Petition for Writ of Certiorari — Williams v. City of Granite Shoals

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OFFICE OF THE @LERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

HERMAN WILLIAMS,

Petitioner

V.

THE CITY OF GRANITE SHOALS, TEXAS,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF TEXAS

Margaret D. Kennedy

316 W. 12th Street

Suite 307

Austin, Texas 78701

Counsel of Record

for Petitioner

i

QUESTIONS PRESENTED

Whether the laws of the State of Texas, as

interpreted by the state courts, violate

Article 1, Section 10 of the United States

Constitution, in that they impair the

obligation of a city to contract with an

individual citizen.

li

PARTIES TO THE PROCEEDING

Petitioner is Herman Williams, who is

represented by Margaret D. Kennedy of Kennedy &

Associates, 316 W. 12th Street, Suite 307, Austin,

Texas 78701. Petitioner was Plaintiff, Appellee and

Petitioner in the respective courts below.

Respondent is the City of Granite Shoals,

Texas, which is represented by Diane C. Van

Helden of Barish & Van Helden, 1409 West Sixth

Street, Austin, Texas 78703. Respondent was

Defendant, Appellant and Respondent in the

respective courts below.

There are no other parties to this

proceeding.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ............

PARTIES TO THE PROCEEDING ....... i

TABLE OF AUTHORITIES ........... iv

OPINIONS BELOW .............---

BASIS FOR JURISDICTION .......... !

CONSTITUTIONAL PROVISIONS

Ee 2

STATEMENT OF THE CASE.......... 2

REASONS FOR GRANTING THE WRIT .. 5

ee 6 8

CERTIFICATE OF SERVICE .......... 9

iV

TABLE OF AUTHORITIES

Cases

Dartmouth College v. Woodward,

4 UB. C6 WROD A occ ce weten 5

United States Trust Co. v. New Jersey,

Gee ee. kn SS 1 VHRR R 6

Constitutions

U. &. CONES. OE, BD ww cies. i, 2, 4-6

l

Petitioner herein respectfully prays that a

writ of certiorari issue to review the judgment and

opinion of the Supreme Court of the State of Texas

entered in this action on July 28, 1994.

OPINIONS BELOW

The judgment of the trial court is rot

reported. A copy of the trial court’s judgment is

attached as Appendix A. The decision of the Court

of Appeals, Third District of Texas was not

published. A copy of the unpublished opinion is

attached as Appendix B. The Texas Supreme

Court’s decision denying Petitioner’s Application of

Writ of Error is reported at 37 Tex Sup. C J.

1027 (June 25, 1994). (Appendix C). The ‘.exas

Supreme Court’s decision overruling Petitioner’s

Motion for Rehearing is reported at 37 Tex. Sup.

Ct. J. 1183. (Appendix D).

BASIS FOR JURISDICTION

The final judgment of the Supreme Court of

the State of Texas was entered on July 28, 1994.

This Court has jurisdiction to review the judgment

of the Supreme Court of the State of Texas pursuant

to 28 U.S.C. § 1257.

2

CONSTITUTIONAL PROVISIONS

INVOLVED

United States Constitution, Article I,

Section 10

No State shall . . . pass any . . . Law

impairing the Obligation of Contracts.

STATEMENT OF THE CASE

This is a dispute regarding an employment

contract. On June 15, 1987, the city council of the

City of Granite Shoals, Texas (hereinafter “the

City") voted to appoint Petitioner chief of police.

Williams and the City entered into an employment

contract where Petitioner was to serve as police

chief for, a period of five (5S) years, commencing

June 28, 1989, and ending June 28, 1994. On June

12, 1990, Petitioner and the City entered into a new

contract providing that Petitioner was to serve as

police chief for a period of ten (10) years,

commencing June 12, 1990 and terminating June

12, 2000.

On June 2, 1992, the mayor of the City

notified Petitioner by letter that his contract would

be considered in executive session at a council

meeting on June 8, 1992, unless Petitioner

requested an open session. Petitioner requested an

open session. On June 8, 1992, in open session,

3

the council voted to terminate Petitioner’s

employment contract, which reads, in part:

If the City shall so terminate

this agreement, the Chief shall be

entitled to compensation for 3

months from date of notice of

termination. It is further agreed that

breach or evasion of the terms of

this contract by either party hereto

will result in immediate and

irreparable injury to the other party

and will authorize recourse to

injunction and/or _ specific

performance as well as to all other

legal or equitable remedies to which

such injured party may be entitled

hereunder.

Notwithstanding other terms

to the contrary herein, the City may

terminate the services of the Chief,

immediately, without notice and

without severance compensation,

upon the occurance [sic] of any one

of the following:

(a) Conviction of committing a

crime of Class B

Misdemeanor or above or a

Felony.

4

The city council admitted that if found no cause for

terminating Petitioner, but that it wished to

terminate his employment anyway.

