Fuller v. Mitchell, 14827

• Decision Date: 28 May 1954
• Docket Number: No. 14827,14827
• Citation: 269 S.W.2d 517
• Parties: FULLER v. MITCHELL et al.
• Court: Texas Court of Appeals

Page 517

269 S.W.2d 517

FULLER v. MITCHELL et al.

No. 14827.

Court of Civil Appeals of Texas, Dallas.

May 28, 1954.

Rehearing Denied June 25, 1954.

Piranio, Piranio & Fults, Dallas, for appellant.

H. P Kucera, City Atty., Ted. P. MacMaster, Asst. City Atty., Dallas, for appellees.

YOUNG, Justice.

Appellant here complains of his suspension and dismissal from the Police Department, City of Dallas; naming as defendants in his petition for mandamus to the District Court, members of the Trial Commission, Chief of Police Hansson, City Manager Crull, Mayor Thornton, and named Councilmen. Appellees answered by motion to dismiss and for summary judgment under Rule 166-A, T.R.C.P., with affidavits and voluminous exhibits in support; relator Fuller, in turn, filing affidavits. Upon a hearing, the court found an 'absence of genuine issue of any material fact,' with summary order entered that relator take nothing by this suit, etc.; which rendition is now presented for review.

The municipality of Dallas (a Home Rule City) has not adopted the contents of Art. 1269m, V.A.C.S., and therefore must rely on its own Charter provisions, inclusive of rules and regulations promulgated by a duly created Civil Service Board, relative to the appointment, employment, removal or suspension of employees in a classified service. For instance, sec. 66 thereof authorizes the organization of a Police Department, under a Chief as Director; sec. 71, that the Chief of Police shall have exclusive right to suspend any officer or Department employee for incompetency, neglect of duty, immorality, drunkenness, failure to obey orders, etc. Sections 114 through 132 provide for the set-up of Civil Service Board and division of services into classified and unclassified; the creation of a Trial Board to hear appeals made by an employee in the classified service. Pursuant to sec. 117, city Charter, a code of rules and regulations has been adopted by the Civil Service Board, approved by City Council; and with reference to a Trial Commission, outlining the procedure for appeal by an employee from the ruling of a Department head or the City Manager; sec. 121 providing in such connection: 'Discharge of Employe After Probation Period.-And officer or employe in the Classified Service may be removed, suspended, laid off or reduced in grade by the City Manager, in the event the Charter of the City of Dallas should be amended to provide for a City Manager, or the head of the department in which he is employed after the three months' probation period has expired; but, if demanded by such officer or employe, it shall be the duty of the officer discharging him to furnish him a written statement of the reasons therefor and the said discharged or reduced officer or employe shall have the right to demand a public hearing upon said charges within a reasonable time thereafter before the Trial Board, as hereinafter defined.' Section 122 reads in part: 'The said Board shall have final jurisdiction to hear and decide all appeals made to them by any discharged or reduced officer or employe in the Classified Service, and the judgment or decision of a majority of said Board shall be final.' Also, Rule 17, section 2E, provides: 'The Trial Board reserves the right to accept as evidence a transcript of testimony or any written evidence or exhibits submitted in a hearing before the City Manager of the director of the department, when same are available, with the understanding that both sides of the case may submit additional evidence.'

Background of the instant appeal may be stated briefly: Fuller, a police officer of the City of Dallas, was indefinitely suspended from the Department by Chief Hansson in letter of June 23, 1953; due appeal from this action being made to City Manager Crull, who at a hearing on July 30, 1953, affirmed the Department order by enlargement to permanent suspension and termination of employment. Appellant then requested a further hearing before the Civil Service Trial Board; also an amplification of the charges against him; which amended specifications are attached hereto, marked as Exhibit 'A'. A Trial Board was duly appointed and on August 31 proceeded to hear the appeal with evidence adduced by the respective parties; transcript of testimony covering pages 47 to 246 of this record, witness index listing 29 individuals. The Board decision in form of a letter to Mr. Fuller, dated Sept. 5, 1953, again affirming the suspension of appellant, is also attached and designated Exhibit 'B'. This application for writ of mandamus followed, appellant as relator claiming not to have received a fair trial at the Board hearing; that said agency abused its discretion in the consideration of improper evidence, also in permitting the introduction of inadmissible and highly prejudicial matter by way of ex parte affidavits. Then followed the motion of appellees for summary judgment, countered by relator's reply and affidavits.

