Edwards v. Texas Employment Com'n

• Decision Date: 19 December 1996
• Docket Number: No. 2-96-084-CV,2-96-084-CV
• Citation: 936 S.W.2d 462
• Parties: Terry M. EDWARDS, Appellant, v. TEXAS EMPLOYMENT COMMISSION, Appellee.
• Court: Texas Court of Appeals

Page 462

936 S.W.2d 462

Terry M. EDWARDS, Appellant, v. TEXAS EMPLOYMENT COMMISSION, Appellee.

No. 2-96-084-CV.

Court of Appeals of Texas Fort Worth.

Dec. 19, 1996.

Rehearing Overruled Jan. 23, 1997.

Robert Hampton, West Texas Legal Services, Wichita Falls, for Appellant.

Dan Morales, Attorney General of Texas, Jorge Vega, First Attorney General for Litigation, Laquita Hamilton, Deputy Attorney General for Litigation, Lucy Glover, Assistant Attorney General Chief, Taxation Division, James T. Parsons, Assistant Attorney General, Austin, for Appellee.

Before DAY, DAUPHINOT and BRIGHAM, JJ.

OPINION

DAY, Justice.

Appellant Terry M. Edwards appeals a trial court decision affirming a Texas Employment Commission ("TEC") decision that he is ineligible to receive unemployment benefits because his former employer, Winn-Dixie, terminated him for misconduct. We find that substantial evidence supports the TEC decision that Winn-Dixie discharged Edwards for violating a reasonable employer policy. Accordingly, we affirm the judgment of the trial court.

Edwards raises three points of error. First, he contends the trial court erred by admitting in evidence his attorney's letter to the TEC appeals tribunal presenting his appeal as a party-opponent admission. Next, he asserts there was not substantial evidence to support the trial court's finding that Edwards violated any employer policy, or even the existence and content of any employer policy. Finally, he argues that if there was an employer policy, the trial court used an erroneous legal standard in determining that it was reasonable.

SUMMARY OF THE FACTS

Winn-Dixie fired Edwards for violation of its policy requiring employees in personal possession of merchandise while on duty to have a receipt for that merchandise. Edwards picked up a pack of cigarettes and a bar of soap while he was sweeping the aisles. He placed the cigarettes in his pocket, and he placed the soap either in his pocket or on the floor where he pushed it along the aisle with his broom. He asserted he was intending to pay for the merchandise when he reached the registers, and he often carries items in his pockets because he only has one arm. However, instead of going directly to the registers and either paying for the merchandise or leaving it at the registers to pay for later, he went upstairs into the store restrooms to empty the trash. After Edwards came back downstairs, a manager stopped Edwards, accused him of theft, and fired him.

The TEC initially determined Edwards was eligible for unemployment benefits. However, Winn-Dixie appealed and requested a TEC appeals tribunal hearing. The tribunal examiner reversed the initial determination of eligibility, finding that Winn-Dixie had terminated Edwards for misconduct. See TEX. LAB.CODE ANN. § 212.101-.103 (Vernon 1996). Edwards then requested the TEC review the tribunal decision. See id. § 212.151. However, one of the three seats on the TEC was vacant, and the two remaining commissioners could not agree on a decision. Thus, the commission did not overturn the decision of the tribunal, and it remained in effect. Edwards then sued in the trial court under section 212.201 of the Texas Labor Code. See id. § 212.201. The trial court conducted a trial de novo and found substantial evidence to support the TEC ruling. See id. § 212.202.

STANDARD OF REVIEW

Judicial review of an administrative decision regarding a former employee's right to unemployment benefits requires a trial de novo with substantial evidence review and, thus, is presumptively valid. Mercer v. Ross, 701 S.W.2d 830, 831 (Tex.1986); Olivarez v. Aluminum Corp. of Am., 693 S.W.2d 931, 932 (Tex.1985); Texas Employment Comm'n v. Lewis, 777 S.W.2d 817, 819-20 (Tex.App.--Fort Worth 1989, no writ); Lairson v. Texas Employment Comm'n, 742 S.W.2d 99, 101 (Tex.App.--Fort Worth 1987, no writ); see TEX. LAB.CODE ANN. § 212.202 (Vernon 1996). Accordingly, there is an evidentiary trial, but only to determine whether the agency's ruling is free of the taint of any illegality and is reasonably supported by substantial evidence. Firemen's & Policemen's Civil Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex.1984); McKinley Iron Works v. Texas Employment Comm'n, 917 S.W.2d 468, 470 (Tex.App.--Fort Worth 1996, no writ). "Substantial evidence" means that, on the evidence as a whole, reasonable minds could have reached the same conclusion the agency reached. Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex.1988), cert. denied, 490 U.S. 1080, 109 S.Ct. 2100, 104 L.Ed.2d 662 (1989); Dotson v. Texas State Bd. of Medical Examiners, 612 S.W.2d 921, 922 (Tex.1981); McKinley, 917 S.W.2d at 470. The following principles govern a trial court's substantial evidence review:

The court will hear and consider evidence to determine whether reasonable support for the agency's order exists, but the agency remains the primary factfinding body, and the question for the trial court is strictly one of law.