Petitioner sued the City, alleging, among

other things, breach of contract for terminating his

employment. After the trial, the jury returned a

verdict in favor of Petitioner, finding that the

parties to the contract intended section nine to

require “cause” before the City could terminate

Petitioner’s employment and before three months

severance pay is payable. The jury further found

that, in this case, there was no cause to terminate

Petitioner. The jury determined that the City had

breached the ten-year contract and awarded

Petitioner damages. The trial court rendered

judgment on the verdict in favor of Williams. —_

Respondent appealed the verdict to the Court

of Appeals, Third District of Texas. The Court of

Appeals reversed the trial court’s judgment and

rendered judgment for Respondent. The Court of

Appeals concluded that, according to Texas law,

"the employment contract, if interpreted to include

a requirement of "cause" for termination, formed an

impermissible restraint on the city council’s

governmental functions which would render the

contract "‘void ab initio--a result the parties could

not have intended.’” (Appendix B p.6 (citation

omitted)). The Court of Appeals held as a matter

of law that the only viable construction of the

| :

5

employment contract was that it was terminable at

will. (Appendix B p.6) Petitioner filed a Motion

for Rehearing with the Court of Appeals. That

motion was denied.

Petitioner Applied for Writ of Error to the

Supreme Court of the State of Texas. On June 22,

1994, the Texas Supreme Court denied Petitioner’s

Application of Writ of Error. Petitioner filed a

Motion for Rehearing regarding his Application of

Writ of Error, arguing, among other things, that the

Court of Appeals’ opinion impaired both a city’s

and an individual’s right to contract. Petitioner’s

Motion for Rehearing was denied on July 28, 1994.

REASONS FOR GRANTING THE WRIT

The basis on which the Texas Court of

Appeals made its decision, subsequently upheld by

the Texas Supreme Court in its denial of a Writ of

Error and Refusal to Reconsider its denial, was that

a city could contract with regard to a governmental

function solely by an “at will" contract. Clearly

this violates the Contract Clause of the U.S.

Constitution.

Ever since Dartmouth College v. Woodward,

4 U.S. (4 Wheat.) 463, (1819) this Court has

established that states could not take action that

would ameliorate the contractual commitment of a

state entity to another party. Yet that is exactly

6

what was done in this case. Here, the city (upheld

by Court rulings) sought to convert a 10 year

employment contract to an at will contract and thus

terminate an employee with whom they found no

fault. Clearly this was not a contract by which a

city had contracted away a governmental function,

since the city was to be informed of any

information of that police chief had knowledge and

the police chief was to report to the City Council

and be guided by it. In fact, one of the causes in

the Personnel Policies Manuals for which the Chief

could be fired for cause was insubordination or

refusing to follow instructions or conduct that

blatantly reflects unfavorably upon the City. (City

of Granite Shoals Personnel and Safety Policies

Handbook Adopted by City Council, Ch. 9, § 1(s);

General Manual Granite Shoals Police Department

§ 3.03.002; Appendix EB).

This Court, in United States Trust Co. v.

New Jersey, 421 U.S. 1 (1977), found that the state

cannot refuse “to meet its legitimate. financial

obligation simply because it would prefer to spend

the money to promote the public good rather than

the private welfare of its creditors." Id. at 29.

The acts of the courts of the State of Texas

in this case did not rise to the level of promoting a

significant and legitimate public purpose. In fact,

should this rule of law stand within the state, all

citizens could suffer irreparable harm. Cities could

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not enter binding contracts for financially beneficial

long term lease agreements on a governmental

function and would thus be relegated to less

advantageous short term, “at will" contracts. Small

governmental entities would loose competitive

advantage with larger entities for quality employees

(as would larger entities compared to the private

sector) by being unable to provide any job stability

as an alternative to greater salaries. Thus, clearly

we have here an unjustifiable attempt to merely

change the obligation of parties to a private

contract.

It should also be pointed out that the State of

Texas has not reserved the power to modify its

contract by either statute or contractual provisions.

Therefore, this Court should set aside the

decisions of the appellate courts of the State of

Texas in this case as being violative of the U.S.

Constitution and leave standing the decision of the

trial court and jury.

8

CONCLUSION

For the foregoing reasons, the petition for of

certiorari should be granted.

Respectfully submitted,

, A. 2 + D fowl

Margaret D. Kennedy

State Bar No. 11294400

316 W. 12th, Suite 307

Austin, Texas 78701

512/482-8300

Fax No. 512/482-8302

ATTORNEY FOR PETITIONER

9

CERTIFICATE OF SERVICE

Undersigned counsel for Petitioner certifies

that service of this Petition for Writ of Certiorari

has been made upon Counsel for Respondent this

date by depositing three copies hereof in the United

States mail, first class postage prepaid.

