IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-50170
Summary Calendar
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MICHAEL D. GRAY,
Plaintiff-Appellant,
v.
BEXAR COUNTY SHERIFF’S CIVIL SERVICE COMMISSION;
RALPH LOPEZ, Sheriff,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-94-CV-717)
_________________________________________________________________
October 13, 1997
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Michael D. Gray appeals the district
court’s grant of summary judgment in favor of defendants-appellees
Bexar County Sheriff’s Civil Service Commission and Ralph Lopez.
We affirm the judgment of the district court.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I. BACKGROUND
On May 4, 1992, after stopping plaintiff-appellant Michael
D. Gray (“Gray”) for a traffic violation, San Antonio police
found six rocks of cocaine in the ashtray of his car. The police
arrested Gray for illegal possession of under twenty-eight grams
of cocaine.
At the time of his arrest, Gray was employed by the Bexar
County Sheriff’s Department (“Department”) as a detention officer
in the Bexar County Adult Detention Center. Following Gray’s
arrest, the Department served Gray with a Notice of Proposed
Dismissal and placed him on administrative leave without pay,
effective May 4, 1992. Gray responded with a letter denying that
he had violated any Department rules. He was subsequently tried
and acquitted of the possession of cocaine charge on January 3,
1994, and he then requested that the Department reinstate him.
On January 18, 1994, the Internal Affairs Department (“IAD”)
ordered Gray to submit a Supplemental Report and gave him a set
of interrogatories to answer; Gray complied with both requests.
The IAD then ordered Gray to appear at a meeting on February 4,
1994. Gray requested that he be allowed to bring his attorney to
the meeting, but the IAD refused his request, later explaining
that Gray was “not entitled to have legal counsel present during
an investigative interview concerning an administrative
situation.” Although Gray appeared at the meeting as requested,
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on the advice of counsel he refused to cooperate or to answer any
questions. The IAD then orally requested that Gray submit a
written report, and he refused. In response, the IAD ordered him
in writing to submit the report. The order contained the
following warning to Gray: “[Y]our continued failure to comply
with this order will result in disciplinary action being taken
against you that may include your immediate dismissal from your
employment with the Bexar County Sheriff’s Department.” Gray
acknowledged receipt of the order and signed a statement at the
bottom indicating that he would not comply with it.
On the same day, Gray’s attorney mailed a letter to Sheriff
Lopez and the IAD claiming that Gray’s refusal to comply with the
order was due to the fact that he did not know what the subject
matter of the report was meant to be. Attached to the letter was
a signed statement by Gray which read:
In response to your order of February 4, 1994, the
following information is submitted:
I do not know the subject matter upon which you request
a report. Therefore, I cannot make an intelligent
report.
The IAD deputy chief responded to the letter, explaining Gray’s
then-current situation. The deputy chief stated that Gray’s
refusal to cooperate or answer any questions when IAD officers
attempted to interview him on February 4, 1994 regarding a
continuing internal investigation constituted insubordination and
that the IAD would therefore recommend that Gray be terminated
3
for misconduct.
On February 18, 1994, Gray received a Notice of Proposed
Dismissal based on the May 4, 1992 arrest. The notice stated
that, despite Gray’s acquittal and his claim to have no knowledge
about the cocaine found in his vehicle, “the preponderance of the
evidence indicates that [he] did.” In a letter dated February
24, 1994, Gray denied any misconduct and requested a hearing.
On March 10, 1994, Gray was given a Loudermill hearing, to
which he was permitted to bring counsel. The Department issued
the Order of Dismissal six days later, and Gray appealed it to
the Bexar County Sheriff’s Civil Service Commission
(“Commission”). After a hearing on June 14, 1994, at which Gray
was again represented by counsel, the Commission denied Gray’s
appeal. Gray then filed suit in the 225th Judicial District
Court of Bexar County, Texas pursuant to § 158.037 of the Texas
Local Government Code. TEX. LOC. GOV’T CODE ANN. § 158.037 (West
1988). Defendants-appellees subsequently removed the case to
federal district court pursuant to 28 U.S.C. § 1331 because
Gray’s petition alleged causes of action arising under the
Constitution and laws of the United States.
