Abbott v. Pollock

• Decision Date: 15 May 1997
• Docket Number: No. 03-96-00149-CV,03-96-00149-CV
• Citation: 946 S.W.2d 513
• Parties: 13 IER Cases 760 Bill ABBOTT, J.M. Bonnet, Karen Johnson, Larry Krueger, Sylvia Morin, Kay Pearson, Pat Wall, Conrad Whitacre, and Dennis Wilie, Appellants, v. Sheriff Joe POLLOCK, Individually and in his capacity as Sheriff of Burnet County, Texas, and Burnet County, Texas, by and through its elected officials of the Commissioner's Court, Appellees.
• Court: Texas Court of Appeals

Page 513

946 S.W.2d 513

13 IER Cases 760

Bill ABBOTT, J.M. Bonnet, Karen Johnson, Larry Krueger Sylvia Morin, Kay Pearson, Pat Wall, Conrad Whitacre, and Dennis Wilie, Appellants, v. Sheriff Joe POLLOCK, Individually and in his capacity as Sheriff of Burnet County, Texas, and Burnet County, Texas, by and through its elected officials of the Commissioner's Court, Appellees.

No. 03-96-00149-CV.

Court of Appeals of Texas Austin.

May 15, 1997.

Rehearing Overruled July 3, 1997.

Zollie C. Steakley, Steakley & Wetsel, Sweetwater, for Appellants.

Douglas M. Becker, Gray & Becker, Austin, for Appellees.

Before POWERS, ABOUSSIE and JONES, JJ.

ABOUSSIE, Justice.

Appellants Bill Abbott, J.M. Bonnet, Karen Johnson, Larry Krueger, Sylvia Morin, Kay Pearson, Pat Wall, Conrad Whitacre, and Dennis Wilie appeal a trial court's judgment granting summary judgment in favor of appellees Sheriff Joe Pollock and Burnet County, and denying partial summary judgment in favor of appellants. Appellants raise four points of error challenging the trial court's granting of summary judgment in appellees' favor and denying partial summary judgment for appellants. In three points of error, appellants contend the trial court erred in granting appellees' motion for summary judgment because appellees were not entitled to judgment as a matter of law and because there are genuine issues of material fact. In their fourth point of error, appellants assert that the trial court erred by denying appellants' motion for partial summary judgment on their breach of contract claim. We will affirm the trial court's judgment.

BACKGROUND

Appellants are former employees of the Burnet County Sheriff's Department and served the department under former Sheriff Weldon Buck. Appellants Abbott, Bonnet, Krueger, Wilie, Conrad, and Wall were deputies while appellants Johnson, Morin, and Pearson served as clerical personnel. Appellee Sheriff Joe Pollock was elected sheriff of Burnet County and took office on January 1, 1993. As sheriff-elect, Pollock informed Sheriff Buck's employees that anyone who desired to be considered for employment in his administration should submit an application. Upon taking office, Sheriff Pollock hired several of former Sheriff Buck's employees, but did not rehire appellants. ¹

Appellants filed suit against Sheriff Pollock and Burnet County claiming they breached an employment contract that existed between appellants and Burnet County. Appellants assert that the Burnet County Personnel Policies (the "Personnel Policies") adopted by the County Commissioners Court created an employment contract. Appellants brought additional causes of action for defamation, tortious interference with a contract, and negligent misrepresentation. Appellees moved for summary judgment on all of appellants' causes of action, and appellants moved for partial summary judgment on their breach of contract claim. The trial court granted summary judgment in favor of appellees and denied partial summary judgment for appellants. Appellants raise four points of error on appeal.

DISCUSSION

Appellants contend the trial court erred (1) by granting appellees' motion for summary judgment because appellees were not entitled to summary judgment as a matter of law and because there are genuine issues of material fact and (2) by denying appellants' motion for partial summary judgment on their breach of contract claim. We will review the granting of summary judgment individually as to each of appellants' claims against appellees.

There are two instances in which summary judgment for a defendant is proper: first, when a plaintiff's allegation fails to state a cause of action as a matter of law, Maranatha Temple, Inc. v. Enterprise Products Co., 893 S.W.2d 92, 98 (Tex.App.--Houston [1st Dist.] 1994, writ denied), and second, when the defendant has produced competent evidence negating a necessary element of the plaintiff's cause of action or establishing all elements of its defense as a matter of law. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). The standards for reviewing a motion for summary judgment are well established: (1) The movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Breach of Contract

