CITY OF HOUSTON FIRE FIGHTERS' v. Morris

949 S.W.2d 474, 1997 WL 377984
Court of Appeals of Texas·Decided August 21, 1997·No. 14-95-00933-CV·Published·Cited by 6 cases

Opinions

[475]*475MAJORITY OPINION

EDELMAN, Justice.

In this police disciplinary action, the City of Houston Fire Fighters’ and Police Officers’ Civil Service Commission (the “Commission”), the City of Houston, Texas, and Sam Nuehia, in his official capacity as Chief of Police (the “Chief’) of the Houston Police Department, (the “Department”) (collectively, the “City”) appeal a summary judgment granted in favor of Adolph R. Morris on the grounds that (1) the “Chiefs complaint” against Morris and the written interrogation based on it did not violate section 143.123 of the Texas Local Government Code; and (2) Morris’ appeal to the District Court was not timely filed. We reverse and remand with instructions to dismiss.

Background

On November 5, 1992, the Department initiated an investigation to determine whether Morris had abused his authority by verbally threatening Yona R. Bell, the mother of his daughter. On November 6, during surveillance by the Internal Affairs Division of the Department (the “IAD”), Morris was observed, while on duty, taking a marked patrol unit outside the city limits to pick up his daughter for visitation.1

In January of 1993, IAD began a written interrogation by serving Morris with a complaint and a 48-hour notice to respond in writing. Morris provided a written response to the allegations and later submitted additional information at the Department’s request. In April, after this interrogation and the IAD’s factual findings were completed, the Chief issued a written reprimand to Morris stating:

[O]n or about November 6, 1992, ... [Morris] failed to follow proper procedures when [he] went to pick up [his] daughter while on duty and in uniform transport her to [his] residence. Further investigation revealed that [Morris] used a marked police vehicle to transport [his] daughter from her residence, ... which is outside of the incorporated city limits.[2]

Although Morris admitted these allegations in response to requests for admissions, he subsequently appealed the reprimand to the Department, a grievance examiner, and the Commission,3 all of whom denied him relief.

In September of 1993, Morris filed a petition in district court to appeal the Commission order and for declaratory judgment. The City subsequently filed a motion for summary judgment claiming that Morris’ cause of action was barred by the statute of limitations. Morris filed a cross motion for summary judgment claiming that the Commission had no jurisdiction to rule on the written reprimand because the Chiefs complaint and "written interrogation did not comply with section 143.123 of the Texas Local Government Code.

In June of 1995, the trial court granted Morris’ motion for summary judgment and entered an order providing, among other things, that the Commission’s order was void for lack of jurisdiction due to the Department’s non-compliance with section 143.123;4 [476]*476and that the written reprimand should be overturned and removed from Morris’ personnel file for all purposes.

Standard of Review

A movant for summary judgment has the burden to show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). To be entitled to summary judgment, a defendant must either (1) conclusively negate at least one essential element of each of the plaintiffs causes of action, or (2) conclusively establish each element of an affirmative defense to each claim. Johnson Co. Sheriff’s Posse v. Endsley, 926 S.W.2d 284, 285 (Tex.1996). In reviewing a summary judgment, the nonmovant’s evidence is accepted as true, and all doubts regarding the evidence are resolved and all inferences indulged in the nonmovant’s favor. Johnson Co., 926 S.W.2d at 285. A summary judgment may be affirmed on any ground asserted in the motion that has merit. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 627 (Tex.1996).

When both parties move for summary judgment, the non-prevailing party may appeal both the granting of the prevailing party’s motion as well as the denial of its own. Holmes v. Morales, 924 S.W.2d 920, 922 (Tex.1996). The court of appeals may affirm the trial court’s summary judgment or reverse and render judgment on the non-prevailing party’s motion. Id. The appeals court should review the summary judgment evi-denee presented by both sides, determine all questions presented, and render such judgment as the trial court should have rendered. Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997).

Statute of Limitations

In its fourth point of error, the City claims that the trial court erred in denying its motion for summary judgment because Morris’ cause of action was barred by the statute of limitations. Because this point is dispositive of the appeal, we address it first.

To appeal the decision of the Civil Service Commission to the District Court, a police officer may file a petition in district court asking that the decision be set aside. Tex. Loc. Gov’t Code Ann. § 143.015(a) (Vernon 1988). Importantly, however, “The petition must be filed within 10 days after the date the final commission decision: (1) is sent to the ... police officer by certified mail; or (2) is personally received by the ... police officer or by that person’s designee.” Id.5 (emphasis added).

In this case, the final commission decision was sent to Morris by certified mail on September 2, 1993. Because Morris filed his petition with the district court on September 20, more than ten days after it was sent, the City claims that Morris’ petition was not timely filed under section 143.015(a)(1). Morris responds that he did not receive the decision until September 10, as evidenced by the properly addressed Re[477]*477turn Receipt card,6 and he filed his appeal on September 20, within ten days of his actual receipt pursuant to section 143.015(a)(2). Thus, the issue in this case is whether the phrase “personally received” in section 143.015(a)(2) applies to notification sent by certified mail under subsection (a)(1).

On the one hand, a court should not read a statute to create an absurd result. Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex.1996).7 Similarly, too literal a construction of a statute, which would prevent the enforcement of it according to its true intent, should be avoided. Id.

On the other hand, where the language of a statute is unambiguous, courts must seek the intention of the Legislature as found in the plain meaning of the words used. Memorial Hospital — The Woodlands v. McCown, 927 S.W.2d 1, 2 (Tex.1996).

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CITY OF HOUSTON FIRE FIGHTERS' v. Morris, 949 S.W.2d 474, 1997 WL 377984 (Tex. Ct. App. 1997).

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CITY OF HOUSTON FIRE FIGHTERS' v. Morris
949 S.W.2d 474 (Court of Appeals of Texas, 1997)