the City of Laredo and Agustin Dovalina, III v. David Leal

OPINION

No. 04-03-00800-CV

CITY OF LAREDO and Agustin Dovalina III,

Appellants

v.

David LEAL ,

Appellee

From the 111th Judicial District Court, Webb County, Texas

Trial Court Nos. 2001-CVQ-000765-D2 & 2003-CVQ-001720-D2

Honorable Raul Vasquez, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: December 29, 2004

DISMISSED FOR WANT OF JURISDICTION IN PART; REVERSED AND RENDERED IN

PART

The City of Laredo and its police chief, Agustin Dovalina, appeal the trial court's summary

judgment in favor of David Leal, a lieutenant in the Laredo Police Department. We hold the hearing

examiner who heard Leal's appeal had both the jurisdiction and the authority to reduce Leal's

indefinite suspension to a temporary 644-day suspension without pay. We therefore reverse this

aspect of the trial court's judgment and render a take-nothing judgment in favor of the City and

Dovalina. We also hold the trial court erred in denying Dovalina's motion for summary judgment on

Leal's substantive and procedural due process claims on the ground of qualified immunity.

Accordingly, we also reverse this aspect of the trial court's judgment and render a take-nothing

judgment in favor of Dovalina.

Factual and Procedural Background

On October 21, 2000, Lieutenant David Leal's son, David Leal II ("D.J."), attended a party

where he was attacked and beaten. Soon thereafter, a suspect in D.J.'s assault case, Eduardo Munoz,

filed a complaint ("the Munoz Complaint") alleging that, on October 28, 2000, he was harassed by

Lieutenant Leal. Other complaints, also alleging harassment and interference with the investigation,

were filed against Leal by members of the Laredo Police Department, Juan Arias, and Sami Alasi

("the Arias-Alasi Complaint").

Both the Munoz and the Arias-Alasi Complaints were investigated by the Laredo Police

Department's Internal Affairs Division under the direction of Lieutenant Gilberto Navarro. Navarro

assigned the investigation of the Munoz Complaint to Officer Gilberto Magaña, Jr. and the

investigation of the Arias-Alasi Complaint to Officer Sergio Moreno. Magaña and Moreno each gave

Leal a copy of the complaint under investigation, informed him of his right to union representation

and a lawyer, asked him to answer written questions, and interviewed him. In neither investigation

did Leal avail himself of his right to a union representative or a lawyer. After reviewing the reports

emanating from these investigations, Assistant Chief Eliodoro Granados forwarded the complaints

to two Disciplinary Review Boards.

Leal appeared before both Disciplinary Review Boards, answered the board members'

questions and, for the most part, gave his side of the story. In the first Disciplinary Review Board,

on March 20, 2001, Leal was represented by Luis Martinez, the vice-president of the Laredo Police

Officers Association. In the second, on April 9, 2001, Leal was represented by the Association's

president, Octaviano Rodriguez. With regard to the Munoz Complaint, the Disciplinary Review

Board recommended that Leal be indefinitely suspended. With regard to the Alasi-Arias Complaint,

the Board recommended that Leal be demoted to a non-supervisory position. The Disciplinary

Review Boards' recommendations were ultimately forwarded to Police Chief Agustin Dovalina III.

If Dovalina was to act on the Board's recommendations, he was required to do so by April 25, 2001.

See Tex. Loc. Gov't Code Ann. § 143.052 (h) (Vernon 1999). However, from the time the second

Disciplinary Review Board concluded on April 9 through April 25, Leal was on either sick leave or

annual leave. (1) Accordingly, Dovalina directed his efforts towards serving Leal at his home.

On April 23, 2001, Magaña and a patrolman saw Leal water plants outside his home and then

go inside. Later that day, however, after Dovalina had signed a notice of an April 25, 2001 pre-termination hearing and directed Lieutenant Navarro to deliver the notice to Leal, Navarro and

Magaña received no answer when they called Leal on his cell phone. When Moreno called Leal's

home phone, he was told by D.J. that Leal was out-of-town; D.J. said he did not know when his

father would return. That afternoon, Navarro again went to Leal's home to deliver the notice of the

pre-termination hearing; this time, Navarro was told by Leal's wife Vanessa that Leal was out-of-town at a doctor's appointment.