Before the district court, Gray argued that the Commission’s
ruling should be reversed for several reasons. First, he claimed
that it was not supported by substantial evidence. Second, he
argued that the method of selection of some of the commission
members violated the U.S. and Texas Constitutions. Third, he
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contended that he was denied his constitutional right to counsel
during the investigative process. Defendants-appellees moved
for, and the district court granted, summary judgment on all of
the claims. Gray now appeals that decision, reiterating his
argument that he was denied his right to an attorney at the
February 4, 1994 meeting and that the Commission’s ruling was not
supported by substantial evidence.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying the
same criteria that the district court used in the first instance.
Kemp v. G.D. Searle & Co., 103 F.3d 405, 407 (5th Cir. 1997). We
consult the applicable law in order to ascertain the material
factual issues, and we then review the evidence bearing on those
issues, viewing the facts and inferences to be drawn therefrom in
the light most favorable to the nonmovant. King v. Chide, 974
F.2d 653, 656 (5th Cir. 1992). Summary judgment is appropriate
only “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(c). We note, however, that “[t]he mere
existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient” to preclude summary
5
judgment; “there must be evidence on which the jury could
reasonably find for the plaintiff.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1985).
III. DISCUSSION
Gray argues that he was denied his right to counsel as
guaranteed by the Texas and U.S. Constitutions. He further
argues that the district court misapplied the substantial
evidence rule in its review of the Commission’s decision. We
address each of these issues in turn.
A. Right to Counsel
Gray first argues that the district court erred by applying
the substantial evidence rule despite an alleged constitutional
infirmity in the process. In support of this argument, Gray
contends that the IAD’s refusal to allow his attorney to be
present during all parts of the investigative process constituted
a denial of his rights under the U.S. Constitution and the Texas
Constitution.1 He claims that when he appeared before the IAD on
February 4, 1994, he had a right to counsel under the Sixth and
Fourteenth Amendments to the U.S. Constitution and under Article
1
Gray’s brief on appeal seems to allege a separate
violation of 42 U.S.C. § 1983 apart from his constitutional
claims. As the district court correctly recognized, Gray cannot
recover under § 1983 unless his constitutional rights were
violated. Because summary judgment was proper on Gray’s claim
that his constitutional rights were violated, his § 1983 claim
necessarily fails.
6
I, section 10 of the Texas Constitution. Gray further argues
that under the Fourteenth Amendment to the U.S. Constitution and
under Article I, sections 19 and 29 of the Texas Constitution,
the IAD’s refusal to allow his attorney to be present deprived
him of his right to due process as a person with a
constitutionally protected property interest in his job.2
The Sixth Amendment right to counsel attaches only during
criminal proceedings, and it is specific to the offense charged.
McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). Other courts that
have addressed this issue have held that a police officer has no
Sixth Amendment right to counsel at an internal affairs interview
2
Gray also asserts that the IAD deprived him of his
rights under the Fifth Amendment to the Constitution. Although
he includes this with his due process claims, the only cognizable
claim that Gray might have under the Fifth Amendment stems not
from the right to due process, but from the privilege against
self incrimination.
The Supreme Court has held that a Fifth Amendment violation
occurs when a public employee is discharged for refusing to
answer questions that are potentially incriminating and is
required to surrender constitutional immunity. Lefkowitz v.
Cunningham, 431 U.S. 801, 805 (1977). However, “the employee’s
rights are imperiled only by the combined risks of both
compelling the employee to answer incriminating questions and
compelling the employee to waive immunity from the use of those
answers.” Arrington v. County of Dallas, 970 F.2d 1441, 1446
(5th Cir. 1992). Article I, section 10 of the Texas Constitution
provides no greater protection in this area than the Fifth
Amendment does. Soto v. City of Laredo, 764 F. Supp. 448, 452-53
(S.D. Tex. 1991) (citing McKenna v. State, 671 S.W.2d 138, 139
(Tex. App.--Houston [1st. Dist] 1984, writ ref’d)). Gray does
not claim that the IAD required him to surrender his
constitutional immunity. Thus, the IAD did not violate Gray’s
privilege against self incrimination under either the Fifth
Amendment or Article I, section 10 of the Texas Constitution.
