarily for irrigation purposes and to cause the eventual development of municipal fresh water supplies to residents of the colonias.

Plaintiffs seek to set aside the election for directors of defendant water district, to have another election ordered, and to enjoin defendants from refusing to print their names on the ballot for the offices of directors of the water district. In their suit plaintiffs attack the constitutionality of section 51.072, Texas Water Code, V.T.C.A. (1972), which states that to be qualified for election as a director of a water district a person must be a resident of the state, own land subject to taxation in the district, and be at least 21 years of age. They contend that the statutory requirement that a director own taxable land in the district establishes a constitutionally impermissible precondition for running for office, i. e., the basis of wealth, and infringes on the rights of potential electoral supporters by denying such voters an opportunity to vote for candidates of their choice, in violation of the equal protection clause of the Fourteenth Amendment. They cite in support of these contentions Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) and Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969). The district court held that the constitutional attack was insubstantial and rejected plaintiffs’ demands, and they bring this appeal.

Initially we must determine whether plaintiffs filed their candidacies within the 20-day time limit prescribed by Texas law, section 51.075, Texas Water Code (1972). The defendants urge that under general Texas law, as interpreted by that state’s highest court, both the first and last days of the time limit for qualifying are included and the plaintiffs therefore filed the candidacies within 19 days rather than 20 days as required by the statute. However, section 1.002 of the Texas Water Code states that the Texas Code Construction Act (article 5429b-2, Vernon’s Tex.Ann. Civ.St.) applies to each provision of the Code, and under the provisions of section 2.04(a) of the latter act, “in computing a period of days, the first day is excluded and the last day is included.” Thus plaintiffs’ candidacies were timely filed under these Texas statutes.

We are urged by defendants to hold that there is no substantial constitutional question presented in the requirement of section 51.072 that candidates for directors be owners of taxable property within the water district, and they cite Salyer Land Co. v. Tulare Lake Basin Water Stor. Dist., 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973), and Associated Enterprises, Inc. v. Toltec District, 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675 (1973), recent decisions of the Supreme Court, in support of their contention. The Supreme Court held that in certain special limited purpose irrigation districts (in California and Wyoming), which were involved in these cases, the franchise could be limited to landowners.

Plaintiffs contend that there are substantial differences between these Supreme Court rulings and the present case. In Salyer, supra, the Supreme Court pointed out that the district, “although vested with some typical governmental powers, has relatively limited authority,” whose primary purpose is to provide water for farming but “[i]t provides no other general public services such as schools, housing, transportation, utilities, roads or anything else of the type ordinarily financed by a municipal body.” Id., 410 U.S. at 728-729, 93 S.Ct. at 1230. Plaintiffs, on the other hand, point out that Texas WCIDs have broad power and authority similar to that of a municipality. They assert that section 51.121 of the Texas Water Code details many of these broad purposes which include not only control and distribution of water for irrigation purposes but also for all other useful purposes, including reclamation, drainage, conservation and development of forests, water and hydroelectric power, as well as navigation of coastal and inland waters, etc. There are other sections of the Texas Water Code which extend the broad purposes enumerated, such as, for example, sections 51.122, 51.137, 51.402 and others.

In Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36, the Supreme Court summarized the tests which must be met to conclude that a constitutional attack is insubstantial and that the convening of a three-judge court is accordingly not required. The Supreme Court said:

Title 28 U.S.C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. “Constitutional insubstantiality” for this purpose has been equated with such concepts as “essentially fictitious,” Bailey v. Patterson, 369 U.S. [31], at 33, 82 S.Ct. [549], at 551 [7 L.Ed.2d 512]; “wholly insubstantial,” ibid,.; “obviously frivolous,” Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910); and “obviously without merit,” Ex parte Poresky, 200 U.S. 30, 32, 54 S.Ct. 3, 4-5, 78 L.Ed. 152 (1933). The limiting words “wholly” and “obviously” have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if “ 'its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.' ” Ex parte Poresky, supra, at 32, 54 S.Ct., at 4, quoting from Hannis Distilling Co. v. Baltimore, supra, 216 U.S., at 288, 30 S.Ct., at 327; see also Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-106, 53 S.Ct. 549, 550, 77 L.Ed. 1062 (1933); Mc-Gilvra v. Ross, 215 U.S. 70, 80, 30 S. Ct. 27, 31, 54 L.Ed. 95 (1909).

See also our recent comprehensive decision on this subject in Sands v. Wainwright, 5 Cir., 1973, 491 F.2d 417.

