City of Laredo v. Leal

• Court: Texas Supreme Court
• Writing for the Court: Sarah B. Duncan
• Citation: City of Laredo v. Leal, 161 S.W.3d 558 (Tex. 2005)
• Decision Date: 11 February 2005
• Docket Number: No. 04-03-00800-CV.,04-03-00800-CV.
• Parties: CITY OF LAREDO and Agustin Dovalina III, Appellants, v. David LEAL, Appellee.

Page 558

161 S.W.3d 558

CITY OF LAREDO and Agustin Dovalina III, Appellants, v. David LEAL, Appellee.

No. 04-03-00800-CV.

Court of Appeals of Texas, San Antonio.

December 29, 2004.

Rehearing Overruled February 11, 2005.

Deborah L. Leach, Albert Lopez, Lopez & Smith, P.C., San Antonio, for appellants.

Baldemar Garcia, Jr., Person, Whitworth, Borchers & Morales, L.L.P., Murray E. Malakoff, Law Office of Murray E. Malakoff, Laredo, for appellee.

Sitting: PAUL W. GREEN, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.

OPINION

Opinion by SARAH B. DUNCAN, Justice.

The City of Laredo and its police chief, Agustin Dovalina, appeal the trial court's summary judgment in favor of David Leal, a lieutenant in the Laredo Police Department. We hold the hearing examiner who heard Leal's appeal had both the jurisdiction and the authority to reduce Leal's indefinite suspension to a temporary 644-day suspension without pay. We therefore reverse this aspect of the trial court's judgment and render a take-nothing judgment in favor of the City and Dovalina. We also hold the trial court erred in denying Dovalina's motion for summary judgment on Leal's substantive and procedural due process claims on the ground of qualified immunity. Accordingly, we also reverse this aspect of the trial court's judgment and render a take-nothing judgment in favor of Dovalina.

FACTUAL AND PROCEDURAL BACKGROUND

On October 21, 2000, Lieutenant David Leal's son, David Leal II ("D.J."), attended a party where he was attacked and beaten. Soon thereafter, a suspect in D.J.'s assault case, Eduardo Munoz, filed a complaint ("the Munoz Complaint") alleging that, on October 28, 2000, he was harassed by Lieutenant Leal. Other complaints, also alleging harassment and interference with the investigation, were filed against Leal by members of the Laredo Police Department, Juan Arias, and Sami Alasi ("the Arias-Alasi Complaint").

Both the Munoz and the Arias-Alasi Complaints were investigated by the Laredo Police Department's Internal Affairs Division under the direction of Lieutenant Gilberto Navarro. Navarro assigned the investigation of the Munoz Complaint to Officer Gilberto Magaña, Jr. and the investigation of the Arias-Alasi Complaint to Officer Sergio Moreno. Magaña and Moreno each gave Leal a copy of the complaint under investigation, informed him of his right to union representation and a lawyer, asked him to answer written questions, and interviewed him. In neither investigation did Leal avail himself of his right to a union representative or a lawyer. After reviewing the reports emanating from these investigations, Assistant Chief Eliodoro Granados forwarded the complaints to two Disciplinary Review Boards.

Leal appeared before both Disciplinary Review Boards, answered the board members' questions and, for the most part, gave his side of the story. In the first Disciplinary Review Board, on March 20, 2001, Leal was represented by Luis Martinez, the vice-president of the Laredo Police Officers Association. In the second, on April 9, 2001, Leal was represented by the Association's president, Octaviano Rodriguez. With regard to the Munoz Complaint, the Disciplinary Review Board recommended that Leal be indefinitely suspended. With regard to the Alasi-Arias Complaint, the Board recommended that Leal be demoted to a non-supervisory position. The Disciplinary Review Boards' recommendations were ultimately forwarded to Police Chief Agustin Dovalina III. If Dovalina was to act on the Board's recommendations, he was required to do so by April 25, 2001. See TEX. LOC. GOV'T CODE ANN. § 143.052(h) (Vernon 1999). However, from the time the second Disciplinary Review Board concluded on April 9 through April 25, Leal was on either sick leave or annual leave.¹ Accordingly, Dovalina directed his efforts towards serving Leal at his home.

On April 23, 2001, Magaña and a patrolman saw Leal water plants outside his home and then go inside. Later that day, however, after Dovalina had signed a notice of an April 25, 2001 pre-termination hearing and directed Lieutenant Navarro to deliver the notice to Leal, Navarro and Magaña received no answer when they called Leal on his cell phone. When Moreno called Leal's home phone, he was told by D.J. that Leal was out-of-town; D.J. said he did not know when his father would return. That afternoon, Navarro again went to Leal's home to deliver the notice of the pre-termination hearing; this time, Navarro was told by Leal's wife Vanessa that Leal was out-of-town at a doctor's appointment.

