Firemen's and Policemen's Civil Service Com'n of City of Port Arthur v. Hamman, A-11060

• Decision Date: 25 May 1966
• Docket Number: No. A-11060,A-11060
• Citation: 404 S.W.2d 308
• Parties: FIREMEN'S AND POLICEMEN'S CIVIL SERVICE COMMISSION OF the CITY OF PORT ARTHUR, Texas, et al., Petitioners, v. Glenn F. HAMMAN, Respondent.
• Court: Texas Supreme Court

Page 308

404 S.W.2d 308

FIREMEN'S AND POLICEMEN'S CIVIL SERVICE COMMISSION OF the CITY OF PORT ARTHUR, Texas, et al., Petitioners, v. Glenn F. HAMMAN, Respondent.

No. A-11060.

Supreme Court of Texas.

May 25, 1966.

Rehearing Denied June 29, 1966.

H. P. Robichau, Jr., Beaumont, Cary Young, Port Arthur, for petitioners.

Keith, Mehaffy & Weber, Beaumont, for respondent.

STEAKLEY, Justice.

Glenn F. Hamman, a policeman with the rank of Inspector, was indefinitely suspended by the Director of Police of Port Arthur, Texas, on May 13, 1964. He appealed to the Firemen's and Policemen's Civil Service Commission which reduced his suspension to six months without pay. He appealed this order to the district court. On June 24, 1964, Hamman was again indefinitely suspended for different acts and this suspension was upheld upon appeal to the Commission. He again appealed to the district court where the two appeals were consolidated for trial. The trial court upheld the first suspension but set aside the second. The Court of Civil Appeals affirmed. 393 S.W.2d 406. It reasoned that since the second suspension rested on acts which occurred prior to the date of the first suspension, the second suspension was precluded by Sec. 16 of Article 1269m ¹ and our opinion in Bichsel v. Carver, 159 Tex. 393, 321 S.W.2d 284. We granted the Commission's application for writ of error to review this question. Hamman, who also appealed the trial court judgment upholding the first suspension, and whose points of error were overruled by the Court of Civil Appeals, filed application for writ of error conditioned upon our granting that of the Commission. As is our practice, we granted the conditional application upon granting that of the Commission.

We sustain the Commission's point of error that the Court of Civil Appeals misinterpreted Sec. 16 of Article 1269m and our holding in Bichsel. Section 16 of Article 1269m provides:

'The Chief or Head of the Fire Department or Police Department of the city government shall have the power to suspend indefinitely any officer or employee under his supervision or jurisdiction for the violation of civil service rules, but in every such case the officer making such order of suspension shall, within one hundred and twenty (120) hours thereafter, file a written statement with the Commission, giving the reasons for such suspension, and immediately furnishing copy thereof to the officer or employee affected by such act, said copy to be delivered in person to such suspended officer or employee by said department head. * * *

'* * * In any civil service hearing hereunder, the department head is hereby restricted to his official written statement and charges, which shall not be amended, and no act or acts may be complained of by said department head which did not happen or occur within six (6) months immediately preceding the date of suspension by the department head.'

It is clear that an amendment of an original statement or charge is impermissible. We said in Bichsel 'We must agree * * * that the statute does limit the Chief to his original written charges which may not be amended.' It was pointed out in Bichsel that the City Attorney had conceded the insufficiency of the charges and had requested permission to withdraw them; the second or amended set of charges was described in the opinion as alleging 'virtually the same facts, and the charges were substantially the same as those in the original set. They related to and grew out of the same incident.' Section 16 of Article 1269m does not, however, purport to prohibit more than one charge in any given six-months period. A statement or charge based on acts and incidents unrelated to and differing from those supporting a pending charge is not an amendment of the existing charge and is not barred by the statute. A six-months limitation period in favor of the policeman or fireman is established and a charge is limited to acts occurring during such period. But the statute does not provide immunity from accountability for all acts occurring six months prior to and different from a particular original filing. We pointed out in Bichsel that amendments of charges are generally permitted but it is otherwise in this type of case because of the express provisions of the statute. We find no basis for extending the statutory language to preclude a charge later in time and based upon different acts and conduct, because such acts occur within six months of a previously pending charge. Here we have two different charges based on different acts; the succeeding charge and suspension are not precluded by the fact that the acts upon which they were based occurred within six months preceding the date of the suspension under the first charge.

In his application for writ of error, Hamman presented points of error asserting in substance that he was entitled to a preponderance of evidence--as distinguished from a substantial evidence--trial on his appeal to the district court; that he suffered injury and a deprivation of due process of law because of the participation in the hearing of one member of the Commission who had also investigated his acts and conduct; and that the six-months suspension upheld by the trial court and the Court of Civil Appeals was not based on substantial evidence and represented arbitrary action. ²

Hamman's appeal to the courts is governed by the substantial evidence rule as correctly held by the Court of Civil Appeals. Section 18 of Article 1269m provides that appeals to the district court from decisions of the Commission 'shall be tried de novo.' A substantial evidence trial is a trial de novo and is in full compliance with the statutory requirement of a de novo trial on appeal. In Fire Department of City of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664 (1949), this Court considered the appeal provisions of Section 18 of Article 1269m and said:

'The extent of such a review has been rather generally held to be limited to an ascertainment of whether there was substantial evidence reasonably sufficient to support the challenged order (citing cases). There is nothing in Section 18 to suggest that the district court is empowered to do more. Although the statute provides for a trial de novo, this term as applied to reviews of administrative orders has come to have a well-defined significance in the decisions of this state, and as a rule has been taken to mean a trial to determine only the issues of whether the agency's ruling is free of the taint of any illegality and is reasonably supported by substantial evidence (Citing cases).'

To the same effect see Kavanaugh v. Holcombe, Tex.Civ.App., 312 S.W.2d 399 (writ ref. n.r.e. 1958); accord Bichsel v. Strickland, 371 S.W.2d 785 (Tex.Civ.App.1963, no writ hist.), and cases cited; see also Board of Water Engineers of Texas v. Colorado River Municipal Water District 152 Tex. 77, 254 S.W.2d 369 (1953). The Legislature did not in Section 18 of Article 1269m purport to provide for or require a de novo trial on appeal in the full sense. Cf. Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686 (Tex.Sup.1964), and Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958).

We further hold that Hamman was not denied procedural due process of law in the fact that one of the three members of the Commission participated in the investigation of the acts supporting the six-months suspension ordered by the Commission. It is argued by Hamman that participation of a Commission member in both the investigatory and decisional phases of an administrative proceeding is a disqualifying fact and imposes a taint of illegality upon the proceeding which, in turn, destroys the presumption of validity of the order of the Commission. Stated otherwise, that since the order here will be upheld by the courts in a substantial evidence trial if it has support in the evidence, regardless of the existence of contrary evidence, Hamman has not under such circumstances been afforded procedural due process of law.

The statute imposes duties of investigation and inspection upon the Commission. Section 5a of Article 1269m reads, in part:

'The Commission may make investigations concerning, and report upon all matters touching, the enforcement and effect of the provisions of this Act, and the rules and regulations prescribed hereunder; shall inspect all institutions,...