We are unable to say, under these tests, that plaintiffs’ assertion of the unconstitutionality of section 51.072 of the Texas Water Code requiring that a candidate for water district director be a freeholder, is insubstantial and does not require the convening of the three-judge court under 28 U.S.C. § 2281. Despite the Salyer and Associated Enterprises decisions, we cannot say that the attack upon the statute is “essentially fictitious,” “wholly insubstantial,” “obviously frivolous,” “obviously without merit,” or that “its unsoundness so clearly results from the previous decisions of this [the Supreme] court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.”

It is, therefore, necessary that this case be remanded to the district court for the convening of the statutory three-judge court required by 28 U.S.C. § 2281.

Reversed and remanded.

      . This is a companion case to Jimenez v. Hidalgo County Water Improvement District No. 2 et al., No. 73-3557, 496 F.2d 113, decided by this Court today.

      . Texas Water Code (1972) section 51.072 reads in full as follows:
      To be qualified for election as a director, a person must be a resident of the state, own land subject to taxation in the district, and be at least 21 years of age.

      . Texas Water Code (1972) section 51.075 reads in full as follows :
      A candidate for the office of director or other elective office may file an application with the secretary of the board to have his name printed on the election ballot. The application must be signed by the applicant or by at least 10 qualified electors of the district and must be filed at least 20 days before the date of the election.

      . Texas Water Code (1972) section 1.002 reads in full as follows:
      The Code Construction Act (Article 5429b — 2, Vernon’s Texas Civil Statutes) applies to the construction of each provision in this code, except as otherwise expressly provided by this code.

      . Texas Code Construction Act section 2.-04(a) [Vernon’s Texas Annotated Civil Statutes article 5429-b] reads in full as follows:
      In computing a period of days, the first day is excluded and the last day is included.

      . Section 51.121 of the Texas Water Code reads in full as follows:
      (a) A water control and improvement district organized under the provisions of Article III, Section 52, of the Texas Constitution, may provide for:
      (1) the improvement of rivers, creeks, and streams to prevent overflows, to permit navigation or irrigation, or to aid in these purposes; or
      (2) the construction and maintenance of pools, lakes, reservoirs, dams, canals, and waterways for irrigation, drainage, or navigation, or to aid these purposes, (b) A water control and improvement district organized under the provisions of Article XVI, Section 59, of the Texas Constitution, may provide for:
      (1) the control, storage, preservation, and distribution of its water and floodwater and the water of its rivers and strfeams for irrigation, power, and all other useful purposes;
      (2) the reclamation and irrigation of its arid, semiarid, and other land which needs irrigation;
      (3) the reclamation, drainage, conservation, and development of its forests, water, and hydroelectric power;
      (4) the navigation of its coastal and inland water;
      (5) the control, abatement, and change of any shortage or harmful excess of water;
      (6) the protection, preservation, and restoration of the purity and sanitary condition of water within the state; and
      (7) the preservation and conservation of all natural resources of the state.
      (c) The purposes stated in Subsection (b) of this section may be accomplished by any practical means.


text:
    Guadalupe JIMENEZ et al., Plaintiffs-Appellants, v. HIDALGO COUNTY WATER IMPROVEMENT DISTRICT NO. 2 et al., Defendants-Appellees.
    No. 73-3557.
    United States Court of Appeals, Fifth Circuit.
    June 17, 1974.
    David G. Hall, American Civil Liberties Union Foundation-South Tex. Project, San Juan, Tex., Melvin L. Wulf, Burt Neuborne, American Civil Liberties Union, New York City, for plaintiffs-appellants.
    Vilma S. Martinez, Sanford Jay Rosen, San Francisco, Cal., George J. Korbel, San Antonio, Tex., amicus curiae.
    Harry Hall, Morris Atlas, McAllen, Tex., Garland F. Smith, Weslaco, Tex., for defendants-appellees.
    Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.
   AINSWORTH, Circuit Judge:

Plaintiffs filed this complaint for declaratory and injunctive relief on their own behalf and on behalf of. a class of persons similarly situated “composed of all those persons whose lands were excluded from the Defendant Water Districts without actual personal notice to the owners or persons in possession of such lands who do not want their lands excluded from the Defendant Water Districts.” They specifically assert the uneonstitutionality of article 8280-3.2, Vernon’s Tex.Ann.Civ.St., under which the action of the defendant water districts occurred and pursuant to which construetive public notice of a meeting of the district for the purpose of excluding certain lands from the district was made by publication and posting, and not by personal notice to the members of the class.