On April 24, Navarro tried again, watching Leal's home from 6:00 a.m. until 11:00 a.m.; but

this time he saw no sign of Leal. Later that day Dovalina signed a letter indefinitely suspending Leal

from his position as a lieutenant for violating Rules 2(6), 2(8), and 2(12) of the City of Laredo Fire

Fighters' and Police Officers' Civil Service Commission Rules and Regulations; sections 10.11(A)-(B), 10.13(B), 10.14(C), and 10.34(A) of the Laredo Police Department's Policies and Procedures;

and sections 7.01 and 7.02 of the Laredo Police Department General Orders Manual. After being

ordered to serve Dovalina's April 24 letter of suspension on Leal, Navarro returned to Leal's home

and knocked on the door for approximately five minutes; but no one answered. Accordingly, Navarro

taped a copy of the letter to Leal's front door and put another copy in the mailbox. When Navarro

returned at approximately 6:30 that evening, the letter was still taped to Leal's front door. D.J., who

was in the driveway, again said his father was out-of-town. D.J. refused to accept the letter on his

father's behalf.

As Leal, his wife, and his son later admitted, Leal was at home, sick in bed, on both April 23

and 24. According to Leal, he did not learn of his suspension until April 26, when he read a local

newspaper article, and did not receive the letter of suspension until May 4, when he was handed an

envelope containing the letter and his paycheck. Leal could not explain how, if he did not see the

letter of suspension until April 26, his first attorney was able on April 30 to file Leal's appeal detailing

the same rules he was alleged to have violated in Dovalina's April 24 letter of suspension.

Pursuant to section 143.057 of the Texas Local Government Code and the Collective

Bargaining Agreement between the City and the Laredo Police Association, Leal appealed his

indefinite suspension to an independent third party hearing examiner. After an eighteen-day hearing,

the hearing examiner issued a nineteen-page report. In this report, the hearing examiner found that

Dovalina "took reasonable steps to fulfill [the Local Government Code's service] requirements within

the legal time frame"; but "Leal's family prevented Department representatives from serving the letter

of indefinite suspension." In light of these findings, the hearing examiner concluded that "[t]he City

of Laredo did not violate procedural and notification requirements of the Local Government Code

in issuing Police Lieutenant David Leal an indefinite suspension on April 24, 2001."

The hearing examiner also concluded that only the allegations made in Alasi's complaint were

supported by sufficient evidence. But this conduct represented "serious infractions" and

"demonstrated a lack of good moral character and was prejudicial to good order." In particular, the

hearing examiner found that "Leal violated applicable sections of the City of Laredo Police

Department's Rules and Regulations, the City of Laredo's Policies and Procedures, the Laredo Police

Department's General Orders, the Local Civil Service Rules of the City of Laredo, and the Texas

Local Government Code." Nonetheless, the hearing examiner concluded that "[t]ermination is too

severe for the violations [Leal] committed"; and "[t]he discipline appropriate for his violations is a

suspension from April 24, 2001 to February 16, 2003" (644 days) and restoration of Leal to his

former position. "Considering the continuing fallout to the Department and the general public

stemming from [Leal's] actions," the hearing examiner concluded "it is not appropriate to award back

pay."

Dissatisfied with the hearing examiner's decision, Leal filed this suit in district court,

challenging the hearing examiner's jurisdiction and authority to suspend him without pay or benefits

for more than thirty days and seeking to recover damages from the City and Dovalina under 42

U.S.C.A. § 1983 for violations of his Fifth and Fourteenth Amendment rights to substantive and

procedural due process. Leal moved for summary judgment on all but his substantive due process

claim. In their response to Leal's motion and in their own motion for summary judgment, the City and

Dovalina asserted that the hearing examiner was authorized to reduce Leal's indefinite suspension

to a 644-day suspension; Dovalina was entitled to qualified immunity; and both the City and Dovalina

were entitled to summary judgment on the merits of Leal's substantive and procedural due process

claims. The trial court denied the City's and Dovalina's motion and granted Leal's motion in part,

ruling that the hearing examiner was without jurisdiction and authority to reduce Leal's indefinite

suspension to a 644-day suspension without pay or benefits, granting Leal's motion for partial

summary judgment on his procedural due process claim, and setting a jury trial on damages. The City

and Dovalina appealed.

