Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-15-00341-CV
BEXAR COUNTY CIVIL SERVICE COMMISSION, Appellant
v.
Carmella GUERRERO, Appellee
From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2012-CI-08758 Honorable Antonia Arteaga, Judge Presiding
Opinion by: Jason Pulliam, Justice
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Jason Pulliam, Justice
Delivered and Filed: August 17, 2016
AFFIRMED
INTRODUCTION
This appeal arises from Carmella Guerrero’s petition to Bexar County District Court
seeking judicial review of a portion of an administrative order rendered by the Bexar County Civil
Service Commission (the Commission). After trial on the merits, the district court entered final
judgment overturning the contested portion of the Commission’s order and awarding Guerrero all
relief requested. The Commission now appeals asserting the district court did not properly apply
the substantial-evidence standard of review. Specifically, the Commission asserts the district 04-15-00341-CV
court’s erroneous application of the appropriate standard of review is demonstrated by the fact that
the Commission acted within its authority, Guerrero was afforded due process, and substantial
evidence existed to support the Commission’s action of retaining Guerrero in her demoted position,
salary and classification. We affirm the district court’s judgment.
BACKGROUND
Guerrero has been employed as a Bexar County employee since 1993. On October 1, 2010,
Guerrero was promoted to the position of IT Services Manager, classified as an E–11 position.
Effective November 30, 2010, Guerrero was demoted to the position of Technology Business
Analyst, classified as an E–5 position. Guerrero appealed her demotion by filing a complaint with
the Commission on December 10, 2010. In her appeal, Guerrero sought “reinstatement of my
former position and back pay.”
On October 1, 2011, before the Commission reached a decision, the Bexar County
Commissioner’s Court eliminated the IT Services Manager position. On April 26, 2012, the
Commission issued its ruling overturning Guerrero’s demotion, finding specifically that “the
demotion of Carmella Guerrero should be overturned.” The Commission granted Guerrero back
pay and benefits for the difference in pay from the time of demotion “until [her] position was
eliminated in the budget on October 1, 2011.” The Commission further directed that Guerrero
remain in her current position as Technology Business Analyst at her current classification and
salary. At the end of the hearing, the Chairperson of the Commission, Gina Elliott, stated, “there
is no position to put you. The E-11 position that you were in is abolished.”
Guerrero appealed to the Bexar County District Court for judicial review of the portion of
the Commission’s order in which the Commission retained Guerrero in her current position,
classification and salary. In her suit, Guerrero sought reinstatement to “her former pre-demotion
position”, back pay, reinstatement to her “pre-demotion salary” until her retirement or voluntary -2- 04-15-00341-CV
work cessation, and reclassification to an E-11 employment status. On December 12, 2014, the
district court overturned the appealed portion of the Commission’s order in which the Commission
directed that Guerrero remain in her current position as Technology Business Analyst at her current
classification and salary. The District Court ordered Guerrero reinstated to her position as IT
Services Manager and to a level E-11 classification and salary and awarded back pay and benefits
in addition to pre and post judgment interest. The district court entered findings of fact and
conclusions of law on April 9, 2015. The Commission now appeals.
STANDARD OF REVIEW
A county employee who has been demoted from the employee’s position may appeal such
demotion by filing a complaint with the Bexar County Civil Service Commission. See TEX. LOC.
GOV’T CODE ANN. §§ 158.009, 158.012(a) (West 2008). The employee may appeal a final
decision of the Commission by filing a petition in a district court in the county. TEX. LOC. GOV’T
CODE ANN. § 158.012(a). “[T]he judgment of the district court is appealable as in other civil
cases.” TEX. LOC. GOV’T CODE ANN. § 158.012(b).
Texas recognizes a range of standards by which a district court must review administrative
decisions: (1) trial de novo; (2) substantial evidence rule; and (3) mixed review of substantial
evidence de novo. In re Edwards Aquifer Auth., 217 S.W.3d 581, 586 (Tex. App.—San Antonio
2006, no pet.); G.E. Am. Commc’n v. Galveston Cent. Appraisal Dist., 979 S.W.2d 761, 764 (Tex.
App.—Houston [14th Dist.] 1998, no pet.). Pure trial de novo review permits the reviewing district
court to conduct an independent fact-finding proceeding in which new evidence is taken and all
issues are determined anew. In re Edwards Aquifer Auth., 217 S.W.3d at 586. Review utilizing
the substantial evidence rule authorizes the reviewing court to consider only the factual record
made before the administrative body and determine if the administrative body’s findings,
conclusions and action are reasonably supported by substantial evidence. Id. “Substantial
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evidence de novo review, a hybrid standard, allows the reviewing court to hear additional evidence
in existence at the time of the administrative hearing, regardless of whether it was actually
introduced at the administrative hearing.” Id.