On October 28, 1971, the board of directors of defendant Hidalgo County Water District No. 2 ordered the exclusion of 36 rural subdivisions in which plaintiffs and their class reside. On September 6, 1972, the board of directors of defendant Hidalgo and Cameron Counties Water Control and Improvement District No. 9 excluded 40 of such subdivisions. These are very large water districts situated in the most populous regions of the Lower Rio Grande Valley at the southernmost tip of Texas.

Plaintiffs complain that they have been deprived of their right to vote for members of the board of directors of the defendant water districts by the districts’ action in excluding the areas is which they live from the territorial limits of the defendant water districts. Under Vernon’s Ann.St. Texas Constitution, article 6, § 2, a person must reside in the district in which he intends to vote. Plaintiffs desire to assert the right to vote for directors so that eventually they may be able, through directors elected by them, to change the policy of the defendant water district from one primarily devoted to irrigation for agriculture to one also engaged in providing domestic water and sanitation services for the poor unincorporated rural areas (colonias) in which they and their class reside. Thus exclusion of the territory in which they live by action of defendant boards, pursuant to the constructive notice provisions of article 8280-3.2, is, they assert, an unconstitutional deprivation of their right to vote, contrary to the Fourteenth Amendment and the due process clause thereof.

Plaintiffs contend that the constructive notice contemplated by article 8280-3.2 fails to comply with procedural standards required by the due process clause when political subdivisions of a state, such as rthe water districts here, exclude a substantial number of the residents of those districts thereby terminating their political rights within the subdivision, including any rights to receive services from these political units. They cite decisions of the Supreme Court on the issue of the sufficiency of notice under the due process clause, such as the leading case of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); also Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962), and others. They contend that a real opportunity to be heard must be offered by a water district which proposes to de-annex the property of numerous citizens from the limits of the district. They aver that since 1920, in the case of San Juan District (Water District No. 2), and since 1928, in the case of Mercedes District (Water District No. 9), the plaintiffs and their class have been vested with the right to vote and participate in the political affairs of both districts and that these rights have now been divested by the defendant water districts with only the constructive notice to affected citizens by publication and posting.

Plaintiffs assert that none of the plaintiffs or their class received any actual notice of the hearings which were to consider exclusion of their communities from the districts; that the predominant language of most of the residents of the colonias is Spanish and many do not read, write or understand the English language; that the names and addresses of the persons affected by the exclusion were readily available in the public records of the Hidalgo County Tax Assessor-Collector and it would have been possible to have copied these names and addresses from the tax records so that actual notice could have been given. Plaintiffs contend, therefore, that insufficiency of notice has deprived them of their right to a hearing.

On the other hand, the defendant water districts contend that the type of notice complained of in this case is universally provided in similar proceedings in practically every state in the Union and that it would be a practical impossibility to give the kind of notice which plaintiffs contend is minimally required by the due process clause. They point out that similar notice provisions have been upheld by the Texas Supreme Court in Tarrant County Water Control & Improvement District No. 1 v. Pollard, Attorney General, 118 Tex. 138, 12 S.W.2d 137 (1929); Rutledge v. State, 117 Tex. 342, 7 S.W.2d 1071 (1928) and Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070 (1927). Defendants also contend that the eases cited by plaintiffs, such as Mullane and Schroeder, supra, are not authority for the proposition that in this type of exclusion proceedings on property from the boundaries of a water control district, personal notice by mail is required nor is the type of notice one required in judicial proceedings.

Defendants cite the leading case of Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907), to the effact that the territory over which political subdivisions of the state shall exercise authority rests in the absolute discretion of the state. This is true, defendants argue, unless there is clear encroachment upon the provisions of the Fourteenth Amendment. Thus they conclude that the determination of what property should originally be included in water control and improvement districts or subsequently excluded was a political right clearly reserved to the State of Texas by the provisions of the Tenth Amendment. See Johnson v. Hood, 5 Cir., 1970, 430 F.2d 610.

Defendants conclude that there is no substantial constitutional question presented as to require convening of a three-judge court and accordingly that the district court was correct in so holding and in dismissing plaintiffs’ suit.

This case is a companion case to Juan Fonseca et al. v. Hidalgo County Water Improvement District No. 2 et al., decided this day, 496 F.2d 109, where we held that another constitutional attack on a Texas statute was not insubstantial under the tests correlated by the Supreme Court in the recent decision in Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36. See also our recent decision in Sands v. Wainwright, 5 Cir., 1973, 491 F.2d 417. We are likewise unable to say here that the constitutional attack of plaintiffs is “essentially fictitious,” “wholly insubstantial,” “obviously frivolous,” “obviously without merit,” or that “its unsoundness so clearly results from the previous decisions of this [the Supreme] court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.”

