City of Houston Fire Fighters' v. Morris

Decision Date10 July 1997
Docket NumberNo. 14-95-00933-CV,14-95-00933-CV
Citation949 S.W.2d 474
PartiesCITY 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. (14th Dist.)
CourtTexas Court of Appeals
Dissenting Opinion by Justice Amidei,

July 17, 1997.

Rehearing Overruled Aug. 21, 1997.

John Fisher, Robert G. Lee, Houston, for appellants.

Robert Anthony Armbruster, Houston, for appellee.



EDELMAN, Justice.

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 Nuchia, 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 "Chief's 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.


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. 1

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, 3 all of whom denied him relief.

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 Chief's 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; 4 and that the written reprimand should be overturned and removed from Morris' personnel file for all purposes.

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 plaintiff's 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 evidence 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. 5 (emphasis added).

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 Return Receipt card, 6 and he filed his appeal on September 20, within ten days of his actual receipt pursuant to section 143.015(a)(2). Thus, the issue in this case is whether the phrase "personally received" in section 143.015(a)(2) applies to notification sent by certified mail under subsection (a)(1).

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). 7 Similarly, too literal a construction of a statute, which would prevent the enforcement of it according to its true intent, should be avoided. Id.

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, 8 states whether or how the Commission is required to give notice of its decisions. Article 1269m, section 18, required a fireman or policeman who was dissatisfied with a decision of the Commission to file an appeal in the district court within ten days after rendition of the Commission's final decision, i.e., without regard to whether notification of it was sent or received. By contrast, although section 143.015 also does not indicate that notification is required, it states the period of limitations only with regard to decisions which are either sent by certified mail or personally received.

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. 9 In support of this interpretation, he argues that a police officer can't appeal a commission decision until he receives notice of it, and that, due to delays in handling, a decision could be delivered by certified mail more than ten days after it is sent. 10

However, the primary difficulty with section 143.015(a) is not in allowing only ten days from the date a Commission decision is sent by certified mail. 11 As noted above, its predecessor statute, 12 in effect forty years, 13 was even more restrictive in allowing ten days "after the rendition of [the Commission's] final decision" without regard to whether it was sent or received. Similarly, an appeal of an action to the Commission must be filed within 10 days after the date the action occurred. TEX. LOC. GOV'T CODE ANN. § 143.010(a) (Vernon 1988).

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. 14 In the context of such notification provisions, the term "personally" consistently refers to or suggests delivery in person or by an agent or representative of the party giving notification, and as wholly distinct from service by mail. In light of this clear and uniform distinction throughout the statutes, and having found no authority in which "personally" has been used to mean "actually" or otherwise to...

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    ...examiner cannot uphold a suspension based on defective charges. See City of Houston Firefighters' & Police Officers' Civil Serv. Comm'n v. Morris, 949 S.W.2d 474, 475 n. 4 (Tex.App.-Houston [14th Dist.] 1997, pet. denied). We have disagreed with the courts of appeals that have found a polic......
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