Judicial review on appeal of a final decision of a county civil service commission, as in
this case, is conducted using the “substantial evidence rule”. TEX. LOC. GOV’T CODE ANN.
§ 158.012(b). The Texas Local Government Code goes further to define this “review under the
substantial evidence rule.” Id. at § 158.0121 (West 2008). Under this guidance,
the district court may not substitute its judgment for the judgment of the commission on the weight of the evidence on questions committed to the commission’s discretion but:
(1) may affirm the Commission’s decision in whole or in part; and (2) shall reverse or remand the case for further proceedings if substantial rights of the petitioner have been prejudiced because the Commission’s findings, inferences, conclusions, or decisions are: (A) in violation of a constitutional or statutory provision; (B) in excess of the Commission’s authority; (C) made through unlawful procedure; (D) affected by other error of law; (E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or (F) arbitrary or capricious, characterized by abuse of discretion, or clearly an unwarranted exercise of discretion.
Id.; see also TEX. LOC. GOV’T CODE ANN. § 158.012(b). Following this established guideline, the
substantial-evidence standard of review allows the reviewing court to address aspects of the
Commission’s decision other than the sole issue whether it is supported by substantial evidence.
TEX. LOC. GOV’T CODE ANN. § 158.0121; see Tex. Dep’t of Ins. v. State Farm Lloyds, 260 S.W.3d
233, 242 (Tex. App.—Austin 2008, no pet.) (referencing TEX. GOV’T CODE ANN. § 2001.174,
which is identical to TEX. LOC. GOV’T CODE ANN. § 158.012); Dep’t of Pub. Safety v. Varme, 262
S.W.3d 34, 38 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (same).
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The party appealing to the district court has the burden to show the Commission’s decision
prejudiced a substantial right and violated at least one of the six elements enumerated in Section
158.0121. Dep’t of Pub. Safety v. Varme, 262 S.W.3d at 38; see also TEX. LOC. GOV’T CODE ANN.
§ 158.0121(2). Because judicial review under Section 158.0121 utilizes the substantial evidence
rule, the district court must give significant deference to the Commission’s factual findings,
inferences, conclusions, and decisions. R.R. Comm’n of Texas v. Torch Operating Co., 912 S.W.2d
790, 792–93 (Tex. 1995); Dep’t of Pub. Safety v. Hirschman, 169 S.W.3d 331, 336 (Tex. App.—
Waco 2005, pet. denied). With regard to findings of fact, the district court may not substitute its
judgment for that of the Commission as to the weight of the evidence or resolution of disputed
facts. TEX. LOC. GOV’T CODE ANN. § 158.0121(2); see also Tex. Health Facilities Comm’n v.
Charter Medical–Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984). Thus, judicial review under the
substantial evidence rule presents purely a legal issue, and a trial of the fact issues by a judge or
jury is avoided. In re Edwards Aquifer Auth., 217 S.W.3d at 586–87 (citing Bank of North America
v. State Banking Board, 492 S.W.2d 458, 459 (Tex. 1973)). If the reviewing district court
determines substantial evidence supports the Commission’s findings on any of the six matters
listed in Section 158.0121(2), the administrative decision must be upheld. See Dep’t of Pub. Safety
v. Pruitt, 75 S.W.3d 634, 639–40 (Tex. App.—San Antonio 2002, no pet.).
An appellate court’s review of the district court’s determination under Section 158.012 and
158.0121 is undertaken de novo. Dep’t of Pub. Safety v. Pruitt, 75 S.W.3d at 640; Dep’t of Pub.
Safety v. Cuellar, 58 S.W.3d 781, 783–84 (Tex. App.—San Antonio 2001, no pet.). In such a
review, the appellate court must review questions of law without affording any deference to the
district court’s conclusion. Dep’t of Pub. Safety v. Pruitt, 75 S.W.3d at 639–40; Dep’t of Pub.
Safety v. Cuellar, 58 S.W.3d at 784. The question whether the Commission’s determination
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satisfies the substantial evidence rule as outlined in Section 158.0121 is one of law. Dep’t of Pub.
Safety v. Hirschman, 169 S.W.3d at 336–37 (referencing TEX. GOV’T CODE ANN. § 2001.174).
ANALYSIS
On appeal to the district court, Guerrero argued the Commission’s order that she remain in
the demoted position, classification and salary violated all six elements of Section 158.0121(2).