Standard of Review

We review a summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott , 128

S.W.3d 211, 215 (Tex. 2003). Accordingly, we will uphold a traditional summary judgment only if

the summary judgment record establishes the absence of a genuine issue of material fact and that the

movant is entitled to judgment as a matter of law on a ground set forth in the motion. Tex. R. Civ.

P. 166a(c). We view the evidence in the light most favorable to the respondent and disregard all

contrary evidence and inferences. Provident Life , 128 S.W.3d at 215-216 . "When both sides move

for summary judgment and the trial court grants one motion and denies the other, the reviewing court

should review both sides' summary judgment evidence and determine all questions presented[,] ...

render[ing] the judgment that the trial court should have rendered." FM Props. Operating Co. v. City

of Austin , 22 S.W.3d 868, 872 (Tex. 2000).

Hearing Examiner's Jurisdiction and Authority

The City and Dovalina first argue the trial court erred in denying their motion for summary

judgment and in granting Leal's motion on his claim that the hearing examiner lacked the jurisdiction

and authority to reduce Leal's indefinite suspension to a 644-day suspension without pay. (2) We agree.

The procedure by which a police officer may appeal a disciplinary suspension is set forth in

the Civil Service Act. See Tex. Local Gov't Code Ann. § 143.001 , et seq. (Vernon 1999). Under

the Act, "an officer may appeal his suspension either to the civil service commission or to an

independent third-party hearing examiner." City of San Antonio v. Longoria , No. 04-04-00063-CV,

2004 WL 2098074 , at *1 (Tex. App.-San Antonio Sept. 22, 2004, no pet.) (citing Tex. Local

Gov't Code Ann. § 143.057 (a)). An independent third-party hearing examiner has the same duties

and powers as the civil service commission. Longoria , 2004 WL 2098074 , at *1 (citing Tex. Local

Gov't Code Ann. § 143.057 (f)). "However, unlike the commission's decision, the decision of the

hearing examiner is final and binding on all parties." Longoria , 2004 WL 2098074 , at *1 (citing Tex.

Local Gov't Code Ann. § 143.057 (c)). Accordingly, "a district court may hear an appeal of a

hearing examiner's award only on the grounds that: (1) the hearing examiner was without jurisdiction;

(2) the hearing examiner exceeded his jurisdiction; or (3) the order was procured by fraud, collusion,

or other unlawful means." Longoria , 2004 WL 2098074 , at *1 (citing Tex. Local Gov't Code Ann.

§ 143.057 (j)). This "standard has been interpreted as an 'abuse of authority' standard.'" Longoria ,

2004 WL 2098074 , at *2 (citing Nuchia v. Tippy , 973 S.W.2d 782, 786 (Tex. App.-Tyler 1998, no

pet.)). "An abuse of authority occurs when a decision is so arbitrary and unreasonable that it amounts

to a clear and prejudicial error of law." Longoria , 2004 WL 2098074 , at *2 (citing City of Carrollton

Civil Serv. Comm'n v. Peters , 843 S.W.2d 186, 188 (Tex. App.-Dallas 1992, writ denied)).

Section 143.053(f) of the Texas Local Government Code provides that, "[i]f the commission

finds that the period of disciplinary suspension should be reduced, the commission may order a

reduction in the period of suspension." Tex. Local Gov't Code Ann. § 153.053 (f) (Vernon Supp.

