IN THE

TENTH COURT OF APPEALS

No. 10-00-403-CV

     NOAH KENNETH DODD,

                                                                         Appellant

     v.

     CITY OF BEVERLY HILLS,

                                                                         Appellee

From the 170th District Court

McLennan County, Texas

Trial Court # 98-161-4

                                                                                                                                                                                                                          

DISSENTING OPINION

                                                                                                                

      I concur in the analysis in the majority opinion other than the discussion of whether some evidence was presented that the mayor did not have the authority to terminate Dodd. I do not believe there is any reason to send this case back to the trial court for further proceedings.

      A chapter from a general personnel manual is the only “evidence” the majority references in support of the determination that the mayor may not have the authority to fire Dodd. There is no evidence that it had been adopted by the city council. Additionally, the statement relied upon by the majority to conclude that only the city council can hire or terminate employees refers only to “appointments.” It says nothing about termination. The provision states: “Except as otherwise provided by charter or ordinance, the appointing authority for all positions shall be the city council.” Termination is simply not mentioned. Accordingly, I do not find this to be any evidence that the mayor did not have the authority to terminate Dodd.

      The statute that Dodd attached to his response does, however, contain a provision that provides the mayor with the authority to terminate Dodd. The statute provides: “The mayor shall at all times actively ensure that the laws and ordinances of the municipality are properly carried out.” Tex. Loc. Gov’t Code Ann. § 22.001 (Vernon 1999). The same section refers to the mayor as the chief executive officer of the municipality. Id. Where a governmental official is given authority, the law implies the powers necessary for the official to be effective. See Nixon v. City of Houston, 560 S.W.2d 447, 449 (Tex. Civ. App.—Houston [14th Dist.] 1997, pet. ref’d n.r.e.).

      While we have held that Dodd was an employee at will, the evidence presented by Dodd establishes that the mayor’s stated reason for termination was: “Due to the fact that the City is in violation of the Nepotism law....” Accordingly, the mayor was acting within the authority of the statute to “...at all times actively ensure that the laws and ordinances of the municipality are properly carried out.” At the very least, in the context of the evidence presented in response to the no evidence summary judgment motion, no evidence was presented that the mayor did not have the authority to terminate Dodd.

      For the foregoing reasons, I would affirm the decision of the trial court. Because the majority does not, I respectfully dissent.

                                                                         TOM GRAY

                                                                         Justice

Dissenting opinion delivered and filed May 22, 2002

Publish

an appeal, she is not entitled to relief through a bill of review.  Accordingly, the trial court did not abuse its discretion in granting both motions for summary judgment.  Blakely’s third issue is overruled.

Conclusion

            Having determined that Blakely is not entitled to relief through a bill of review, we need not discuss Blakely’s remaining issues.  See French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967).  The trial court’s orders are affirmed.

 

                                                                        TOM GRAY

                                                                        Chief Justice

 

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Affirmed

Opinion delivered and filed June 23, 2010

[CV06]