Ved NK

MARGARET D. KENNEDY

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

HERMAN WILLIAMS,

Petitioner

V.

THE CITY OF GRANITE SHOALS, TEXAS,

Respondent

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

APPENDIX A

Judgment of the Trial Court

CAUSE NO. 14,583

HERMAN WILLIAMS § _ IN THE DISTRICT

§ COURT OF

§

VS. §

§

Q

THE CITY OF § BURNET COUNTY,

GRANITE SHOALS, § TEXAS

AND MAXINE §

THURMAN, JAMES §

BALLARD AND §

LEONARD HOBBS, §

INDIVIDUALLY AND §

AS MEMBERS OF § 33RD JUDICIAL

THE CITY COUNCIL § DISTRICT

FINAL JUDGMENT

On January 18, 1993, came on to be heard

a jury trial in the above-entitled and numbered

cause, wherein HERMAN WILLIAMS is Plaintiff,

and THE CITY OF GRANITE SHOALS, AND

MAXINE THURMAN, JAMES BALLARD AND

LEONARD HOBBS, INDIVIDUALLY AND AS

MEMBERS OF THE CITY COUNCIL are

Defendants.

2

Plaintiff appeared in person and through

attorney of record Margaret D. Kennedy.

Defendants appeared in person and through attorney

of record Diane C. Van Helden. A jury having

been demanded previously, consisting of twelve

good and lawful jurors, was duly impaneled and the

case proceeded to trial.

WHEREAS, the court, after hearing the

arguments of counsel and the testimony of the

parties and of witnesses, and at the conclusion of

the evidence, submitted five questions to the jury.

It appearing to the Court that the verdict of the jury

was for Plaintiff, and against the Defendant City of

Granite Shoals, judgment should be rendered upon

the verdict in favor of Plaintiff and against the

Defendant City of Granite Shoals. The verdict of

the jury is shown by the following responses by

unanimous vote to the jury questions submitted to

them:

1, On June 12, 1990, did the parties intend that

Section Nine of the contract required that

there be cause for the termination of the

contract when three months severance pay is

paid?

ANSWER: Yes.

y & Did the City of Granite Shoals breach the

contract of June 12, 1990?

ANSWER: Yes.

Was such breach, if any, asked about in

Question No. 2, a producing cause of

damages to Plaintiff?

ANSWER: Yes.

What sum of money, if any, if paid now in

cash, would fairly and reasonably

compensate Herman Williams for his

damages, if any, that resulted from the

conduct of the City of Granite Shoals, which

you found in your answers to the foregoing

question.

Consider the following elements of

damages, if any, and none other:

A: Present value, in cash, of the

remainder of the contract.

ANSWER: $116,128.00

B: Lost sick pay.

ANSWER: $ 0.00

CG Job search expense.

ANSWER: $2,500.00

4

What is a reasonable fee for the necessary

services of Plaintiff, Herman Williams’

attorney in this case?

A. For preparation and trial.

ANSWER: $30,000.00

B: For an appeal to the Court of

Appeals.

ANSWER: $5,000.00

be For making or responding to an

application for writ of error to the

Supreme Court of Texas.

ANSWER: $2,500.00

D: If application for writ of error is

granted by the Supreme Court of

Texas.

ANSWER: $1,250.00

What is a reasonable fee for the services of

Defendant, City of Granite Shoals’ attorney

in this case?

5

A: For legal services iti the preparation

and trial of this cause.

ANSWER: $37,1500.00

B: For legal services for an appeal to

the Court of Appeals.

ANSWER: $5,000.00

fe For legal services for making or

responding to an application for writ

of error to the Supreme Court of

Texas.

ANSWER: $2,500.00

D: For legal services for an appeal to

the Supreme Court of Texas in the

event an application for writ of error

is granted.

ANSWER: $1,250.00

IT IS THEREFORE ORDERED AND

DECREED by the Court that Plaintiff is awarded

the following judgment against Defendant City of

Granite Shoals:

$116,128.00 and $2.590.00 in damages,

plus prejudgment interest of 10% per annum from

6

July 15, 1992, to January 18, 1993, amounting to

$6,077.65 and post judgment interest at the rate of

10% per annum from January 21, 1993, until paid.

$30,000.00 attorney’s fees through trial of

this case, plus post judgment interest of 10% per

annum from January 21, 1993 until paid; $5,000.00

if an appeal is taken to the Court of Appeals,

$2,500.00 if a writ of error to the Supreme Court

is applied for, $1,200.00 if the writ is granted.

All writs and processes for enforcement for

collection of $155,908.00 plus post judgment

interest may issue as necessary.

All other relief not expressly granted herein

is denied.

SIGNED this day of

, 1993.

_/s/ DV Hammond

Judge Presiding

APPENDIX B

Judgment of the Third District Court of Appeals

IN THE COURT OF APPEALS,

THIRD DISTRICT OF TEXAS,

AT AUSTIN

JUDGMENT RENDERED MARCH 2, 1994

THE CITY OF GRANITE SHOALS

V.

