CITY OF HOUSTON FIRE FIGHTERS' v. Morris
CITY OF HOUSTON FIRE FIGHTERS' v. Morris
Opinion of the Court
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.
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,
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;
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.
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
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).
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). If possible, we must give effect to all of the words of the statute and not treat any statutory language as surplusage. Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987). Similarly, we must reject an interpretation of a statute that defeats the purpose of the legislation so long as another reasonable interpretation exists. Nootsie v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996).
Neither chapter 143 of the Local Government Code nor its predecessor statute, article 1269m,
Morris interprets the phrase “personally received” as meaning “actually received” such that a police officer has ten days from the date of actual receipt of the Commission’s order to file his appeal regardless of how the decision is provided to him.
Instead, the confusing aspect of section 143.015(a) is its failure to more clearly delineate between a decision being (a) sent by certified mail and (b) “personally received.” However, numerous Texas statutes distinguish between the giving of notification personally as contrasted from by mail.
Therefore, because Moms’ petition was not filed with the District Court within ten days of the date the Commission decision was sent to him by certified mail, the petition was not timely and the District Court had no jurisdiction to decide the case. Consequently, the City’s fourth point of error is sustained, and, because that point is dispositive of the appeal, we do not reach the City’s three remaining points of error. Accordingly, the judgment of the trial court is reversed and the case is remanded to the trial court with instructions to dismiss Morris’ cause of action for lack of jurisdiction.
APPENDIX
See, e.g., Tex. Alco. Bev.Code Ann. §§ 11.63 (Vernon 1995) (“notice of hearing ... may be served personally by a representative of the commission or sent by registered or certified mail....”), 11.65 (Vernon 1995) (“notice ... shall be given ... personally or by registered or certified mail.”); Tex. Crv. Prac. & Rem.Code Ann. §§ 17.065(a) (Vernon 1986) (“If the notice of service on the chairman cannot be effected by registered or certified mail or if the nonresident or agent refuses to accept delivery of the notice, the plaintiff may have the defendant personally served ....”), 171.005(a) (Vernon Supp. 1997) (“the arbitrators shall ... cause notification [of the hearing] to be served personally or by registered or certified mail.... ”); Tex. Educ. Code Ann. §§ 51.911(c) (Vernon 1996) (“the notification ... shall be delivered ... personally ... or by certified mail -”), 51.925(c) (Vernon 1996) (“Notice ... shall be personally delivered to the chairman ... or [sent] by certified mail ... addressed to the chairman.”); Tex. Fam.Code Ann. § 53.07(a) (Vernon 1996) (“service of the summons may be made either by delivering a copy to him personally or mailing a copy to him by registered or certified mail....”); Tex. Gov’t Code Ann. §§ 466.155(b) (Vernon Supp. 1997) (“A notice may be served ... personally or sent by certified or registered mail .... ”), 466.160(d) (Vernon Supp. 1997) (“The notice
. The IAD officers did not observe Morris making any verbal threats to Bell.
. The reprimand stated that the following Department rules had been violated:
Department Rules Manual, § 2.3 — CONDUCT & BEHAVIOR
Officers whether on-duty or off-duty shall follow the ordinary and reasonable rules of good conduct and behavior and shall not commit any act in an official or private capacity tending to bring reproach, discredit, or embarrassment to their profession or the department. Officers shall follow established procedures in carrying out their duties as police officers and employees of the department, and shall at all times use sound judgment.
Department Rules Manual, § 2.9 — ADHERENCE TO POLICE DUTY
Officers shall not devote any of their on-duty time to any activity that is not directly related to the officer's police duties.
(emphasis added).
. See Tex Loc. Gov’t Code Ann. ch. 143 (Vernon 1988 & Supp. 1997).