It is necessary, therefore, that this case be remanded to the district court for the organization of a three-judge court, as required by 28 U.S.C. § 2281.

Reversed and remanded.

      . Vernon’s Ann.Tex.Civ.St. article 8280-3.2 reads in full as follows:
      Section 1. As used in this Act:
      (a) “Urban property” means land which has been subdivided into town lots, or town lots and blocks, or small parcels of the same general nature of town lots, or town blocks and lots, designed, intended or suitable for residential or other nonagricultural purposes, as distinguished from farm acreage, including streets, alleys, parkways, parks and railroad property and rights-of-way in such subdivision; whether such subdivision be within or near any established city, town or village, or not; and whether or not a plat or map of such subdivision has been duly filed for record and recorded in the office of the county clerk of the county in which such subdivision or any part thereof is situated. Urban property shall not be deemed to include land, which is or has been within one year previous to the date of the hearing hereinafter provided, used for farming or agricultural purposes.
      (b) “District” means any water control and improvement district now existing or hereafter created for the principal purpose of, or principally engaged in, furnishing water for the irrigation of agricultural lands and having no outstanding bonded indebtedness owing by such water control and improvement district at the time of the hearing hereinafter . provided, or having indebtedness only in connection with a loan from an agency of the United States, provided written consent from an authorized representative of the agency of the United States involved to the proposed exclusion hereunder is on file with the district prior to the time of the hearing hereinafter provided.
      Sec. 2. Urban property located within the boundaries of a district may be excluded from such district by the Board of Directors after a hearing by the Board of Directors called and held as hereinafter set forth.
      Sec. 3. The Board of Directors of a district may by majority vote adopt a resolution calling a hearing to determine whether or not all or any part or parts of any urban property shall be excluded from the district. The resolution adopted by the Board of Directors shall describe the urban property proposed for exclusion by metes and bounds, by lots, blocks and subdivision or by other legal description so as to definitely identify the same, and such resolution shall set- forth the purpose of the hearing as well as the date, time and .place at which such hearing shall be had.
      Sec. 4. It shall be the duty of the Board of Directors to cause notice of such hearing to be given by posting a true copy of the resolution referred to in the preceding section at the courthouse door of the county in which such district or any portion thereof is situated, at a location in or near the urban property proposed for exclusion, and also in a conspicuous place in the principal office of the district for at least three (3) weeks before the date of such hearing. The date, time, place and purpose of such hearing shall also be advertised by publishing notice thereof one time in one or more newspapers giving general circulation in the district, such publication to be at least ten (10) days prior to the date of hearing. In the event railroad right-of-way is involved herein, notice shall be given to the railroad company by mailing, first class, a true copy of the same, properly addressed to the offices of the railroad at the address as it appears on the last approved county tax roll.
      Sec. 5. If, as a result of such' hearing, which may be continued from day to day, and from time to time until all persons entitled to be heard and who appear at said hearing have had an opportunity, to be so heard and offer evidence, the said Board of Directors shall determine and find (a) that the owners of a majority in acreage of such urban property do not desire irrigation of the same; or
      (b) that such urban property is not used or intended to be used for agricultural purposes; and
      (e) that it would be to the best interest of said district and of the urban property proposed to be excluded or any part or parts thereof, that it be excluded from the district, said Board of Directors shall adopt a resolution setting forth such determination and findings and excluding the urban property or such part or parts thereof as to which such determination and findings are made. Should any canals, ditches, pipelines, pumps or other facilities of the district be located upon lands excluded in the resolution of the Board of Directors, such exclusion shall not affect nor interfere with any rights which the district might have to maintain and continue operation of the facilities as located for the purpose of servicing lands remaining in the district. A copy of said resolution excluding urban property from the district certified to and acknowledged by the Secretary of the Board of Directors shall be recorded by the district in the Deed Records in the county in which the excluded property is situated as evidence of such exclusion.
      Sec. 6. From and after the adoption of a resolution by the Board of Directors excluding urban property the excluded property shall constitute no part of such district and shall have no further liability tbereafter to said district for taxes, assessments or other charges of the district, but any taxes, assessments or other charges owing to the district at the time of exclusion shall remain the obligation of the landowner and shall continue to be secured by any and all statutory liens, if any.
      Acts 1971, 62nd Deg., p. 814, ch. 86, eff. Aug. 30, 1971.