HERMAN WILLIAMS

APPEAL FROM 33RD DISTRICT COURT

OF BURNET COUNTY

BEFORE CHIEF JUSTICE CARROLL,

JUSTICES ABOUSSIE AND B. A. SMITH

REVERSED AND RENDERED

PER CURIAM OPINION

THIS CAUSE came on to be heard on the transcript

of the record of the court below, and the same

being considered, because it is the opinion of this

Court that there was error in the trial court’s

2

judgment: IT IS THEREFORE considered,

adjudged and ordered that the judgment of the trial

court be and is hereby reversed, and judgment be

and is hereby rendered that appellee take nothing.

It is FURTHER ordered that the appellee pay all

costs relating to this appeal both in this Court and

the court below; and that this decision be certified

below for observance.

IN THE COURT OF APPEALS,

THIRD DISTRICT

OF TEXAS,

AT AUSTIN

THE CITY OF GRANITE SHOALS,

APPELLANT

vs.

HERMAN WILLIAMS,

APPELLEE

FROM THE DISTRICT COURT

OF BURNET COUNTY,

33RD JUDICIAL DISTRICT

NO. 14,583, HONORABLE D.V. HAMMOND,

JUDGE PRESIDING

PER CURIAM

2

This is an appeal from a jury verdict

awarding damages in a suit for breach of an

employment contract. After a trial on the merits,

the jury found that appellant City of Granite Shoals

("the City") had breached a ten-year employment

contract with its chief of police, appellee Herman

Williams. The trial court rendered judgment on the

verdict and the City appealed. In five points of

error, the City argues the trial court erred in

denying its motion for judgment non obstante

veredicto because (1) the contract as interpreted by

the jury is void and unenforceable; (2) there is

legally insufficient evidence to support the jury’s

finding that the contract required “cause” for

termination; and (3) even if "cause" were required,

the failure to find that cause existed was against the

great weight and preponderance of the evidence.

The City further argues the trial court erred in

ruling that the contract was ambiguous and in

submitting certain damage elements to the jury. By

cross-point, Williams argues the trial court erred in

refusing to submit issues to the jury regarding

violation of his right to due course of the law under

the Texas Constitution. We will reverse the trial

court’s judgment and render judgment for the City.

BACKGROUND

The City was a Type-B general law city until

January 14, 1991, when it became a Type-A

general law city. On June 15, 1987, the city

3

council voted to appoint Williams to the position of

chief of police. Williams and the City entered into

an employment contract for Williams to serve as

police chief "for a period of five (5) years,

commencing June 28, 1989, and terminating June

28, 1994, subject, however, to prior termination as

hereinafter provided." On June !2, 1990, the same

parties entered into a new contract in which

Williams was to serve as police chief “for a period

of ten (10) years, commencing June 12, 1990, and

terminating June 12, 2000, subject, however, to

prior termination as hereinafter provided.”

On June 2, 1992, the mayor of the City

notified Williams by letter that his contract would

be considered in executive session at a council

meeting on June 8, 1992, unless Williams requested

an open session. Williams requested an open

session, and on June 8th the council voted to

terminate Williams’ employment pursuant to section

nine of Williams’ employment contract which reads:

If the City shall so terminate

this agreement, the Chief shall be

entitled to compensation for 3

months from date of notice of

termination. It is further agreed that

breach or evasion of the terms of

this contract by either party hereto

will result in immediate and

irreparable injury to the other party

4

and will authorize recourse to

injunction and/or. specific

performance as well as to all other

legal or equitable remedies to which

such injured party may be entitled

hereunder.

Notwithstanding other terms

to the contrary herein, the City may

terminate the services of the Chief,

immediately, without notice and

without severance compensation,

upon the occurance [sic] of any one

of the following:

(a) Conviction of committing a

crime of Class B

Misdemeanor or above or a

Felony.

Williams sued the City, alleging, among

other things, breach of contract for terminating his

employment. After trial, the jury returned a verdict

in favor of Williams, finding that the parties to the

contract intended section nine to require “cause”

before the City could terminate the chiefs

employment and before three months severance pay

is payable. The jury found the City had breached

the ten-year contract and awarded Williams

damages. The trial court rendered judgment on the

verdict in behalf of Williams.

STANDARD OF REVIEW

"A judgment non obstante veredicto is

proper only if there is no evidence supporting the

jury’s findings.” Wal-Mart Stores, Inc. v. Berry,

833 S.W.2d 587, 590 (Tex. App.--Texarkana 1992,

no writ) (citations omitted); see Fenwal, Inc. v.

Mencio Sec., Inc., 686 S.W.2d 660, 663 (Tex.

