Marilee Garcia v. Bexar County, Texas

• Court: Court of Appeals of Texas
• Decided: May 9, 2012
• Docket: 04-11-00552-CV
• Status: Published

Opinion

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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