2004). So far as we have been able to determine, this authority is not limited by any statutory

provision; and it has not been limited by any court decision. Indeed, as Dovalina and the City point

out, several courts have affirmed commission decisions reducing indefinite suspensions to temporary

suspensions in excess of thirty days. See Firemen's & Policemen's Civil Serv. Comm'n v. Hamman ,

404 S.W.2d 308, 313 (Tex. 1966) (affirming commission's decision reducing indefinite suspension

to temporary six-month suspension without pay); Kirkwood v. City of Corsicana , 871 S.W.2d 544,

546-48 (Tex. App.-Waco 1994, no writ) (affirming commission's decision reducing indefinite

suspension to temporary thirty-six day suspension); Firemen's & Policemen's Civil Serv. Comm'n

v. Shaw , 306 S.W.2d 160, 164 (Tex. Civ. App.-San Antonio 1957, writ ref'd n.r.e.) (reversing

district court's judgment setting aside commission's decision reducing indefinite suspension to

temporary eight month suspension and affirming commission's decision).

Leal points out that none of these decisions expressly addresses the issue he presents in this

appeal - whether the authority to reduce an indefinite suspension is limited to a temporary suspension

of less than thirty days. However, the fact that none of these decisions addresses whether there is such

a restriction is not authority for the existence of such a restriction. Indeed, the fact that the none of

the officers involved in these cases raised the issue suggests such a restriction does not exist. Leal also

supports his argument that a restriction exists by citation to section 143.052(b) of the Texas Local

Government Code, which provides as follows:

The head of the fire or police department may suspend a ... police officer under the

department head's supervision or jurisdiction for the violation of a civil service rule.

The suspension may be for a reasonable period not to exceed 15 calendar days or for

an indefinite period. An indefinite suspension is equivalent to dismissal from the

department.

Tex. Local Gov't Code Ann. § 143.052 (b) (emphasis added). By its terms, however, this provision

restricts the authority of the heads of the fire and police departments, not the commission or, by

extension, an independent hearing examiner. Leal also cites article 23, section 1 of the Collective

Bargaining Agreement, which provides as follows:

The Chief shall have the authority to demote, temporarily suspend (not to exceed 30

calendar days), or indefinitely suspend any employee for any causes set forth in the

Rules and Regulations of the Civil Service Commission.

Again, however, this provision restricts the authority of the police chief, not the commission or an

independent hearing examiner.

In short, section 143.053(f) of the Texas Local Government Code expressly permits the civil

service commission (and therefore a hearing examiner) to "order a reduction in the period of

suspension"; no provision of the code or interpretative case law of which we are aware limits this

power; and neither section 143.052(b) of the Texas Local Government Code nor article 23, section

1 of the Collective Bargaining Agreement even purports to do so. We therefore hold the commission

(and therefore a hearing examiner) may reduce an indefinite suspension to a temporary suspension

in excess of thirty days. Accordingly, the trial court erred in granting Leal's motion for summary

judgment and in denying the City's and Dovalina's on Leal's claim that the hearing examiner lacked

the jurisdiction and authority to reduce Leal's indefinite suspension to a temporary 644-day

suspension without pay.

Qualified Immunity

Dovalina next argues the trial court erred in denying his motion for summary judgment on

Leal's substantive and procedural due process claims on the ground of qualified immunity. (3) We again

agree.

"The well-established test for qualified immunity requires us to engage in a two-step inquiry."

Sanchez v. Swyden , 139 F.3d 464, 466 (5th Cir.), cert. denied , 525 U.S. 872 (1998). "First, we must

determine whether a public official's conduct deprived a § 1983 plaintiff of a 'clearly established'

constitutional or statutory right." Id. Second, if the public official violates a person's civil rights, we

must determine whether the official's conduct was objectively reasonable. Id. at 467. "Whether an

official's conduct is objectively reasonable depends upon the circumstances confronting the official

as well as 'clearly established law' in effect at the time of the official's actions." Id. Leal's substantive

due process claim fails the first step of this inquiry, while his procedural due process claim fails the

second.