App.--San Antonio 1985, writ ref’d n.r.e.). A trial

court may render a judgment n.o.v. "if a directed

verdict would have been proper." Tex. R. Civ.

P. 301. When reviewing a trial court’s denial of a

motion for judgment n.o.v., the appellate court

must examine the evidence in the light most

favorable to the jury’s verdict, considering only the

evidence and inferences that support the verdict and

disregarding all contrary evidence and inferences.

Wal-Mart Stores, 833 S.W.2d at 590; Fenwal, 686

S.W.2d at 663. “If there is any probative evidence

supporting the verdict, the no evidence point must

be overruled.” Wal-Mart Stores, 833 S.W.2d at

590 (citing Southern States Transp., Inc. v. State,

774 S.W.2d 639, 640 (Tex. 1989)).

DISCUSSION AND HOLDING

In its first point of error, the City contends

that the jury’s finding that the parties to the

employment contract intended to require “cause” for

termination renders the contract unlawful, void and

6

unenforceable. The City argues that unless the

contract is interpreted as terminable at will, it

violates a city ordinance ("Ordinance 35") in

existence at the time of the contract and restricts the

free exercise of governmental power under state

law. The record reflects that the purpose of

Ordinance 35 was to create a police department

headed by an appointed chief of police to serve a

one year term at the will and pleasure of the City.

Williams responds that the alleged Ordinance 35,

even if validly enacted, was never properly codified

and therefore cannot be used to invalidate the

employment contract. Williams further argues that,

even if Ordinance 35 were valid at the time of the

contract, the City is estopped from asserting the

ordinance as a defense because Williams

detrimentally relied on his contract. Williams’ legal

position is conflicting. On the one hand, he claims

the ordinance creating the department and

establishing the office of chief of police was

invalidly enacted; on the other hand, he claims a

contractual right to serve in that official capacity for

ten years.

EE

In any event, the City is a municipal

corporation. As such, its hiring and firing of city

employees is a governmental function. See City of

Dallas v. Moreau, 718 S.W.2d 776, 779 (Tex.

App.--Corpus Christi 1986, writ ref’d n.r.e.) (citing

Kelly v. Galveston County, 520 S.W.2d 507, 512

(Tex. Civ. App.--Houston [14th Dist.] 1975, no

iia haeaiatiinn ta eteiniileeinaiiieaiiiiianaauia ni itiil

7

writ) and State ex rel. Gallagher v. Kansas City,

319 Mo. 705, 7 S.W.2d 357, 361 (1928)). The

operation of a police department is also a

governmental function. See Cronen v. Nix, 611

S.W.2d 651, 653 (Tex. Civ. App.--Houston [ist

Dist.] 1980, writ ref’d n.r.e.), cert. denied, 454

U.S. 833 (1981) (citing Ellis v. City of W. Univ.

Place, 171 S.W.2d 178 (Tex. Civ. App.-

-Galveston), aff'd, 175 S.W.2d 396 (Tex. 1943)).

A municipal corporation cannot, “by contract or

otherwise, bind itself in such a way as to restrict its

free exercise of . . . governmental powers, nor

could it abdicate its governmental functions, even

for a ’reasonable time’... . " Clear Lake City

Water Auth. v. Clear Lake Utils. Co., 549 S.W.2d

385, 391 (Tex. 1977) (citations omitted); see City

of Brenham vy. Brenham Water Co., 4 S.W. 143,

152 (Tex. 1887); Sayles v. City of Abilene, 290

S.W. 239, 243 (Tex. Civ. App.--Eastland 1926),

aff'd, 295 S.W. 578 (Tex. Common App. 1927,

judgm’t adopted). But see Gillam v. City of Fort

Worth, 287 S.W.2d 494, 499 (Tex. Civ. App.--Fort

Worth 1956, writ refd n.r.e.) (upholding a ten-year

contract between a city and a town in which the city

agreed to furnish water to the town). As one Texas

court of appeals has stated:

Functions such as the exercise of the

police power by which [a municipal

corporation] promotes or protects the

general welfare, comfort and

8

convenience of the people. . . . or

enacts legislation under which the

peace and good order of society is

regulated, are governmental

functions over which the governing

body must retain exclusive control.

These cannot be delegated nor

bartered away and any effort to do so

or any contract which has the effect

of passing them to others or tying the

city’s hands so that it is impotent to

change its policy in respect thereto is

unconstitutional and void.

City of Crosbyton v. Texas-New Mexico Utils. Co..,

157 S.W.2d 418, 420 (Tex. Civ. App.--Amarillo

1942, writ ref'd w.o.m.) (citations omitted)

(emphasis added).