Appellants contend a valid employment contract existed between appellants and appellees and that appellees breached that contract when appellants were not rehired by Sheriff Pollock after he took office. Texas is an employment-at-will state, and the general rule is that employment for an indefinite term may be terminated at will and without cause by either party. East Line & R.R.. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 102 (1888); Cote v. Rivera, 894 S.W.2d 536, 539 (Tex.App.--Austin 1995, no writ). Chapter 85 of the Texas Local Government Code reaffirmed in statutory form Texas' at-will employment rule, granting sheriffs and other elected county officials authority to hire and fire their employees. See Tex. Loc. Gov't Code Ann. §§ 85.001-.006 (West 1988 & Supp.1997); Cote, 894 S.W.2d at 539; Renken v. Harris County, 808 S.W.2d 222, 225 (Tex.App.--Houston [14th Dist.] 1991, no writ). Section 85.003 unequivocally states that deputy sheriffs "serve at the pleasure of the sheriff." Tex. Loc. Gov't Code Ann. § 85.003(c) (West 1988) (emphasis added).

While section 85.003 clearly applies to deputies, the Fifth Circuit has interpreted it to include other sheriff's office employees as well. ² See Garcia v. Reeves County, Tex., 32 F.3d 200, 203 (5th Cir.1994). We agree with the Fifth Circuit's interpretation and hold that section 85.003 applies to both sheriff's deputies and other employees of the sheriff's office.

Section 85.003 does not specify a definite term of employment for sheriff's employees. See Tex. Loc. Gov't Code Ann. § 85.003 (West 1988). One court of appeals has held that the term of a sheriff's office employee expires when the sheriff's term expires. See El Paso County Sheriff's Deputies Ass'n, Inc., v. Samaniego, 802 S.W.2d 727, 728 (Tex.App.--El Paso 1990, writ denied). And the expiration of the term is brought about by the passage of time, without any action on the part of the sheriff. Id. If a term of service is indefinite and has no contractual limitation, either party may terminate the employment at will and without cause. Mott v. Montgomery County, 882 S.W.2d 635, 637 (Tex.App.--Beaumont 1994, writ denied); Reynolds Mfg. Co. v. Mendoza, 644 S.W.2d 536, 538 (Tex.App.--Corpus Christi 1982, no writ). Furthermore, the plain meaning of section 85.003 is that employees of the sheriff's office may be terminated at the sheriff's discretion and do not have a property interest in continued employment. Williams v. Bagley, 875 S.W.2d 808, 811 (Tex.App.--Beaumont 1994, no writ). Therefore, section 85.003 created an at-will employment relationship for the sheriff's office employees, and appellants had no legitimate expectation of continued employment under the statute.

Appellants argue, however, that their at-will employment status was altered by the Personnel Policies, adopted by the Commissioners Court and by oral statements allegedly made to them by County Judge Martin McLean, former Sheriff Buck, and the former county attorney, Eddie Shell ("County Officials" collectively). Appellees counter that the Commissioners Court had no authority to alter the at-will employment relationship.

In Texas, an elected officer occupies a sphere of authority, which is delegated to that officer by the Constitution and laws, which another officer may not interfere with or usurp. Pritchard & Abbott v. McKenna, 162 Tex. 617, 350 S.W.2d 333, 335 (1961); Renken, 808 S.W.2d at 226. The Commissioners Court is the governing body of Burnet County and exercises only those powers expressly conferred by the Texas Constitution or statutes or those powers necessarily implied from those expressly conferred. See Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451, 453 (1948); Renfro v. Shropshire, 566 S.W.2d 688, 690 (Tex.Civ.App.--Eastland 1978, writ ref'd n.r.e.). The Commissioners Court exercises budgetary power over the positions in the sheriff's office by determining the number of deputies, assistants, and clerks to be appointed by the sheriff and to set the compensation for such employees. See Tex. Loc. Gov't Code Ann. §§ 151.002 (West 1988) & 152.011 (West 1988 & Supp.1997). It has no power, however, to appoint or terminate a sheriff's office employee or to dictate other terms of their employment. See Tex. Loc. Gov't Code Ann. § 151.004 (West 1988); Renken, 808 S.W.2d at 226.

The limitations on the powers of the Commissioners Court are founded in the policy that elected officers, such as sheriffs, discharge the public trust and carry the responsibility for the proper discharge of that trust, and therefore, should be free to select persons of their own choice to assist them. Renfro, 566 S.W.2d at 691. The Legislature limited the Commissioners Court's authority by expressly providing that sheriffs' employees serve at the pleasure of the sheriff and thereby providing sheriffs with exclusive authority regarding the employment status of the sheriff's employees. See Tex. Loc. Gov't Code Ann. §§ 85.003 & 151.004. The Commissioners Court could not, through the adoption of Personnel Policies, change appellants' employment status from at-will to just-cause or assume any legal duty for the appointment or discharge of the sheriff's employees. See Garcia, 32 F.3d at 203.

As for appellants' claims...