Substantive Due Process

Leal alleged that his right to substantive due process was violated by the conduct of the

Internal Affairs investigators and the composition of the Disciplinary Review Board that

recommended indefinite suspension. However, an inadequate or invalid investigation is insufficient

to state a civil rights claim unless another recognized constitutional right is involved. See , e.g. ,

Andrews v. Fowler , 98 F.3d 1069 , 1079 (8th Cir. 1996). And Leal's complaint regarding the

composition of the Disciplinary Review Board rests upon the incorrect assumption that he was

entitled to an impartial decisionmaker. See Schaper v. City of Huntsville , 813 F.2d 709, 715-718 (5th

Cir. 1987) (holding that due process does not require the state to provide an impartial decision-maker

at the pretermination hearing where post-termination remedies are available). We therefore hold

Leal's substantive due process claim fails to allege the denial of a constitutional right, "clearly

established" or otherwise. Accordingly, the trial court erred in denying Dovalina's motion for

summary judgment on this claim on the ground of qualified immunity.

Procedural Due Process

In his procedural due process claim, Leal contends Dovalina violated his right to procedural

due process by failing to provide him with pretermination due process. Dovalina concedes that Leal

has a property right in his continued employment and appears to concede that, as a general rule, a

police officer is entitled to notice of the charges and an opportunity to respond before he is

suspended. See Bexar County Sheriff's Civil Serv. Comm'n v. Davis , 802 S.W.2d 659, 662 (Tex.

1990), cert. denied , 502 U.S. 811 (1991) (holding that, before an employer may terminate an

employee who has a property right in continued employment, "the employer must furnish the

employee with 'oral or written notice of the charges against him, an explanation of the employer's

evidence, and an opportunity to present his side of the story'" (quoting Cleveland Bd. of Educ. v.

Loudermill , 470 U.S. 532, 546 (1985)). But, Dovalina argues, his "conduct was objectively

reasonable in light of the circumstances of this case." We agree.

The hearing examiner found that Dovalina prepared and attempted to have Leal served with

the letter of suspension; but Leal was "off work due to illness," and his family members "would not

give Department representatives any information about his status or when they expected him to

return." Nor would Leal's family members "accept the letter on ... Leal's behalf." In short, as the

hearing examiner found, "Leal's family prevented Department representatives from serving the letter

of indefinite suspension." We are bound by these findings. See Longoria , 2004 WL 2098074 , at *1

(noting that hearing examiner's decision is final and binding and citing Tex. Local Gov't Code

Ann. § 143.057 (c)). And these circumstances, coupled with the requirement in section 143.052(h)

of the Texas Local Government Code that Dovalina file the "original written statement and charges"

against Leal by April 25, 2001 or be barred from ever doing so, render Dovalina's failure to provide

Leal with either a pretermination notice of the charges or a hearing "objectively reasonable." Our

conclusion is buttressed by the fact that the administrative process afforded Leal notice of the charges

against him, an opportunity to respond to these charges, and a hearing. See Macklin v. City of New

Orleans , 293 F.3d 237, 241 (5th Cir. 2002) (per curiam), cert. denied , 537 U.S. 1159 (2003).

In Macklin , Macklin, a suspended city police officer, was arrested on May 6, 1999 for

aggravated battery. Id. Shortly thereafter, on May 10, 1999, Macklin was suspended for 180 days.

Id . at 239. "An internal investigation by the Department's Public Integrity Division found that

Macklin was the aggressor in the incident," "was repeatedly untruthful to investigators," and failed

"to offer any mitigating evidence at a disciplinary hearing." Id. Macklin "was therefore dismissed from

the police force on February 18, 2000." Id. Macklin appealed his dismissal to the Civil Service

Commission, which held "two hearings on [his] appeal, at which he was represented by counsel" and

then "upheld [his] dismissal." Id. In his subsequent suit against the city, the police chief, and the

mayor, Macklin alleged, among other things, "that his due process interests in property and liberty

were violated by the absence of a pre-suspension hearing and the denial of a name clearing hearing."