In Clear Lake, the supreme court held that

a contract of indefinite @uration between a utility

and the city water authority, giving the utility the

exclusive right to provide water and sewer service

to landowners within a certain 100-acre tract, was

terminable at will because the water authority could

not restrict the free exercise of its governmental

powers. In Brenham, the supreme court held that

a city ordinance granting a water company the

exclusive privilege to supply water to the city for

twenty-five years was an invalid restriction on the

9

municipality’s governmental functions. The court

reasoned:

Municipal officers hold but for short

terms, those of the city of Brenham

for but one year, and the very

purpose for which short terms of

office and frequent elections are

required is to leave the control of

municipal affairs as near as may be

in the hands of the people; to make

the municipal administration reflect,

as near as may be, the will of the

public. The reasons but emphasize

the necessity for denying to a city

council, or other governing body, the

power, by contract or otherwise, to

disable or hinder from time to time

the full and free exercise of any

power, legislative in its character,

which the legislature has deemed

proper to confer upon such

corporations.

Brenliam, 4 S.W. at 152.

In its order of partial summary judgment,

the trial court found that the contract was

ambiguous as a matter of law. A basic tenet of

contract law is that “[if] two constructions are

possible, a construction rendering the contract

10

possible of performance will be preferred to one

that renders its performance impossible or

meaningless." Temple-Eastex Inc. v. Addison Bank,

672 S.W.2d 793, 798 (Tex. 1984) (citing Republic

Nat’l Bank v. Northwest Nat’l Bank, 578 S.W.2d

109, 115 (Tex. 1979)); see Cecil v. Zivley, 683

S.W.2d 853, 858 (Tex. App.--Houston [14th Dist. ]

1984, no writ). Furthermore, this Court will

"adopt the construction of the contract which

comports with legality, if the contract is susceptible

of more than one reasonable interpretation." Cecil,

683 S.W.2d at 858 (citing Conte v. Greater

Houston Bank, 641 S.W.2d 411 (Tex. App.-

-Houston [14th Dist.] 1982, writ ref’d n.r.e.)).

Following the analysis of the foregoing

courts, we conclude that the employment contract,

if interpreted to include a requirement of “cause”

for termination, formed an impermissible restraint

on the city council’s governmental functions which

would render the contract “void ab initio--a result

the parties could not have intended." Clear Lake,

549 S.W.2d at 391.

We hold as a matter of law that the only

viable construction of the employment contract is

that it was terminable at will. Accordingly, the

trial court erred when it denied the City’s motion

for judgment n.o.v.' The City’s first point of error

is sustained. Based on this holding, we need not

11

address the City’s second, third, fourth, and fifth

points of error.

By cross-point, Williams argues that the trial

court erred in refusing to submit certain issues to

the jury regarding the violation of his right to due

course of the law under the Texas Constitution.

Tex. Const. art. I, § 19. Specifically, Williams

alleges that the City failed to follow certain police

department personnel policies and state statutes in

terminating Williams’ employment, thereby denying

him procedural due process under Article I, § 19 of

the Texas Constitution. Tex. Const. art. I, § 19.

Williams seeks money damages for the alleged

violations.”

Termination of a person’s employment is not

a violation of that person’s procedural due process

rights under the state constitution unless that person

has a legitimate property" interest in his

employment. See Price v. City of San Marcos, 744

S.W.2d 349, 351 (Tex. App.--Austin 1988, writ

denied), cert. denied, 488 U.S. 961 (1988); see also

Hamilton v. City of Wake Village, 593 F. Supp.

1294, 1296 (E.D. Tex. 1984). "‘[A]n officer’s

interest in his [appointed] position, though not

‘property’ in the conventional sense, is a

recognizable interest for purposes of . . . due

process analysis.’" Price, 744 S.W.2d at 351 (citing

Tarrant Co. v. Ashmore, 635 S.W.2d 417, 423

(Tex.), cert. denied, 459 U.S. 1038 (1982)). Once

12

such a property interest is shown, the deprivation of

that interest requires notice and an opportunity to be

heard. However, “[t]he type of notice and hearing

required varies according to the facts of the

situation." Id.

Williams argues that the City did not meet

the notice and hearing requirements set forth in

certain police department personnel policies and in

section 22.077 of the Local Government Code. See

Tex. Loc. Gov’t Code Ann. § 22.077 (West 1988).

We disagree.

Regarding the police department personnel

policies, Williams argues that the City failed to

comply with section 3.04.007 of the policy manual

in terminating Williams’ employment. After

reading section 3.04.007, entitled “Resulting

Action," it is clear that it does not apply to

Williams’ termination in the instant cause.°

Accordingly, we find no merit to Williams’

argument that the City violated his due process

rights in failing to follow the termination procedures

set forth in the manual.

Next, Williams argues that based on section

22.077 of the Texas Local Government Code,‘ the

city council violated his rights because under

subsection (a), the City did not provide him with

notice and an opportunity to be heard regarding the

termination of his employment contract, and

13

because under subsection (b), the council did not

meet the two-thirds vote requirement.