The district court reversed the Commission’s order, finding it violated four of the six listed
elements: (A) violated a constitutional or statutory provision; (B) was in excess of the
Commission’s authority; (C) was made through unlawful procedure; and (E) was not reasonably
supported by substantial evidence. As stated previously, we review the district court’s judgment
de novo and utilize the substantial-evidence standard of review. Dep’t of Pub. Safety v. Pruitt, 75
S.W.3d at 640.
On appeal to this court, the Commission contends the district court abused its discretion by
disregarding the substantial-evidence standard of review, and instead, substituted its own decision.
The Commission argues this is evidenced by the fact that the administrative record shows it acted
within its authority in ordering that Guerrero remain in her demoted position. 1 The Commission
contends it did not have authority to order that Guerrero be reinstated to her pre-demotion position
and classification because the position had been abolished. In addition, the Commission asserts
Guerrero was afforded due process. 2 Finally, the Commission contends its action was reasonably
supported by substantial evidence. 3 Because it awarded Guerrero all of the relief it possibly could
due to the elimination of her position, the Commission contends the facts and law support its
1 This argument pertains to the district court’s reversal based upon the substantial evidence rule outlined in Section 158.0121, Factor (2)(B). 2 This argument pertains to the district court’s reversal based upon the substantial evidence rule outlined in Section 158.0121, Factor (2)(A). 3 This argument pertains to the district court’s reversal based upon the substantial evidence rule outlined in Section 158.0121, Factor (2)(E).
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decision to overturn Guerrero’s demotion, yet require that she remain in her current position,
classification and salary. Therefore, the Commission contends the district court abused its
discretion when it ignored the decision of the Commission and substituted its own judgment. 4
1. The Commission’s Third Issue on Appeal: Its Action was Reasonably Based Upon Substantial Evidence
We begin analysis with the Commission’s third issue on appeal, argument that its action,
or order that Guerrero remain in her demoted position, classification and salary, was supported by
substantial evidence. The Commission contends the substantial evidence supporting this action is
the fact that Guerrero’s position was eliminated.
Applicable Law
Substantial evidence is more than a mere scintilla of evidence, but less than a
preponderance of the evidence. R.R. Comm’n of Tex. v. Torch Operating Co., 912 S.W.2d at 792–
93. In determining whether the Commission’s conclusions or decisions are reasonably supported
by substantial evidence as required by Section 158.0121(2)(E), the issue for the reviewing district
court is not whether the Commission reached the correct conclusion, but rather whether “some
reasonable basis exists in the record for the action taken by the [Commission].” City of El Paso v.
Public Util. Comm’n, 883 S.W.2d 179, 185 (Tex. 1994); Charter Medical–Dallas, Inc., 665
S.W.2d at 452. Thus, the existence of substantial evidence turns on the question of reasonableness.
City of El Paso v. Public Util. Comm’n, 883 S.W.2d at 185 (stating, “At its core, the substantial
evidence rule is a reasonableness test or a rational basis test.”). Thus, in conducting review for
4 While the Commission does not specifically challenge the district court’s reversal based upon Section 158.0121(2)(C), that is, it was “made through unlawful procedure”, the Commission’s arguments with regard to Factors (2)(A), (B), and (E) do incorporate this challenge and can be liberally construed to pertain to Factor (2)(C). See TEX. R. APP. P. 38.9; Davis Apparel v. Gale-Sobel, a Div. of Angelica Corp., 117 S.W.3d 15, 19 (Tex. App.— Eastland 2003, no pet.) (Court of Appeals is permitted to consider argument contained in appellant’s brief that was not expressly stated in appellant’s appellate issues under the liberal rules of construction applicable to briefs.); Gutierrez v. Hachar’s Dep’t Store, 484 S.W.2d 433, 434 (Tex. Civ. App.—San Antonio 1972, writ ref’d n.r.e.) (same).
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substantial evidence, the district court must determine whether the evidence as a whole is such that
reasonable minds could have reached the conclusion the Commission reached in order to justify
taking the disputed action. City of El Paso v. Pub. Util. Comm’n of Tex., 883 S.W.2d at 186;
Charter Medical–Dallas, Inc., 665 S.W.2d at 452-53.
Application
Most administrative appeals in similar circumstances focus on the issue whether the
Commission’s decision to uphold a demotion is supported by substantial evidence. However, in
this case, the Commission overturned Guerrero’s demotion, and the Commission concedes its
decision to overturn Guerrero’s demotion is final and binding.
A court conducting substantial evidence review of an administrative order must presume
the agency decision is valid and that substantial evidence supports it. See Collingsworth Gen.
Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998); Tex. Dep’t of Pub. Safety v. Varme, 262
S.W.3d at 38–39. In addition, “[t]he findings, inferences, conclusions, and decisions of an
administrative agency are presumed to be supported by the substantial evidence.” City of El Paso
v. Pub. Util. Comm’n of Tex., 883 S.W.2d at 185.
In this administrative appeal, the Commission, itself, overturned Guerrero’s demotion.
Neither party challenges this conclusion in any way, nor does either party seek judicial review of
this determination. Therefore, this conclusion that Guerrero’s demotion is overturned is presumed
valid and is binding on this court, and we begin judicial review with this foundational finding and
conclusion. See City of El Paso v. Pub. Util. Comm’n of Tex., 883 S.W.2d at 185–86; Charter
Medical–Dallas, Inc., 665 S.W.2d at 453.
Accepting and beginning with the Commission’s determination that Guerrero’s demotion
was validly overturned, we also begin with the premise that substantial evidence must, necessarily,
support this decision. See City of El Paso v. Pub. Util. Comm’n of Tex., 883 S.W.2d at 185–86. -8- 04-15-00341-CV
Thus, the disputed issue on judicial review becomes the reasonableness of the Commission’s
action in retaining Guerrero in her demoted position, classification and salary following its
resolution of the disputed facts and ultimate decision to overturn Guerrero’s demotion, i.e.,
whether reasonable minds could have reached the conclusion the Commission reached in order to
take the disputed action. See City of El Paso v. Pub. Util. Comm’n of Texas, 883 S.W.2d at 186;
Charter Medical–Dallas, Inc., 665 S.W.2d at 452.
The Commission’s action in keeping Guerrero in her current demoted position at her
demoted classification and salary effectively repeals its decision to overturn the demotion, in spite
of the reasonable basis presumed to support this decision. See Guerrero v. Bexar County Civil
Serv. Comm’n, 04-12-00523-CV, 2012 WL 6728260, at *1 (Tex. App.—San Antonio Dec. 28,
2012, no pet.) (holding “Under the circumstances of this case, Guerrero is clearly demoted. She
previously held an E–11 position and currently holds an E–5 position with a lower pay.”). Because
Guerrero, effectively, remained demoted, reasonable minds could not have reached the
irreconcilable conclusion the Commission reached in retaining Guerrero in her demoted position
and salary. See City of El Paso v. Pub. Util. Comm’n of Texas, 883 S.W.2d at 186; Charter
Medical–Dallas, Inc., 665 S.W.2d at 452.
Upon conclusion that the Commission’s action violated a factor in Section 158.0121(2),
reversal is warranted only if such action also prejudiced a substantial right of Guerrero. TEX. LOC.
GOV’T CODE ANN. § 158.0121(2); see also Bexar County Civil Serv. Comm’n v. Casals, 63 S.W.3d
57, 61 (Tex. App.—San Antonio 2001, no pet.).
Did the Commission’s decision affect a substantial right?
A “substantial right” is an essential right capable of legal enforcement and protection, as
distinguished from a mere technical or procedural right. Right (substantial right), BLACK’S LAW
DICTIONARY (8th Ed. 2004), p. 1349.
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An employee’s salary grade and classification affect annual income, benefits received and
retirement benefits. Such a right to receive a certain salary and retain a certain classification is an
essential right capable of legal protection. See id.; see also Bexar County Civil Serv. Comm’n v.
Casals, 63 S.W.3d at 61.
For these reasons, we conclude the Commission’s decision to keep Guerrero in the demoted
position at the corresponding classification and salary violated a substantial right.
Was Guerrero’s substantial right prejudiced?
The Commission’s decision to overturn Guerrero’s demotion, yet to not reinstate her
obviously prejudiced Guerrero’s substantial right to the benefits and salary it inherently determined
she was due. Therefore, we conclude the Commission’s decision to retain Guerrero in her demoted
position, salary and classification prejudiced a substantial right.
Conclusion
Because this court concludes the Commission’s action taken of retaining Guerrero in her
demoted position, salary, and classification was not supported by substantial evidence and such
action prejudiced a substantial right of Guerrero, the Commission’s third issue on appeal is
overruled.
2. First Issue on Appeal: Whether the Commission Acted Within Its Authority
Having affirmed the district court’s reversal of the Commission’s action based upon one
of the factors listed in 158.0121(2), this court need not address the remaining arguments on appeal.
However, the Commission’s first issue on appeal can be construed to relate to or potentially dispel
this court’s previous discussion and conclusion regarding the issue whether substantial evidence
supported the Commission’s action in retaining Guerrero in her demoted position, classification
and salary. Therefore, this court will address the Commission’s first issue on appeal as well.