Id. at 241 . The Fifth Circuit Court of Appeals disagreed, holding that Macklin had failed to establish

a due process violation because he "was given multiple opportunities to rebut the charges against him,

and was represented by counsel during this stage of the administrative process." Id. So it is in this

case.

It is undisputed that Leal received notice of the charges against him and an opportunity to

respond during the two investigations by the Internal Affairs Division, the two hearings before the

Disciplinary Review Board, and the eighteen-day hearing before the hearing examiner. In short, like

Macklin, Leal was afforded notice of the charges against him and several opportunities to respond

and was in fact represented by counsel during the hearing before the hearing examiner. In light of this

record, the facts found by the hearing examiner, particularly when viewed through the lens of

Macklin , conclusively establish that Dovalina's conduct was objectively reasonable under the

circumstances. Accordingly, we hold the trial court erred in denying Dovalina's motion for summary

judgment on Leal's procedural due process claim on the ground of qualified immunity.

Conclusion

Because the hearing examiner had the jurisdiction and authority to reduce Leal's indefinite

suspension to a 644-day temporary suspension without pay, we reverse the trial court's summary

judgment in Leal's favor in Cause No. 2003-CVQ-001720-D2 and render judgment reinstating the

hearing examiner's decision. And, because Dovalina established his qualified immunity from Leal's

procedural and substantive due process claims, we reverse the trial court's summary judgment in

favor of Leal in Cause No. 2001-CVQ-000765-D2 and render judgment in Dovalina's favor.

However, we do not have jurisdiction over the City of Laredo's appeal in Cause No. 2001-CVQ-000765-D2 and therefore dismiss the City's appeal. See Bexar County v. Giroux-Daniel , 956 S.W.2d

692, 695 (Tex. App.-San Antonio 1997, no pet.) (holding "a local government sued under § 1983

has no immunity even if its employee is entitled to qualified immunity"; and the court of appeals does

not have jurisdiction over the local government's interlocutory appeal). Leal's substantive and

procedural due process claims against the City of Laredo therefore remain pending in the trial court.

We are confident the trial court will proceed in a manner consistent with this opinion.

Sarah B. Duncan, Justice

1. After the second Disciplinary Review Board concluded on April 9, Leal took three hours of sick leave. He

was under his doctor's care from April 10 through April 15, took five hours of sick leave on April 10, and took eight

hours of sick leave on April 11; he was off on April 12 and 13 and took eight hours sick leave on April 14 and another

eight hours of sick leave on April 15. On April 16, his doctor released him to work; however, from April 16 through

April 25, Leal was on annual leave, which he requested in April from J.L. Martinez, rather than from his immediate

supervisor, Assistant Chief Eliodoro Granados. At the time Leal asked to take his annual leave, he knew the first

Disciplinary Review Board had recommended that he be indefinitely suspended and that Dovalina would have to act

on the Board's recommendation no later than April 25 or 26. But, when asking Martinez if he could take his annual

leave from April 16 to April 25, Leal did not advise Martinez of the significance of the April 25 or 26 date.

2. We have jurisdiction to review the trial court's summary judgment on Leal's claim that the hearing examiner

lacked the jurisdiction and authority to suspend Leal without pay or benefits from April 24, 2001 to February 16, 2003,

because this judgment was rendered final and appealable by a severance order. See , e.g. , Lehmann v. Har-Con Corp. ,

39 S.W.3d 191, 195 (Tex. 2001) ("the general rule, with a few mostly statutory exceptions, is that an appeal may be

taken only from a final judgment).

3. Our jurisdiction over Leal's procedural and substantive due process claims extends only to the trial court's

order denying of Dovalina's motion for summary judgment on the ground of qualified immunity. See Tex. Civ. Prac.

& Rem. Code Ann. § 51.014 (a)(5) (Vernon Supp.2004) (expressly permitting appeal from order denying motion for

summary judgment based on assertion of immunity by individual who is an officer or employee of the state or a political

subdivision of the state). We therefore do not address the parties' arguments on the merits of these claims.