Williams’ argument that his was terminated

without sufficient notice and opportunity to be heard

is without merit. Section 22.077(b) of the Local

Government Code states that the governing body

may remove an officer they have elected "at any

time." Tex. Loc. Gov’t Code Ann. § 22.077 (b)

(West 1988). Subsection (b) does not contain the

notice and hearing requirements of subsection (a),

which pertains to termination for "cause." See Tex.

Loc. Gov’t Code Ann. § 22.077 (West 1988).

Furthermore, when a city official’s termination is

“purely a policy decision and [does] not require the

determination of adjudicative facts" he is not

entitled to a trial-type hearing. Price v. City of San

Marcos, 744 S.W.2d at 351 (citation omitted).

Williams concedes that the City notified him of the

city council meeting but argues that notice was

insufficient because it merely stated that his

employment contract would be “considered” and

that the removal of some city officials would be

discussed. Furthermore, it is clear from the record

that the city council gave Williams, as well as

several members of the public, a chance to speak at

the meeting.

We conclude that the City gave Williams

sufficient notice and opportunity to be heard. See

Price, 744 S.W.2d at 351-52 (holding that a city’s

14

termination of an appointed city official did not

violate his procedural due process rights when he

was given notice of the city council meeting where

his removal would be discussed and where he could

respond, because there were no adjudicative facts to

determine prior to the removal). Accordingly, we

hold the City did not violate Williams’ procedural

due process rights under the Texas Constitution.°

We overrule Williams’ cross-point.

Accordingly, we reverse the trial court’s judgment

and render judgment for the City that Williams take

nothing.

Before Chief Justice Carroll, Justices Aboussie and

B. A. Smith

Reversed and Rendered

Filed:. March 2, 1994

Do Not Publish

ENDNOTES

1. Williams asserts on appeal that the City is

estopped “from asserting the defense of

Ordinance 35" in arguing the contract is

invalid because Williams detrimentally relied

on the contract and because the city "made

no efforts to codify its ordinance... ." In

15

light of our opinion, we need not address

this argument.

Because we dispose of this point on either

grounds, we do not address the City’s

argument that a cause of action for damages

does not exist for violations of rights under

the Texas Constitution.

The sections immediately preceding section

3.04.007 refer to investigations of police

department employees based on written

complaints by citizens or other department

members. Section 3.04.004 states that the

Chief of Police is responsible for the

investigation of all complaints. Section

3.04.007 then states:

A. When the investigation is completed,

the Chief of Police notifies the

accused of the result.

B. When the complaint is classified as

sustained:

l. The immediate supervisor of

the accused submits a

recommendation concerning

appropriate disciplinary

action, which may be in the

form of:

16

a. Oral or written

reprimand.

b. Temporary suspension

for a set period of

time. -

c Indefinite suspension.

d. After one (1) verbal

warning, and one (1)

written warning, the

employee may be

dismissed. If the

violation is of a very

serious nature,

dismissal may occur

immediately without

oral or _ written

warnings.

2. Final decision for all

disciplinary action lies with

the Chief of Police.

Section 22.077, entitled "Removal of

Municipal Officers" states:

(a) The governing body of the

municipality may remove a

municipal officer for

17

incompetency, corruption,

misconduct, or malfeasance

in office after providing the

officer with due notice and an

opportunity to be heard.

(bo) If the governing body lacks

confidence in a municipal -

officer elected by the

governing body, the

governing body may remove

the officer at any time. The

removal is effective only if

two-thirds of the elected

aldermen vote in favor of a

resolution declaring the lack

of confidence.

Tex. Loc. Gov’t Code Ann. § 22.077

(West 1988).

Although Williams alleges in his brief that

the city council did not meet the two-thirds

vote requirement of section 22.077(b), he

does not cite us to any part of the record as

evidence of this allegation. “The court of

appeals is under no duty to make an

independent search of the statement of facts

and exhibits for evidence supporting [an]

Appellant’s contention, Saldana v. Garcia,

155 Tex. 242, 285 S.W.2d 197 (1955), and

18

we decline to do so here.” Golden Villa

Nursing Home, Inc. v. Smith, 674 S.W.2d

343, 351 (Tex. App.-Houston [14th Dist.]

1984, writ ref’d n.r.e.). Furthermore,

Williams does not complain that his

termination was ineffective, but rather that

his due process fights were violated.

Because Williams does not raise any

arguments addressing the effectiveness of his

termination or any other rights affected by

the allegedly defective vote, we do not

address them here.

APPENDIX C

Supreme Court of Texas’ Order Denying

Application for Writ of Error

THE SUPREME COURT OF TEXAS

P. 0. Box 12248

Supreme Court Building

Austin, Texas 78711

John T. Adams, Clerk

June 22, 1994

Ms. Margaret D. Kennedy

Kennedy & Associate

316 W. 12th

Suite 307

Austin, TX 78701

Ms. Diane C. Van Helden

Barish & Van Helden

1409 West Sixth Street

Austin, TX 78703

RE: Case No. 94-0438

Style: HERMAN WILLIAMS

v. THE CITY OF GRANITE SHOALS

Dear Counsel:

Today, the Supreme Court of Texas denied the

above referenced application for writ of error with

the notation "Writ Denied”.

