Harris County v. Going
| Decision Date | 02 March 1995 |
| Docket Number | No. 01-93-00406-CV,01-93-00406-CV |
| Parties | HARRIS COUNTY, Texas, Appellant v. Ronald F. GOING, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Mike Driscoll, Barbara Toby Baruch, Houston, for appellant.
Olney G. Wallis, Roy G. Romo, Houston, for appellee.
Ronald F. Going, pro se.
Before OLIVER-PARROTT, C.J., and MARIBAL and O'CONNOR, JJ.
A jury found that Harris County had demoted and terminated Ronald F. Going's employment in violation of Going's right to exercise free speech under the Texas Constitution. We reverse and render judgment in favor of Harris County.
Factual background
In 1982, Harris County hired Going as a patrolman with the precinct two park patrol. The park patrol was headquartered in 310-acre Deussan Park; its officers' primary duty was to patrol Deussan Park and other parks located in the precinct.
The park patrol was under the control of precinct two County Commissioner Jim Fonteno. Captain E.J. "Pappy" Stutts was Going's immediate supervisor. Stutts' supervisor was Captain Floyd Reynolds, precinct two's director of security. On May 26, 1986, Going was promoted to sergeant. Stutts had recommended the promotion. After he was promoted to sergeant, Going supervised several patrolmen, including Gary Jones and Richard Trevino.
In May 1987, Officers Trevino, Gary Jones, and David Jones (no relation to Gary) met with Floyd Reynolds to complain about Going. Gary Jones testified he met with Reynolds to express concerns regarding the safety of officers under Going's command. Trevino testified he told Reynolds that he had loaned $1,500 to Going in January 1986. The purpose of the loan, and whether it was past due, was disputed at trial: Trevino testified Going borrowed the money to pay overdue child support and did not repay it; Going testified the money was to pay for newspaper ads for a fishing lure business.
On August 31, 1987, Reynolds demoted Going to patrolman. Going asked to meet with Commissioner Fonteno to discuss the demotion. Fonteno, Going, Stutts, and Reynolds met on October 21, 1987. Going testified at trial, "I took several documents and computer printouts that I had put together over the basis of the demotion to show [Fonteno] that everything I was being demoted for wasn't true." In a document entitled "Chronological Order of Events From May of 1987," Going stated, among other things, that on June 5, 1987, "Sgt. Going was advised he was going to get demoted and then fired." He also indicated that Floyd Reynolds demoted him for:
1. Last 20 work sheets--even miles
2. Too many miles patrolling park
3. Extra job sheet
4. Loan between employees
Going also included a document entitled "Violations of Our Rules and Regulations Overlooked by 270 [Stutts] and/or 288 [Reynolds]." This document consisted of the following list:
1. 1 officer 3 complaints from females
2. 2 officers took patrol car while on duty and went to party
3. 1 officer came in late 11 times in 60 days
4. 1 officer left early at least 4 times in 60 days and 270 was notified
5. 1 officer tore seat in patrol car with radio holder
6. 1 officer hit tree with patrol car
7. 1 officer had auto pedestrian
8. 1 officer let transmission get over 4 qts. low
9. 1 captain was sideswiped by 18 wheeler
10. 1 officer made a mistake and had to shoot a person
11. 1 officer made a mistake and another person died at the very least indirectly as a result.
Two days after the meeting, Commissioner Fonteno affirmed Going's demotion.
In December 1987, Going injured his knee. On December 28, Stutts sent Going a letter asking him for a physician's statement describing the nature and extent of the injury and specifying when Going could return to work. Going testified he provided the physician's statement within three hours of his receipt of this letter.
On January 13, 1988, Stutts sent a memo to Fonteno in which he said:
On several occasions during 1987, patrolman Ronald F. Going was instructed by myself and Sgt. Gary Jones to qualify with his service pistol as required by our rules (# 30) and Constable Douglas' rules.
Patrolman Going failed to qualify by not taking the required test in 1987 and violated rules # 4, 17E and 27E of the Park Police rules dated August 17, 1984.
I hereby recommend the aforementioned employee be terminated.
