Allen Lanier v. City of Laredo and Firefighters & Police Officers Civ. Serv. Com. of Laredo

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00191-CV

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

Opinion by: Rebeca C. Martinez, Justice

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

Delivered and Filed: April 24, 2013

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
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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.

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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
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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

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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. 1 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 intended to take

up and consider” the proposed demotion of Lanier on September 27, 1995. Lanier complains

that he did not receive this notice, or, alternatively, that the notice was given only eight days

before the meeting. The September 19, 1995 notice is not in the clerk’s record. Further, section

143.054 does not require notice of the commission’s meeting to consider whether probable cause

exists to support a requested demotion.

With respect to the October 17, 1995 public hearing before the Commission, the record

shows the City and the Commission fully complied with section 143.054’s notice requirements.

The record contains a letter dated September 27, 1995, from the Commission to Lanier stating

that the Commission met on September 27, 1995 to consider his proposed demotion and

determined that probable cause existed for the demotion. The letter notifies Lanier that a public

hearing on the demotion will be held before the Commission on October 17, 1995, more than ten

days away. The letter further advises Lanier of his right to elect to appeal to an independent

third party hearing examiner instead of to the Commission in accordance with Local Government

1
Lanier concedes that he was served with a copy of the letter dated March 8, 1995 from the Chief of the Laredo
Police Department recommending to the Commission that Lanier be demoted from the rank of captain to the rank of
investigator.

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Code Section 143.057, and states that if he appeals to a hearing examiner, he waives all rights to

appeal to district court except as provided by subsection (j) of Local Government Code section

143.057. Lanier acknowledged receipt of the letter by signing at the bottom and dating his

signature on September 27, 1995 at 8:45 a.m. Attached to the letter is also a “Final Order of the

Civil Service Commission” dated September 27, 1995, which recites the Commission’s finding

of probable cause that Lanier should be demoted. In addition, the record contains an affidavit by

Cesar R. Garza, Director and Secretary of the Commission, stating that the September 27, 1995

letter was hand-delivered to Lanier on that date. Thus, the City and the Commission

conclusively established that they fully complied with the statutory notice requirement for the

public hearing under section 143.054(c).

Having determined that the City and the Commission conclusively established they were

entitled to summary judgment on one of the theories advanced in their motion, we need not

address the other ground for summary judgment relief. We conclude the trial court properly

granted summary judgment based on the first ground raised by the City and the Commission.

Kelley, 284 S.W.3d at 806.

Finally, the City and the Commission ask us to impose damages as appellate sanctions

pursuant to Rule 45 of the Texas Rules of Appellate Procedure, claiming that Lanier’s appeal is

frivolous. TEX. R. APP. P. 45. The decision to grant or deny sanctions under Rule 45 is a matter

of discretion which we “exercise[] with prudence and caution and only after careful deliberation

in truly egregious circumstances.” Gard v. Bandera Cnty. Appraisal Dist., 293 S.W.3d 613, 619

(Tex. App.—San Antonio 2009, no pet.). Rule 45 authorizes recovery of damages only if an

appeal is objectively frivolous and injures the appellee. Id. An appeal is frivolous when it is

pursued in bad faith or when there are no reasonable grounds to support a belief that the

judgment would be reversed. Id. As long as an appellate argument has a “reasonable basis in
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law and constituted an informed, good faith challenge to the trial court’s judgment,” an award of

sanctions would not be appropriate. Herring v. Welborn, 27 S.W.3d 132, 145 (Tex. App.—San

Antonio 2000, pet. denied) (citing Gen. Elec. Credit Corp. v. Midland Cent. Appraisal Dist., 826

S.W.2d 124, 125 (Tex. 1991) (per curiam)). Although we conclude Lanier’s assertion that the

Hearing Examiner lacked jurisdiction is without merit, we decline to find the appeal objectively

frivolous. Accordingly, we deny the request for sanctions.

Based on the foregoing reasons, we affirm the trial court’s judgment.

Rebeca C. Martinez, Justice

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