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or similar administrative proceeding where loss of liberty is not
threatened. See, e.g., Los Angeles Police Protective League v.
Gates, 579 F. Supp. 36, 41 (C.D. Cal. 1984) (holding that Sixth
Amendment right to counsel did not apply because no loss of
liberty was threatened); Wilson v. Swing, 463 F. Supp. 555, 560-
61 (M.D.N.C. 1978) (finding that Sixth Amendment right to counsel
did not attach because proceeding was purely civil in nature).
In this case, the IAD investigation was civil. The IAD
expressly informed Gray that the internal report would not be
used against him in subsequent criminal investigations.
Moreover, as to the possession of cocaine charge, Gray was
protected from prosecution by the Double Jeopardy Clause because
he had already been tried and acquitted. Therefore, no violation
of the Sixth Amendment occurred. Similarly, the absence of
counsel at the investigative hearing did not violate Gray’s
rights under Article I, section 10 of the Texas Constitution.
Francis v. State, 909 S.W.2d 158, 165 (Tex. App.--Houston [14th
Dist.] 1995, no writ) (noting that the right of counsel does not
attach until adversary proceedings against the individual have
begun).
Gray next argues that he was denied due process because the
IAD did not allow him to bring his attorney to the February 4,
1994 conference. He relies on Sayre v. Mullins, 681 S.W.2d 25
(Tex. 1984), arguing that the U.S. Constitution and the Texas
Constitution each afford public employees the right to be
8
represented by counsel at a grievance proceeding. This argument
lacks merit. Sayre concerned a post-termination grievance
proceeding. Id. at 26. The hospital-employer refused to allow
the plaintiff-employee’s attorney to be present during the
grievance proceedings, and then upheld the plaintiff’s dismissal.
Id. The plaintiff subsequently filed an action in state district
court seeking a declaratory judgment that the hospital had
violated her rights by refusing to allow her attorney to
participate in the hearings. Id. at 25. On appeal, the Texas
Supreme Court held that article 5154(c) of the Texas Revised
Civil Statutes, which governed the grievance procedure in Sayre,
did not restrict a grievant’s right to be represented by counsel.
Id. at 28.
Gray’s reliance on Sayre is misplaced. It is undisputed
that during the required grievance and disciplinary hearings Gray
was represented by an attorney. What is at issue in this case is
the right of the government to question its employee in the
course of an internal investigation regarding matters related to
his employment without an attorney present. Sayre did not
address this issue; it merely held that a labor relations statute
did not narrow the scope of a public employee’s right to counsel
during a grievance proceeding.
Gray points to no authority which indicates that he was
entitled to have an attorney present during the investigatory IAD
conference held on February 4, 1994. However, authority exists
9
to support the contention of the defendants-appellees that Gray
was not entitled to counsel under the Fourteenth Amendment. In
similar cases, courts have held that, “as a matter of law . . .
the due process clause of the Fourteenth Amendment provides no
right to counsel at [an] IAD interview.” Wilson, 463 F. Supp. at
561 (citing Haines v. Askew, 368 F. Supp. 369 (M.D. Fla. 1973),
aff’d without opinion, 417 U.S. 901 (1974)). Similarly, Gray was
not entitled to an attorney under Article I, sections 19 and 29
of the Texas Constitution. See Price v. City of Junction, Texas,
711 F.2d 582, 590 (5th Cir. 1983) (“It is clear that the
protection afforded under the procedural due process rights
granted by article I, section 19 [of the Texas Constitution], are
congruent with those in the Federal Constitution.”).
B. Application of the “Substantial Evidence” Rule
Gray next contends that the district court’s application of
the substantial evidence rule was faulty. He claims that the
district court erroneously granted summary judgment despite the
existence of genuine issues of material fact. We disagree.
