Thompson v. Cherokee Water Co.

6 S.W.3d 343, 1999 Tex. App. LEXIS 8292, 1999 WL 1016733
CourtCourt of Appeals of Texas
DecidedNovember 5, 1999
DocketNo. 06-99-00029-CV
StatusPublished

This text of 6 S.W.3d 343 (Thompson v. Cherokee Water Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. Cherokee Water Co., 6 S.W.3d 343, 1999 Tex. App. LEXIS 8292, 1999 WL 1016733 (Tex. Ct. App. 1999).

Opinions

OPINION

CORNELIUS, Chief Justice.

David Thompson sued his employer, Cherokee Water Company, for wrongful termination. Thompson contended that Cherokee terminated his employment because of his refusal to violate the law, and that his termination was therefore wrongful under an exception to the employment at will doctrine. See Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985). The trial court rendered summary judgment against Thompson. We affirm the judgment.

Thompson was a private security officer who worked exclusively for Cherokee. Cherokee is a corporate residential community that currently has over 700 residents who live around Lake Cherokee in Gregg and Rusk Counties. Thompson is certified as a peace officer and is also a reserve deputy of the Gregg County Sheriffs Department. It is undisputed that Thompson was an at-will employee of Cherokee. It is also undisputed that, at all relevant times, Cherokee had a written policy, modified by an oral directive, that prohibited its security officers from responding to calls or engaging in activities off Cherokee’s premises while on duty, [345]*345unless they first obtained permission from Cherokee’s managers.

On March 12, 1998, Thompson responded to a request that he look for a Cherokee shareholder’s vehicle that supposedly had been stolen. Thompson left the Cherokee premises while on duty and proceeded off premises in response to the call. After responding to the call, and at a time when he was off Cherokee’s premises, Thompson was requested by the Gregg County Sheriffs Department to assist it in a further investigation of the alleged theft. Thompson responded to the request of the sheriffs department, and as a result he was terminated. Thompson left Cherokee’s premises before the sheriffs department asked for his help, and the sheriffs department did not call him to active duty as a reserve officer in connection with its call for help.

Cherokee moved for summary judgment on three grounds: (1) that Thompson was an at-will employee and his termination did not come within the exception in the Sabine Pilot case; (2) that the laws Thompson allegedly was required to violate did not apply to Thompson because Thompson was not acting as a peace officer when he left Cherokee’s premises, and the statutes Thompson relies on are unconstitutionally vague; and (3) that the Sabine Pilot exception does not apply here because the laws Thompson allegedly was asked to violate carry no criminal penalties. Cherokee’s motion was a traditional motion for summary judgment, not a motion for a no-evidence summary judgment pursuant to TEX. R. CIV. P. 166a©.

Thompson responded to Cherokee’s motion for summary judgment and relied on TEX. CODE CRIM. PROC. ANN. arts. 2.03 and 2.15 (Vernon 1977) and 18 U.S.C.A. §§ 1503 and 1512 (West Supp. 1999), the federal obstruction of justice statutes.

To prevail on a motion for summary judgment, the movant must establish that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). Summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiffs theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). The movant for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Once the movant establishes that it is entitled to summary judgment, the burden shifts to the non-movant to show why summary judgment should not be granted. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989). In reviewing a summary judgment, we accept all of the nonmovant’s proof as true and indulge every reasonable inference in the nonmovant’s favor. Science Spectrum, Inc. v. Martinez, 941 S.W.2d at 911. All doubts as to the existence of a genuine issue of material fact must be resolved against the movant. Johnson County Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex.1996).

In an at-will employment relationship, an employer may ordinarily terminate an employee for any reason, unless the employer-employee relationship has been modified by a legally binding agreement. The termination of an at-will employee therefore is usually not wrongful. Texas has created an exception to this rule, however, so that the discharge of an at-will employee for the sole reason that the employee refused to violate a criminal law may be actionable. Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d at 735.

We conclude that the trial court correctly rendered summary judgment for Cherokee for these reasons: (1) the statutes Thompson was allegedly ordered to violate do not apply to him; (2) even if Thompson [346]*346did come within the Texas statutes, the Sabine Pilot exception to the at-will employment doctrine does not apply because the statutes provide for no criminal penalties; and (3) Thompson’s refusal to assist the sheriffs department would not have constituted obstruction of justice under federal law.

Article 2.03 of the Code of Criminal Procedure provides:

(a) It shall be the duty of the attorney representing the State to present by information to the court having jurisdiction, any officer for neglect or failure of any duty enjoined upon such officer, when such neglect or failure can be presented by information, whenever it shall come to the knowledge of said attorney that there has been a neglect or failure of duty upon the part of said officer; and he shall bring to the notice of the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer, when such violation, neglect or failure is not presented by information, and whenever the same may come to his knowledge.

TEX. CODE CRIM. PROC. ANN. art. 2.03(a) (Vernon 1977). The neglect of duty addressed in Article 2.03(a) refers to the duties of peace officers that are set out in Article 2.13, which provides:

It is the duty of every peace officer to preserve the peace within his jurisdiction. To effect this purpose, he shall use all lawful means. He shall in every case where he is authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime. He shall execute all lawful process issued to him by any magistrate or court. He shall give notice to some magistrate of all offenses committed within his jurisdiction, where he has good reason to believe there has been a violation of the penal law. He shall arrest offenders without warrant in every case where he is authorized by law, in order that they may be taken before the proper magistrate or court and be tried.

TEX. CODE CRIM. PROC. ANN. art. 2.13 (Vernon 1977). Article 2.15 provides as follows:

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Related

Hicks v. Humble Oil and Refining Co.
970 S.W.2d 90 (Court of Appeals of Texas, 1998)
Wornick Co. v. Casas
856 S.W.2d 732 (Texas Supreme Court, 1993)
Sabine Pilot Service, Inc. v. Hauck
687 S.W.2d 733 (Texas Supreme Court, 1985)
Roberts v. Friendswood Development Co.
886 S.W.2d 363 (Court of Appeals of Texas, 1994)
Johnson County Sheriff's Posse, Inc. v. Endsley
926 S.W.2d 284 (Texas Supreme Court, 1996)
Bohn v. State
651 S.W.2d 274 (Court of Appeals of Texas, 1983)
Casso v. Brand
776 S.W.2d 551 (Texas Supreme Court, 1989)
Science Spectrum, Inc. v. Martinez
941 S.W.2d 910 (Texas Supreme Court, 1997)
Nixon v. Mr. Property Management Co.
690 S.W.2d 546 (Texas Supreme Court, 1985)
Burt v. City of Burkburnett
800 S.W.2d 625 (Court of Appeals of Texas, 1991)
Hancock v. State
800 S.W.2d 683 (Court of Appeals of Texas, 1990)

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Bluebook (online)
6 S.W.3d 343, 1999 Tex. App. LEXIS 8292, 1999 WL 1016733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-cherokee-water-co-texapp-1999.