On April 24, Navarro tried again, watching Leal's home from 6:00 a.m. until 11:00 a.m.; but this time he saw no sign of Leal. Later that day Dovalina signed a letter indefinitely suspending Leal from his position as a lieutenant for violating Rules 2(6), 2(8), and 2(12) of the City of Laredo Fire Fighters' and Police Officers' Civil Service Commission Rules and Regulations; sections 10.11(A)-(B), 10.13(B), 10.14(C), and 10.34(A) of the Laredo Police Department's Policies and Procedures; and sections 7.01 and 7.02 of the Laredo Police Department General Orders Manual. After being ordered to serve Dovalina's April 24 letter of suspension on Leal, Navarro returned to Leal's home and knocked on the door for approximately five minutes; but no one answered. Accordingly, Navarro taped a copy of the letter to Leal's front door and put another copy in the mailbox. When Navarro returned at approximately 6:30 that evening, the letter was still taped to Leal's front door. D.J., who was in the driveway, again said his father was out-of-town. D.J. refused to accept the letter on his father's behalf.

As Leal, his wife, and his son later admitted, Leal was at home, sick in bed, on both April 23 and 24. According to Leal, he did not learn of his suspension until April 26, when he read a local newspaper article, and did not receive the letter of suspension until May 4, when he was handed an envelope containing the letter and his paycheck. Leal could not explain how, if he did not see the letter of suspension until April 26, his first attorney was able on April 30 to file Leal's appeal detailing the same rules he was alleged to have violated in Dovalina's April 24 letter of suspension.

Pursuant to section 143.057 of the Texas Local Government Code and the Collective Bargaining Agreement between the City and the Laredo Police Association, Leal appealed his indefinite suspension to an independent third party hearing examiner. After an eighteen-day hearing, the hearing examiner issued a nineteen-page report. In this report, the hearing examiner found that Dovalina "took reasonable steps to fulfill [the Local Government Code's service] requirements within the legal time frame"; but "Leal's family prevented Department representatives from serving the letter of indefinite suspension." In light of these findings, the hearing examiner concluded that "[t]he City of Laredo did not violate procedural and notification requirements of the Local Government Code in issuing Police Lieutenant David Leal an indefinite suspension on April 24, 2001."

The hearing examiner also concluded that only the allegations made in Alasi's complaint were supported by sufficient evidence. But this conduct represented "serious infractions" and "demonstrated a lack of good moral character and was prejudicial to good order." In particular, the hearing examiner found that "Leal violated applicable sections of the City of Laredo Police Department's Rules and Regulations, the City of Laredo's Policies and Procedures, the Laredo Police Department's General Orders, the Local Civil Service Rules of the City of Laredo, and the Texas Local Government Code." Nonetheless, the hearing examiner concluded that "[t]ermination is too severe for the violations [Leal] committed"; and "[t]he discipline appropriate for his violations is a suspension from April 24, 2001 to February 16, 2003" (644 days) and restoration of Leal to his former position. "Considering the continuing fallout to the Department and the general public stemming from [Leal's] actions," the hearing examiner concluded "it is not appropriate to award back pay."

Dissatisfied with the hearing examiner's decision, Leal filed this suit in district court, challenging the hearing examiner's jurisdiction and authority to suspend him without pay or benefits for more than thirty days and seeking to recover damages from the City and Dovalina under 42 U.S.C.A. § 1983 for violations of his Fifth and Fourteenth Amendment rights to substantive and procedural due process. Leal moved for summary judgment on all but his substantive due process claim. In their response to Leal's motion and in their own motion for summary judgment the City and Dovalina asserted that the hearing examiner was authorized to reduce Leal's indefinite suspension to a 644-day suspension; Dovalina was entitled to qualified immunity; and both the City and Dovalina were entitled to summary judgment on the merits of Leal's substantive and procedural due process claims. The trial court denied the City's and Dovalina's motion and granted Leal's motion in part, ruling that the hearing examiner was without jurisdiction and authority to reduce Leal's indefinite suspension to a 644-day suspension without pay or benefits, granting Leal's motion for partial summary judgment on his procedural due process claim, and setting a jury trial on damages. The City and Dovalina appealed.

STANDARD OF REVIEW

We review a summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Accordingly, we will uphold a traditional summary judgment only if the summary judgment record establishes the absence of a genuine issue of material fact and that the movant is entitled to judgment as a matter of law on a ground set forth in the motion. TEX.R. CIV. P. 166a(c). We view the evidence in the light most favorable to the respondent and disregard all contrary...