MEMORANDUM OPINION
No. 04-11-00552-CV
Marilee GARCIA,
Appellant
v.
BEXAR COUNTY, Texas,
Appellee
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CI-12867
Honorable Peter A. Sakai, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Marialyn Barnard, Justice
Delivered and Filed: May 9, 2012
AFFIRMED
Appellant, Marilee Garcia, appeals the judgment of the trial court affirming an order of
the Bexar County Civil Service Commission (“Commission”). The Commission’s order upheld
Garcia’s termination from employment with the Bexar County Sheriff’s Office (“Sheriff’s
Office”). We affirm.
04-11-00552-CV
BACKGROUND
Garcia was dismissed from her position as a detention lieutenant at the Sheriff’s Office
for numerous violations of the Bexar County Sheriff’s Civil Service Commission Rules and
Regulations (“Rules”) and the Bexar County Sheriff’s Office Manual of Policy and Procedure
(“Policies”). These violations alleged abuse of office and misuse of Bexar County (“County”)
personnel and equipment, used for her personal benefit, while Garcia worked an additional job
for a private security company. Garcia appealed her termination to the Commission. On July
15, 2008, the Commission held a hearing in which the Sheriff’s Office presented evidence
establishing that from 2001 through 2004, Garcia violated numerous Rules and Policies while
conducting her personal business during working hours and misused the County’s equipment and
personnel resources. Following the hearing, the Commission upheld Garcia’s termination for
violations of various provisions of the Rules and Policies.
Garcia then sued the County in district court to set aside the Commission’s order and
request reinstatement. Following the submission of trial briefs by both parties, the trial court
held a hearing. After taking the case under advisement, the trial court granted final judgment for
the County, upholding the Commission’s decision.
DISCUSSION
In three issues on appeal, Garcia contends the disciplinary action against her was barred
by the limitations in Bexar County Sheriff’s Civil Service Rule 9.18. Rule 9.18 states:
No disciplinary action for non-criminal activity shall be initiated against
an employee for an act or conduct which occurred more than 90 days prior to the
service of the “Notice of Proposed Disciplinary Action” or written reprimand
upon the employee, unless shown in the investigation of non-criminal activity that
is deemed to warrant disciplinary action, that non-criminal conduct was actively
concealed.
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First, Garcia asserts the County presented insufficient evidence at the Commission’s
hearing that her alleged misconduct occurred within the ninety days prior to her being served the
County’s Notice of Proposed Disciplinary Action. Second, Garcia argues that, absent the
admission of impermissible hearsay, there was insufficient evidence to demonstrate the County
met the ninety day limitations in Rule 9.18. Third, Garcia complains that, absent an eyewitness
account of misconduct occurring within ninety days, there was insufficient evidence to
demonstrate the limitations in Rule 9.18 were met. The County, however, counters that Garcia
waived her right to complain about Rule 9.18 on appeal because she failed to preserve her
complaints at the Commission hearing. We agree with the County.
In order to preserve a complaint for appellate review, the complaint must be made to the
trial court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a). Many sound
reasons underlie this rule. Zertuche v. Bexar Cnty., No. 04-08-00895-CV, 2009 WL 2183631, at
*3 (Tex. App.—San Antonio July 22, 2009, pet. denied) (citing Beall v. Ditmore, 867 S.W.2d
791, 793–94 (Tex. App.—El Paso 1993, writ denied)). “First, fairness to all parties requires a
litigant to advance his complaints at a time when there is an opportunity to respond or cure
them.” Beall, 867 S.W.2d at 794. “Second, reversing a case for error not raised in a timely
fashion permits the losing party to second guess its tactical decisions after they do not produce
the desired result.” Id. “Finally, judicial economy requires that issues be raised first in the trial
court in order to spare the parties and the public the expense of a potentially unnecessary
appeal.” Id. Additionally, a party cannot lead a trial court into error and then later complain
about it on appeal. Zertuche, 2009 WL 2183631, at *3 (citing Union City Body Co., Inc. v.
Ramirez, 911 S.W.2d 196, 202 (Tex. App.—San Antonio 1995, orig. proceeding)). “Although
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the text of rule 33.1(a) is directed at preservation at the trial court level, the reasons for the rule
apply equally in the context of the Commission’s hearing.” Id.
Here, there is nothing in the record of the hearing before the Commission to indicate
Garcia lodged an objection based on Rule 9.18. The hearing lasted at least nine hours and Garcia
was present and represented by counsel. Garcia’s counsel actively participated in the hearing by
presenting witnesses and evidence on Garcia’s behalf, cross-examining opposing witnesses and
making several evidentiary and procedural objections. However, the record does not indicate
Garcia’s counsel made a Rule 9.18 challenge “by a timely request, objection, or motion.” See
TEX. R. APP. P. 33.1(a). Instead, the first time Garcia’s counsel complained about the Rule 9.18
limitations was three years after the Commission’s hearing in Garcia’s trial brief to the district
court. As a result, “[b]ecause the Commission did not have the chance to address the issue,
neither the district court nor this court can do so.” Simpson v. Indus. Indem. Co. (Fremont), No.
11-00-00047-CV, 2000 WL 34233679, at *2 (Tex. App.—Eastland Nov. 2, 2000, no pet.).
The concept of fairness to all parties requires Garcia to advance her complaints at a time
when the County could respond to or cure the problem. Zertuche, 2009 WL 2183631, at *3. We
do not find in the record, and Garcia does not cite in her appellate brief, where she preserved her
complaint at the Commission’s hearing. Accordingly, she has not preserved her complaints for
appellate review.
CONCLUSION
We overrule Garcia’s issues on appeal and affirm the judgment of the trial court.
Sandee Bryan Marion, Justice
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