Prior to a consideration of appellant's charges of error, we feel obliged to take note of the City's plea to the jurisdiction of the District Court ot entertain this proceeding, perforce of Charter Section 122 above quoted; providing, as it does, that the judgment of the Civil Service Trial Board shall be 'final' with respect to all appeals made to them 'by any discharged or reduced officer or employe in the Classified Service * * *.' This provision was incorporated into and made part of Section 1, Rule 17, of the Board Regulations, City of Dallas, in 1949. In such connection appellees argus that a court should recognize an inherent right of appeal from the decision of an administrative body only when the administrative action complained of violates a constitutional right. In view of City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, we conclude that appellees' said counter point is well taken, and thereby in further support of the City's grant of summary judgment. Our Supreme Court in the case of Hancock has construed the State Civil Service Law of 1947 as amended; more particularly, Art. 1269m, V.A.C.S., providing for an appeal on dismissal or suspension of a Fire Department officer, but not inclusive of a mere demotion. The City of Amarillo had adopted this Civil Service law; Hancock subsequently seeking a judicial review of the City Trial Board's action in reducing him from rank of captain to driver; the District Court assuming jurisdiction with trial and judgment of favor of Hancock; affirmed by the Court of Civil Appeals. 233 S.W.2d 339. On grant of writ of error and order of dismissal of cause for want of jurisdiction, the Supreme Court (150 Tex. 231, 239 S.W.2d 790) took occasion to say (emphasis supplied): '* * * Although the legislature specifically denies judicial review, decisions of an administrative body may be attacked in court if they violate some provision of the State or Federal Constitution. Stockwell v. State, 110 Tex. 550, 221 S.W. 932, 12 A.L.R. 1116; Rowland v. City of Tyler, Tex.Com.App., 5 S.W.2d 756. But all other decisions of such an administrative body which do not affect vested property rights or otherwise violate some constitutional provision are valid, and the mere fact that the legislature has denied judicial review does not invalidate them. Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61; Texas Highway Comm. v. El Paso Building and Construction Trades Council (149 Tex. 457), 234 S.W.2d 857. The corollary of this proposition is that the courts should recognize an inherent right of appeal from an administrative body created by an act silent on the question of appeal only where the administrative action complained of violates a constitutional provision. Darling Apartment Co. v. Springer, i5 Del.Ch. 420, 22 A.2d 397, 137 A.L.R. 803. * * * So, in order to sustain the jurisdiction of the district court here, plaintiff must bring himself within the protection of the due process clause. To do that, the right affected adversely here by the action of this administrative body must be vested property right. * * * Clearly plaintiff had no vested property right in his captaincy before the passage of the Civil Service Act in question. Art. 1269m. He could be employed, promoted, demoted, or discharged within the judgment and discretion of his department head. * * * The city of Amarillo may abolish the particular captain's position which plaintiff occupies or all captains' positions, for that matter, or the rank of captain entirely. This being true, a captaincy in the Fire Department of the City of Amarillo under Art. 1269m is not property and the right to it is not a property right protected by due process. Consequently, there is no inherent right to a judicial review of an order of demotion by the Civil Service Commission duly entered after proper procedure. The legislature conferred a benefit in providing that only the Civil Service, Commission may demote and in doing so the legislature itself has fixed the limit of the benefit.' In Simpson v. City of Houston, Tex.Civ.App., 260 S.W.2d 94, 97, the Galveston Court ruled similarly in holding: 'The statutory rights conferred by Art. 1269m, V. A.T.S., practically guaranteed a tenure of employment for them during good behavior, but such rights are not vested rights. So, where a policeman is dismissed from his employment for statutory cause and his dismissal is sustained by the Commission under the application of the substantial evidence rule, his constitutional rights are not involved.' And likewise, Aller v. Detroit Police Department Trial Board, 309 Mich. 382, 15 N.W.2d 676, 678, Holds in part: 'The proceeding was administrative and, under the terms of the charter, the finding of fact by the board is final if supported by evidence.'

From above authorities it would appear, at least to us, that the right to be a police officer is in the nature of a privilege as opposed to property, involving no...