The trial court may not substitute its judgment for the state agency's judgment on controverted fact issues.

If the agency heard substantial evidence supporting either an affirmative or a negative finding, the trial court must allow the agency's order to stand, even if the court would have reached a different result.

The trial court may not set aside the agency's ruling merely because there was conflicting or disputed testimony.

The trial court is not concerned only with the correctness of the agency's order, but with its reasonableness.

McKinley, 917 S.W.2d at 470 (citing Firemen's & Policemen's Civil Serv. Comm'n, 662 S.W.2d at 956); see also Olivarez, 693 S.W.2d at 932; Lewis v. Metropolitan Sav. & Loan Ass'n, 550 S.W.2d 11, 13 (Tex.1977).

The party seeking to set aside such an agency decision has the burden of proving it is not supported by substantial evidence. Mercer, 701 S.W.2d at 831; City of San Antonio v. Texas Water Comm'n, 407 S.W.2d 752, 758 (Tex.1966). If the trial court finds substantial evidence supporting the agency's ruling, it must yield to the discretion exercised by the agency empowered to make that ruling. Firemen's & Policemen's Civil Serv. Comm'n, 662 S.W.2d at 956; McKinley, 917 S.W.2d at 470. The trial court may only examine the evidence the agency heard and determine if it was incredible, perjured, or unreasonable. Id.; Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 440 (1946). The reviewing court may not consider whether it was correct. Id. Accordingly, we may only set aside such an administrative decision if the agency decided without regard to the law or the facts, and the decision is, therefore, unreasonable, arbitrary, or capricious. Mercer, 701 S.W.2d at 831; Texas Employment Comm'n v. Holberg, 440 S.W.2d 38, 42 (Tex.1969).

Under section 207.044(a) of the Texas Labor Code, an individual is disqualified from receiving unemployment benefits if his former employer discharged him for misconduct. TEX. LAB. CODE ANN. § 207.044(a) (Vernon 1996). Section 201.012 of the Texas Labor Code provides a statutory definition for misconduct.

(a) "Misconduct" means mismanagement of a position of employment by action or inaction, neglect that jeopardizes the life or property of another, intentional wrongdoing or malfeasance, intentional violation of a law, or violation of a policy or rule adopted to ensure the orderly work and the safety of employees.

(b) The term "misconduct" does not include an act in response to an unconscionable act of an employer or superior.

Id. § 201.012. Accordingly, to prevail in the trial court, Edwards had to prove that no reasonable factfinder could have found his actions to be misconduct under this statute.

PARTY ADMISSION

Edwards first contends the trial court erred by admitting into evidence, as a party-opponent admission, his attorney's letter appealing the TEC appeal tribunal's unfavorable decision. Edwards argues the trial court should not have admitted the letter as a party admission under rule 801(e)(2) of the Texas Rules of Civil Evidence because (1) nothing in the letter was inconsistent with Edwards's position at trial, and (2) anything that his attorney may have admitted in the letter was not relevant. See TEX.R. CIV. EVID. 801(e)(2).

We will not address Edwards's argument that the letter was not inconsistent with his position for trial because this issue was not raised at trial and is not properly preserved. To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion. TEX.R.APP. P. 52(a); see also TEX.R. CIV. EVID. 103(a)(1). If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991) (op. on reh'g).

At trial, Edwards's attorney objected that this evidence was not relevant. The trial court then admitted the evidence. Edwards's attorney then asked what it was he was supposed to have admitted, and opposing counsel responded that "the letter speaks for itself." The argument that the admission was not inconsistent with Edwards's position at trial was first raised in Edwards's motion for a new trial. Thus, the trial judge had no opportunity to know the nature of this alleged error at trial and could not rule on it before admitting this evidence. TEX.R.APP. P. 52(a); TEX.R. CIV. EVID. 103(a)(1); PGP Gas Prod., Inc. v. Fariss, 620 S.W.2d 559, 560 (Tex.1981). The complaint on appeal must be the same as that presented in the trial court. Rogers v. Stell, 835 S.W.2d 100, 101 (Tex.1992); Mixon v. Nat'l Union Fire Ins. Co., 806 S.W.2d 332, 334 (Tex.App.--Fort Worth 1991, writ denied). Edwards has waived this argument, and we will not address its merits.

However, Edwards's relevancy argument is properly preserved. Under rule 401, any evidence is relevant if it...