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In its first issue on appeal, the Commission argues that even though it overturned
Guerrero’s demotion, it held no authority to order that Guerrero be reinstated to her pre-demotion
position, classification and salary because the Bexar County Commissioner’s Court eliminated her
position. 5
First, the evidence in the record reveals the Commissioner’s Court only eliminated
Guerrero’s position as IT Services Manager. This elimination of position did not affect Guerrero’s
pre-demotion classification and salary, nor did it preclude the Commission from reinstating
Guerrero to her pre-demotion classification and salary. Therefore, the elimination of Guerrero’s
position could not constitute a rational basis of precluding the Commission’s reinstatement to her
pre-demotion classification and corresponding salary. See City of El Paso v. Pub. Util. Comm’n
of Texas, 883 S.W.2d at 186; Charter Medical–Dallas, Inc., 665 S.W.2d at 452–53.
Second, the Commission did have authority to reinstate Guerrero following determination
that her demotion should be overturned. The Commission’s authority to act in accordance with its
finding and conclusion to overturn Guerrero’s demotion and provide back pay is derived from the
Local Government Code and from its own administrative rules. See generally TEX. LOC. GOV’T
CODE ANN. § 158.001 et seq.; BEXAR COUNTY CIVIL SERVICE COMMISSION RULES AND
REGULATIONS, Policy Number 7.6.14. Section 158.009 of the Local Government Code establishes
the “Powers of the Commission”, and therein states the Commission shall adopt and enforce rules
regarding disciplinary actions and grievance procedures. TEX. LOC. GOV’T CODE ANN. § 158.009
(West 2008). In accordance with Section 158.009, the Commission adopted the “Civil Service
Commission Rules and Regulations”, specifically Policy Number 7.6.14, titled “Suspension,
5 Essentially, this argument also corresponds to Section 158.0121(2)(B), in that the Commission argues that it would have acted in excess of its authority if it had reinstated Guerrero to her pre-demotion position, classification and salary because the position was eliminated. See TEX. LOC. GOV’T CODE ANN. § 158.0121(2)(B).
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Demotion or Termination – Appeal & Hearing”. Under the subtitle “Hearing”, component 17
states, “[i]f the employee is to receive back pay by order of the Commission, the employee shall
receive full compensation at the rate of pay that was provided for their position at the time of their
appeal or the amount of compensation considered fair. . . . Should the office or department refuse
to reinstate the employee as ordered by the Commission, the employee shall be entitled to their
full salary just as though they had been reinstated as ordered.” BEXAR COUNTY CIVIL SERVICE
COMMISSION RULES AND REGULATIONS, Policy Number 7.6.14, Hearing (17).
Thus, Policy Number 7.6.14, requires that upon concluding Guerrero’s demotion should
be overturned and she should receive back pay, Guerrero must receive full compensation at her
rate of pay at the time she filed the appeal of her demotion. Policy Number 7.6.14 directs, and
therefore, provides the Commission the authority to reinstate Guerrero. The policy goes further to
provide a resolution should Guerrero’s department refuse to reinstate her as specifically directed
by the Commission, that is, she must continue to receive her full salary (and presumptively her
corresponding pre-demotion classification to be entitled to this salary).
Therefore, the directive in Policy No. 7.6.14 that Guerrero continue to receive full salary
as though she was reinstated to her pre-demotion position provides the Commission authority to
reinstate her at her pre-demotion salary and classification even though her specific position no
longer exists. This policy precludes the dichotomous situation that occurred in this case, in that
the Commission overturned Guerrero’s demotion, yet ordered that she remain in her demoted
position, classification and salary.
For this reason, the Commission’s first argument on appeal must fail and does not dispel
this court’s determination that the Commission’s action of retaining Guerrero in the demoted
position, classification and salary was not reasonably supported by the substantial evidence.
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Because this court affirms the district court’s judgment based upon Factor (2)(E), finding
the Commission’s action of retaining Guerrero in the demoted position, classification and salary
was not supported by substantial evidence, it need not reach the Commission’s argument on appeal
that its action did not violate Guerrero’s due process rights (correspondent to Factor (2)(A)).
The record reveals the Commission overturned Guerrero’s demotion with no attenuation,
and this decision is final and binding. The reasonable action upon making this determination is to
reinstate Guerrero to her pre-demotion position, classification and salary. The Commission’s
authority to reinstate Guerrero derives from the Local Government Code and its own Policy
Number 7.6.14.
Because we conclude the Commission’s action of retaining Guerrero in her demoted
position, salary and classification is not reasonably supported by the substantial evidence, and this
error prejudiced a substantial right, we affirm the district court’s judgment.
Jason Pulliam, Justice
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