Sincerely,

John T. Adams, Clerk

by_/s/ Gene Burns

Gene Burns, Deputy

APPENDIX D -

Supreme Court of Texas’ Order Overruling

Motion for Rehearing

THE SUPREME COURT OF TEXAS

P. 0. Box 12248

Supreme Court Building

Austin, Texas 78711

John T. Adams, Clerk

July 28, 1994

Ms. Margaret D. Kennedy

Kennedy & Associate

316 W. 12th

Suite 307

Austin, TX 78701

Mr. Robert R. Graves, Jr.

Kennedy & Associate

316 W. 12th Street

Suite 307

Austin, TX 78701

Ms. Diane C. Van Helden

Barish & Van Helden

1409 West Sixth Street

Austin, TX 78703

RE: Case No. 94-0438

Style) HERMAN WILLIAMS

v. THE CITY OF GRANITE SHOALS

Dear Counsel:

Today, the Supreme Court of Texas overruled

petitioner’s motion for rehearing of the application

for writ of error in the above styled case.

Respectfully yours,

John T. Adams, Clerk

By:_/s/ Mia Zierlein

Mia Zierlein, Deputy Clerk

APPENDIX E.

Personnel Policies

CITY OF GRANITE SHOALS

PERSONNEL AND SAFETY

POLICIES HANDBOOK

ADOPTED

BY

CITY COUNCIL

CHAPTER 9

DISCIPLINE

The following work rules and guidelines are

established for employees of the City of Granite

Shoals to serve as minimum standards of employee

performance and to set forth an orderly and

reasonable approach to the management of

employee behavior. Foremen are charged with the

responsibility for enforcing these rules and

guidelines within their respective departments.

The following behavior on the part of employees of

the City will result in disciplinary action up to, and

including, dismissal by the foreman or the Mayor.

a. Falsification of records.

b. Repeated tardiness or unauthorized

absence. Absence for three (3)

consecutive working days without

notification or without satisfactory

reason will be considered a voluntary

termination.

é. Repeated failure of employees to

report to their work place at the

beginning of their work period.

d. Loafing or carelessness.

Sleeping on the job.

Excessive visiting with other

employees or having unauthorized

visitors during working hours.

Interfering with another employee’s

work.

Violation of safety policies and

procedures.

Failure to report an _ accident

involving an on-the-job injury, or

damage to City property.

Horseplay, disorderly conduct, abuse

of the public, unnecessary rudeness,

or use of abusive language.

Fighting, provoking a fight, or

attempting bodily harm or injury to

another employee or to any other

individual.

Abuse of City equipment or

materials.

Possessing, drinking, or being under

the influence of intoxicants while on

the job.

Soliciting, collecting money;

circulating petitions on City property

at any time without the express

written permission of the Mayor.

Engaging in partisan political activity

during working hours or actively

taking part in political campaigns for

elected positions in the City.

Using City telephones for personal

calls without permission (except in

an emergency) or charging personal

calls to the City.

Theft, dishonesty, or destruction of

City property.

Unauthorized personal use of City

vehicles, equipment and/or facilities.

Insubordination or refusal of an

employee to perform designated

work where such instructions or

work normally and properly may be

required of an employee.

Inadequate work performance or

failure to follow clear instructions

due to incompetence, inefficiency or

negligence.

Gross misconduct or behavior

unacceptable to the City or to the

community at large.

Employee error which is threatening

to life or could result in significant

property loss.

Conviction of a felony, to be

considered individually.

Abuse of rest breaks.

Using City property, supplies, or

equipment for personal business or

benefit.

Acceptance of any valuable

consideration which was given with

the expectation of influencing the

employee in the performance of his

duties.

Failure to maintain a valid current

Texas Driver’s License of

appropriate classification.

Failure to maintain a motor vehicle

driving record (MVR) in accordance

with the "MVR _ Guidelines"

established within Chapter 8, Section

2, if employed in a position that

requires operation of City vehicles

and/or equipment.

GENERAL MANUAL

GRANITE SHOALS POLICE DEPARTMENT

By The

Management Services Section

Field Services Division

Texas Commission on Law Enforcement

Officer Standards and Education

August 1987

3.03.002 CAUSE OF DISCIPLINARY ACTION

Employees are subject to disciplinary

action for the following acts of

misconduct:

A. Commission of any criminal

offense.

B. Neglect of duty or cowardice.

c. Conduct that blatantly reflects

unfavorably upon the

employee, the department, or

the City.