Barnett v. City of Plainview

• Decision Date: 22 February 1993
• Docket Number: No. 07-92-0234-CV,07-92-0234-CV
• Citation: 848 S.W.2d 334
• Parties: Joe A. BARNETT, Appellant, v. CITY OF PLAINVIEW, et al., Appellees.
• Court: Texas Court of Appeals

Page 334

848 S.W.2d 334

Joe A. BARNETT, Appellant, v. CITY OF PLAINVIEW, et al., Appellees.

No. 07-92-0234-CV.

Court of Appeals of Texas Amarillo.

Feb. 22, 1993.

Thomas J. Griffith, P.C., Teresa Z. Levine, Lubbock, for appellant.

Howard W. Hatch, Jr., Tom Hamilton, Plainview, for appellees.

Before REYNOLDS, C.J., and BOYD and POFF, JJ.

BOYD, Justice.

Contending summary judgment was improper and material questions of fact exist to vitiate it, Joe Barnett appeals from the summary judgment granted in favor of the City of Plainview, Texas; E. V. Ridlehuber individually and as Mayor of Plainview; James Jeffers, individually and as City Manager of Plainview; Tom Aday, individually and as City Council Member of Plainview; Junior Brown, individually and as City Council Member of Plainview; Barbara Dorman, individually and as City Council Member of Plainview; Bobby James, individually and as City Council Member of Plainview; and Andy Taylor, individually and as City Council Member of Plainview. ¹ Based upon the authorities and rationale discussed below, we will affirm the judgment of the trial court.

The parties stipulated to the underlying facts. On February 27, 1984, the City appointed Barnett as Plainview's municipal court recorder (judge) with duties including presiding over and disposing of cases in the municipal court, maintaining records of the court, signing warrants, and reading rights to juveniles. Barnett continued in this position until the events at issue occurred.

On January 10, 1986, Jeffers, with Ridlehuber's approval, sent a letter outlining the City's concerns over Barnett's performance of his duties, and instructing him to attend a January 14 hearing to discuss the matters addressed in the letter. After the hearing, at which Barnett was present, the City Council voted to remove him from office, effective immediately. The Texas Commission on Judicial Conduct was not notified of any grievance or proceedings against Barnett by the City.

On January 8, 1988, Barnett brought suit against the City. In his live trial pleadings, he alleged the City had violated the separation of judicial and legislative powers and his right to free speech, and deprived him of a liberty interest without due process.

Upon the City's general denials, Barnett filed his motion for summary judgment. As pertinent to the issues presented to us. Barnett alleged that the City's actions (1) were preempted by state laws, (2) denied him due process, (3) were an unconstitutional invasion of a judicial function, (4) were violative of judicial immunity, (5) were an impermissible procedure for removal, (6) denied him a property interest in a public office, and (7) denied him a liberty interest in his character and reputation without due process of law.

The City timely responded to each of Barnett's allegations, and in turn, filed its own motion for summary judgment. The City opined that Barnett was an employee-at-will, and his termination complied with the city charter and ordinances, the state constitution and statutes, and the Federal Constitution and statutes.

Barnett responded by attacking the City's affidavits in support of their motion as incompetent. He made no direct response to the City's contention that it fully complied with the charter and ordinances governing the office of municipal court judge, and did not allege that the charter and ordinances were preempted by state law.

In his response to the City's motion for summary judgment, Barnett states that a "separate response will be made by counter-affidavit." No such separate response is in the record before us. Ordinarily, we may only consider the response filed which made no contest concerning preemption, separation of powers, or due process. As appellant, it was Barnett's burden to see that a sufficient record was presented to show error by the trial court which requires reversal. Tex.R.App.P. 50(d).

Nevertheless, it is apparent from the record, specifically Tom Hamilton's December 14, 1989 letter to the trial court and the identical orders granting and denying the respective motions for summary judgment, that the legal issues presented by Barnett's motion were equally considered in the disposition of the City's motion. In the interest of justice, we will consider these matters as addressed.

In both the order denying Barnett's motion and that granting the City's motion, the trial court determined that Barnett was an officer and employee of the City and, as a home-rule municipality, the City had authority to establish the manner and mode of selecting officers and employees and to prescribe their qualifications, duties, compensation, and length of employment. The trial court further determined, as a matter of law, that the authority exercised by the City in terminating Barnett's employment was in compliance with state law and the City's charter and ordinances.

