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Allen F. Lanier v. City of Laredo and the Firefighters' and Police Officers' Civil Service Commission of the City of Laredo

April 24, 2013

ALLEN F. LANIER,
APPELLANT
v.
CITY OF LAREDO AND THE FIREFIGHTERS' AND POLICE OFFICERS' CIVIL SERVICE COMMISSION OF THE CITY OF LAREDO,
APPELLEES



From the 111th Judicial District Court, Webb County, Texas Trial Court No. 2010-CVQ-001113-D2 Honorable Monica Z. Notzon, Judge Presiding

The opinion of the court was delivered by: Rebeca C. Martinez, Justice

Fourth Court of Appeals San Antonio, Texas

MEMORANDUM OPINION

Opinion by: Rebeca C. Martinez, Justice Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Rebeca C. Martinez, Justice

AFFIRMED

Allen Lanier appeals a summary judgment granted in favor of the City of Laredo (the "City") and the Firefighters' and Police Officers' Civil Service Commission of the City of Laredo (the "Commission") in a proceeding challenging his demotion within the Laredo Police Department. We affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Lanier joined the Laredo Police Department in 1974, starting as a patrol officer and progressing up the ranks to investigator, sergeant, lieutenant and, finally, becoming a captain in 1986. In September 1996, after considering the Police Chief's written recommendation of demotion, the Commission found that probable cause existed to demote Lanier from captain to investigator. Lanier appealed the Commission's finding to an independent third party hearing examiner (the "Hearing Examiner"), who agreed that demotion was warranted and imposed the involuntary demotion on November 27, 1996. Lanier then filed a petition in district court in Webb County, Texas seeking a de novo review of the Hearing Examiner's decision. The trial court granted summary judgment in favor of the City and the Commission. Lanier appealed the summary judgment to this court, which affirmed the district court's judgment in a per curiam opinion. See Lanier v. City of Laredo, et al., No. 04-98-00283-CV, 1998 WL 758038 (Tex. App.--San Antonio Oct. 30, 1998, pet. denied).

On June 24, 2010, Lanier filed a petition in Webb County district court against the City and the Commission seeking to set aside the Hearing Examiner's November 27, 1996 decision as void for lack of jurisdiction. In his petition, Lanier alleged that the Commission did not fully comply with the mandatory notice provisions of section 143.054 of the Firefighter and Police Civil Service Act (the "Act") governing demotions, and that its noncompliance deprived the Hearing Examiner of jurisdiction to demote him. See TEX. LOC. GOV'T CODE ANN. § 143.054 (West 2008). Lanier sought to vacate the "void" ruling, and pled for reinstatement to the rank of captain and recovery of lost pay and other benefits. The City and the Commission moved for summary judgment on the grounds that (1) the Commission provided Lanier with the required notice in full compliance with section 143.054, and (2) even if it failed to fully comply with the statutory notice requirements, the failure did not deprive the Hearing Examiner of jurisdiction to rule on Lanier's appeal. The trial court granted the motion and rendered summary judgment in favor of the City and the Commission without stating the basis of its ruling. Lanier now appeals.

ANALYSIS

Lanier raises the following two issues on appeal: (1) whether the trial court erred in granting the motion for summary judgment; and (2) whether the summary judgment evidence conclusively proves the City and the Commission complied with the notice requirements of section 143.054 of the Local Government Code. The City and the Commission reply that they conclusively established the absence of any fact issue, and that they are entitled to judgment as a matter of law on both grounds of their summary judgment motion. Specifically, they assert the summary judgment record affirmatively shows their full compliance with section 143.054's notice requirements and, even if they failed to give the required notice, the lack of notice had no effect on the jurisdiction of the independent hearing examiner to rule on Lanier's appeal. See City of DeSoto v. White, 288 S.W.3d 389, 397 (Tex. 2009) (reasoning that it is the police officer's action, not the city's notice letter, that invokes the jurisdiction of the commission or the hearing examiner to hear an appeal; therefore, the city's failure to comply with a statutory notice provision, even a mandatory notice requirement, is not jurisdictional).

To prevail on a summary judgment motion brought under Texas Rule of Civil Procedure 166a(c), a movant must show there is no genuine issue as to any material fact, and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review an order of summary judgment de novo. Fielding, 289 S.W.3d at 848. "We review the evidence presented in the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." See id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). Because the trial court did not specify the grounds relied upon to render summary judgment, we will affirm the trial court's judgment if any of the theories advanced by the City and the Commission in their summary judgment motion are meritorious. Progressive Cnty. Mut. Ins. Co. v. Kelley, 284 S.W.3d 805, 806 (Tex. 2009); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

Section 143.054 of the Local Government Code sets forth the procedure governing involuntary demotion of a police officer. TEX. LOC. GOV'T CODE ANN. 143.054. Subsections (a) and (b) of section 143.054 provide that the head of the police department may recommend in writing to the city's civil service commission that a particular officer be demoted. Id. § 143.054(a). The department head must immediately furnish a copy of the written recommendation stating the reasons for the proposed demotion in person to the affected police officer. Id. § 143.054(b). If the commission finds probable cause for the demotion, the commission must then give the police officer written notice to appear before the commission for a public hearing at the specific time and place stated in the notice. Id. § 143.054(c). The notice of the public hearing must be given at least 10 days before the date of the hearing. Id.; see id. § 143.054(d) (police officer is entitled to public hearing before demotion).

The Act provides an appeal mechanism for adverse disciplinary actions such as a recommended demotion, giving the affected officer an option to appeal the adverse action to either the civil service commission or an independent third party hearing examiner. See TEX. LOC. GOV'T CODE ANN. §§ 143.057, 143.1016 (West 2008). If the officer elects to appeal to an independent hearing examiner, the hearing examiner's decision is final and binding on all parties. Id. §§ 143.057(c), 143.1016(c). By electing to appeal to a hearing examiner, the officer automatically waives all rights to appeal to a district court except for limited issues such as jurisdiction. Id. §§ 143.057(c), (j), 143.1016(c), (j). A notice of disciplinary action must inform the officer that he may choose to appeal to an independent hearing examiner instead of to the commission, but that if he appeals to a hearing examiner, he waives any appeal to a district court, except for the limited exceptions set forth in subsection (j). Id. §§ 143.057(a), 143.1016(a). Although it is less than clear, Lanier seems to complain that section 143.054's notice requirements were violated because (i) he did not receive any notice of the Commission's probable cause meeting held on September 27, 1995, and (ii) he did not receive proper notice of the public hearing before the Commission to be held on October 17, 1995.*fn1 With respect to the September 27, 1995 probable cause meeting, Lanier asserts in his brief and in his affidavit attached to his summary judgment response that, on September 19, 1995, the Commission issued "a written notice to the general public advising the public that the Commission ...


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