Under Texas law, a local government employee who is removed
from his position by a final decision of the Commission may
appeal by filing a petition in a district court, which will then
conduct a trial de novo. TEX. LOC. GOV’T CODE ANN. § 158.037 (West
1988). In this context, however, a trial de novo requires only
that the district court conduct a review of the case under the
10
substantial evidence rule. See Firemen’s and Policemen’s Civil
Serv. Comm’n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984).
Thus, the district court must determine only “‘whether the
agency’s rule is free of taint of any illegality and is
reasonably supported by substantial evidence.’” Id. (quoting
Fire Dep’t of City of Fort Worth v. City of Fort Worth, 217
S.W.2d 664, 666 (Tex. 1949)). The party challenging the
Commission’s decision may offer new evidence that will aid the
trial court in determining whether, at the time of the
Commission’s order, there existed substantial evidence that
reasonably supported the order. Heard v. Incalcaterra, 702
S.W.2d 272, 275 (Tex. App.--Houston [1st. Dist.] 1985, writ ref’d
n.r.e.). Nevertheless, the Commission’s decision must be
affirmed unless the evidence as a whole indicates that reasonable
minds could not have reached the same conclusion. Arrellano v.
Texas Employment Comm’n, 810 S.W.2d 767, 771 (Tex. App.--San
Antonio 1991, writ denied).
The use of summary judgment in cases that are tried de novo
under the substantial evidence rule is entirely appropriate. Cf.
id. at 770-71. In the context of a motion for summary judgment,
however, the movant bears the burden of showing that substantial
evidence supports the Commission’s decision. See Turner v. City
of Carrollton Civil Serv. Comm’n, 884 S.W.2d 889, 894 n.4 (Tex.
App.--Amarillo 1994, no writ). Due to the nature of the
substantial evidence rule, the movant need only demonstrate to
11
the reviewing court that the Commission’s decision is “reasonably
supported by substantial evidence.” Brinkmeyer, 662 S.W.2d at
956 (quoting Fire Dep’t of City of Fort Worth, 217 S.W.2d at
666). Moreover, the evidence presented to the Commission might
“even preponderate against its own ruling, yet still be
‘substantial evidence,’ if it is more than a mere scintilla.”
McKinley Iron Works, Inc. v. Texas Employment Comm’n, 917 S.W.2d
468, 470 (Tex. App.--Fort Worth 1996, no writ) (citing City of El
Paso v. Public Utility Comm’n of Texas, 883 S.W.2d 179, 185 (Tex.
1994)).
As the district court properly noted, both sides in this
case rely on the same documents to support their arguments.
Moreover, the record contains adequate evidence to justify the
Commission’s finding that Gray’s dismissal was warranted either
on the ground of insubordination or on the ground that a
preponderance of the evidence indicated that he was in possession
of under twenty-eight grams of cocaine at the time of his arrest.
First, it is undisputed that Gray refused to answer any
questions at the February 4, 1994 hearing and that he failed to
prepare the report that the IAD subsequently ordered. Gray
contends that he did not know the subject of the requested
report, but testimony in the record contradicts that claim. In
reviewing the Commission’s decision, the court “may not
substitute its judgment for that of the agency on controverted
issues of fact. . . . Resolution of factual conflicts and
12
ambiguities is the province of the administrative body and it is
the aim of the substantial evidence rule to protect that
function.” Brinkmeyer, 662 S.W.2d at 956.
Second, although a jury acquitted Gray of the possession of
cocaine charge, the IAD investigation found that a preponderance
of the evidence indicated that he was aware of the cocaine being
in his car and that he therefore had possession of it. “When
there is substantial evidence which would support either
affirmative or negative findings the administrative order must
stand, notwithstanding the agency may have struck a balance with
which the court may differ.” Id. The new evidence that Gray
appended to his motion opposing summary judgment does not
indicate that the Commission’s findings on the cocaine charge or
the issue of insubordination were arbitrary or unreasonable.
“[O]ur inquiry is not whether the agency came to the proper fact
conclusion on the basis of conflicting evidence, but whether it
acted arbitrarily and without regard to the facts.” McKinley,
917 S.W.2d at 470. We therefore find that the trial court did
not err in its application of the substantial evidence rule or in
its decision to grant the motion of the defendants-appellees for
summary judgment.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
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district court.
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