Barnett contends the summary judgment was erroneously granted because (1) Texas statutes and the Supreme Court have promulgated rules for the removal of judges which preempt the City's provisions for removal of a municipal court recorder (judge), (2) material questions of fact exist about whether the City violated the separation of powers, (3) the City violated his judicial immunity when it removed him on improper grounds without the necessary proceedings, (4) a question of fact exists regarding whether his removal was consistent with the Texas Constitution, statutes, and Supreme Court rulings specifying grounds for removal, and (5) he did not receive due process safeguards regarding his property interest in continued employment. These contentions will be discussed in logical consecution.

A movant is entitled to summary judgment if he shows the absence of any genuine issues of material fact and the right to judgment under the undisputed material facts, as a matter of law, on grounds expressly stated in the motion. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). The movant, against whom all doubts are resolved, has the burden of establishing both elements. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979).

When the defendant is the movant, summary judgment is proper only if the plaintiff cannot, as a matter of law, succeed upon any theory plead. Peirce v. Sheldon Petroleum Co., 589 S.W.2d 849, 852 (Tex.Civ.App.--Amarillo 1979, no writ). Thus, a defendant can prevail by conclusively establishing against the plaintiff at least one factual element of each theory plead by the plaintiff, Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970), or by conclusively showing every factual element of an affirmative defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972).

In his first point of error, Barnett contends summary judgment was improper because the provisions of the City's Charter and ordinances under which he was dismissed are, as a matter of law, inconsistent with the Texas Constitution, state statutes, and Supreme Court rulings and, thus, preempted thereby. We disagree.

Although not established by the record, it is uncontested that Plainview is a home-rule city as contemplated by the Texas Constitution, and we accept this as true. Tex.R.App.P. 74(f). A city is a home-rule municipality if it operates under a municipal charter that has been adopted or amended as authorized by article XI, § 5 of the Texas Constitution. Tex.Loc.Gov't Code Ann. § 5.004 (Vernon 1988); City of Sherman v. Municipal Gas Co., 133 Tex. 324, 127 S.W.2d 193, 195 (1939). A city becomes a home-rule municipality by a majority vote of the qualified voters, provided their charter or ordinance does not contain any provision inconsistent with the Texas Constitution or general laws enacted by the legislature (statutes). Tex. Const. art. XI, § 5. ²

By statute, the municipal court recorder (judge) in a home-rule city is selected under the municipality's charter provisions relating to such appointment. Tex.Gov't Code Ann. § 29.004(a) (Vernon 1988). A home-rule city has authority to create offices, determine the method for selecting officers, and prescribe the qualifications, duties, and tenure of offices for its officers. Tex.Loc.Gov't Code Ann. § 26.041 (Vernon 1988). The term of office is to be set by the charter but cannot be less than two years, nor more than four. Tex Const. art. XI, § 11; Tex.Gov't Code Ann. § 29.005 (Vernon 1988).

Plainview, Texas Charter Section 7 provides in pertinent part:

The other officers of said City shall be ... and such other officers and employees the City Council may determine ... and all other officers or employees of the City shall be appointed by the Mayor and confirmed by the Council, and shall perform such duties and receive such compensation as may be decided upon by the Council, and for such length of time as the Council shall decide, ...

Article X, Section 84 of the Charter goes on to establish a corporation court as contemplated by statute, commonly referred to as a municipal court, providing:

the Mayor shall be ex officio Judge of said court ... provided, however, the City Council may by ordinance create the office of Recorder [judge] of said court and make said office appointive by said Council or elective by a vote of the people.

In accordance with these provisions, Plainview Code § 19-5 creates the office, and § 19-6 provides that the City Council shall appoint the recorder (judge) of the municipal court. From the portions of the Code and Charter provided in the record before us, the Charter and ordinances do not provide a set term of office, nor do they provide established procedures for removal from office.

The City contends that because there was no set term of employment, Barnett was an employee-at-will, and could be dismissed at any time, with or without cause. For the reasons expressed below, we disagree that, at the time in question, Barnett was an employee-at-will.

The purpose of the home-rule amendment to the Constitution is to...