. In Bichsel, the Texas Supreme Court held that where charges against a policeman before the Civil Service Board were not legally brought under the statute in question, the chief of police was not authorized to remove the policeman on those charges, and the Board "had no authority to proceed to uphold his suspension under them.” See Bichsel v. Carver, 159 Tex. 393, 321 S.W.2d 284, 287 (Tex. 1959). The Dallas Court of Appeals has interpreted this language to mean
. Wc interpret this ten day appeal period to be a general statute of limitations. See City of Austin v. Phipps, 337 S.W.2d 427, 432 (Tex.Civ.App.— Austin 1960), aff’d, 162 Tex. 112, 344 S.W.2d 673, 675 (Tex. 1961) (both opinions holding that the particular claim in question was not of a type to be subject to the limitations provision set forth in former article 1269m, section 18, the predecessor statute to section 143.015); see also Ealey v. Insurance Co. of North America, 660 S.W.2d 50, 52 (Tex. 1983) (holding provision setting time period in which to appeal Industrial Accident Board decision to be a general statute of limitation). Compliance with such a requirement is necessary to invoke the district court’s jurisdiction. See Ealey, 660 S.W.2d at 52. Thus, when
. The record does not reflect when Morris was notified by the Postal Service that it had an item of certified mail for him.
. Analogously, appellate rules are to be construed liberally, when possible, so that the right to appeal is not lost by creating a requirement not absolutely necessary from the literal words of the rule. Kunstoplast of America, Inc. v. Formosa Plastics Corp., 937 S.W.2d 455, 456 (Tex. 1996).
. See Tex.Rev.Civ. Stat. Ann. Art. 1269m (repealed 1987).
. The City contends that if the Legislature had intended the ten day period to run from the date of receipt of a decision by certified mail, it would have had no reason to include any reference to the date sent since the date of receipt would always come later and, thus, always apply. However, this argument overlooks the possibility that certified mail is never received, such as due to an incorrect address or the addressee's refusal to accept delivery.
. Morris also argues that actual receipt is controlling based on Temple Ind. Sch. Dist. v. English, 896 S.W.2d 167, 169 (Tex. 1995). However, Temple addressed evidence of actual receipt to rebut a presumption of notice on the date a notification is mailed pursuant to the applicable statute. See Tex. Gov’t Code Ann § 2001.142(c) (Vernon 1997) ("A party or attorney of record notified by mail ... is presumed to have been notified on the date on which the notice is mailed.”) (emphasis added); see generally Linda Addison, Rebutting Presumptions of Notice, 58 Tex. B.J. 516 (1995). By contrast, in this case, there is no such presumption of notice to be rebutted because section 143.015 specifically sets out the events that trigger the ten day appeal period.
Nor have we found a provision in the Local Government Code which, like Texas Rule of Civil Procedure 21a, extends the time for a prescribed act where the notice triggering the applicable time period is sent by mail.
. Indeed, in this case, Morris received the order with two days remaining in the ten day period, and docs not contend that this afforded him inadequate time to appeal. Moreover, if his late filing arose from interpreting the statute to allow ten days from receipt, such an interpretation might also have caused him to file an untimely appeal even if the mail delivery had been sooner.
. See Tex.Rev.Civ. Stat Ann. Art. 1269m, § 18 (repealed 1987) (current version at Tex Loc. Gov't Code Ann. § 143.015 (Vernon 1988)).
. See Tex. Loc Gov’t Code Ann § 143.015 & historical note (Vernon 1988).
. See Appendix.
Dissenting Opinion
dissenting.
I respectfully dissent.
The purpose of controlling rule Tex. Loc. Govt.Code Ann. § 143.015(a) (Vernon 1988) is to give 10 days notice to the policeman in order that he will have time to prepare an appeal if he so desires. The majority opinion would give Morris only two days to appeal as time would have expired on September 12, 1993, two days after he received the Decision. This would be unfair, unreasonable and absurd. This is not what is intended by the statute. It would violate Morris’ right to due process under the 14th Amendment.
It would make the intent of the legislature more manifest
There is ample authority for the rule of construction to construe “or” as meaning “and” and again “and” as meaning “or” as the sense may require where strict grammatical construction will frustrate clear legislative intent. Peacock v. Lubbock Compress Co., 252 F.2d 892, 893 (5th Cir. 1958); Bruce v. First Federal Savings & Loan Asso. of Conroe, Inc., 837 F.2d 712 (5th Cir. 1988); see generally 67 Tex. Jr.3d, Statutes § 101.
I would affirm the trial court.
. Government Code § 312.005.
Reference
- Full Case Name
- CITY OF HOUSTON FIRE FIGHTERS’ and Police Officers’ Civil Service Commission, City of Houston, Texas and Sam Nuchia, in His Official Capacity as Chief of Police, Appellants, v. Adolph R. MORRIS, Appellee
- Cited By
- 6 cases
- Status
- Published