Fonteno returned the memo with the following handwritten note:
1-14-88[:] Pappy[,] You are in charge of security for Pct. 2--Use your own judgment as to what is fair to all parties involved and take whatever action you deem necessary. JF
On January 15, 1988, Stutts told Going he was terminated. Going testified Stutts said he was being discharged because he took too long to submit a physician's statement. However, Stutts testified that, as his January 13 memo indicated, Going was terminated because he did not comply with the rules concerning firearm qualification.
After he was terminated, Going filed a grievance. The county resolution committee concurred with the decision to terminate him.
Going then brought this lawsuit against Harris County, Fonteno, and Stutts. In it he alleged the following causes of action: wrongful discharge, retaliation for whistle blowing, wrongful discharge in retaliation for filing a worker's compensation claim, due process violations involving deprivation of liberty and property interest, violation of freedom of speech, breach of employment contract, intentional and negligent infliction of emotional distress, and conspiracy to wrongfully terminate. At trial, the court directed a verdict in favor of Commissioner Fonteno, and the only questions submitted to the jury were questions regarding Going's free speech claim against Harris County and Stutts, and his intentional infliction of emotional distress claim against Stutts. Jury question number one, and the jury's answers, read as follows:
Do you find that any of the following action was taken by any of the persons listed below in violation of Ronald F. Going's right to exercise free speech under the constitution of the State of Texas and which proximately caused damage to Ronald F. Going?
Action: Demotion from Sergeant to patrolman
Answer "yes" or "no" as to each of the following persons:
a. Harris County, Texas yes
b. E.J. Stutts no
Answer "yes" or "no" as to each of the following persons:
a. Harris County, Texas yes
b. E.J. Stutts no
To answer "yes" to any of the above Question 1 a-d, you must find that the speech for which Ronald F. Going was terminated addressed a matter of public concern rather than one of personal interest.
In a ten-to-two verdict, the jury found in favor of Stutts on all questions, but, as indicated above, found that Harris County demoted and terminated Going in violation of his right to exercise free speech. The jury awarded damages in the amount of $91,680 and found Going should be reinstated as a Harris County employee, in the position of sergeant. The trial court made reinstatement conditional on Going's satisfaction of physical and legal requirements for the position.
In point of error 11, Harris County asserts there is no evidence to support a finding of liability for the deprivation of Going's right to free speech. Put another way, Harris County asserts there is no evidence that Going's demotion and termination were the result of a policy attributable to Harris County. Harris County argues that the illegal acts of state officials are not the acts of the government, and that even if an employee or official had deprived Going of his constitutional rights, it was not the act of Harris County.
We note initially that the Texas Supreme Court has recently held that there is no implied right of action for damages arising under the free speech provision of the Texas Constitution. City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex.1995). Suits for equitable remedies for violation of constitutional rights are not prohibited. Id. at 149. Going is not, therefore, entitled to money damages. However, he also sought the equitable remedy of reinstatement. We therefore consider Harris County's immunity argument.
Harris County correctly notes that a governmental entity is not liable for the torts of its officers or agents, unless the law provides for such liability. Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976); Dillard v. Austin ISD, 806 S.W.2d 589, 592 (Tex.App.--Austin 1991, writ denied); see, e.g., TEX.CIV.PRAC. & REM.CODE §§ 101.021, .025(a) (the Texas Tort Claims Act). When a plaintiff sues over the violation of rights resulting from the unlawful acts of public servants, the plaintiff must bring the action against some individual in authority, not against the governmental unit itself. Dillard, 806 S.W.2d at 598; Bagg v. University of Texas Medical Branch, 726 S.W.2d 582, 585 (Tex.App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.). We agree that Harris County cannot be liable for any unconstitutional or illegal acts of its employees. Bagg, 726 S.W.2d at 584 ().
Going agrees that Harris County cannot be held vicariously liable under the theory of respondeat superior for the unconstitutional acts of its employees. He argues, however, that because he was "demoted and then terminated by a high-ranking official directly accountable to the Harris County electorate," the constitutional violation is attributable to Harris County. He relies upon Monell v. Department of Social Serv., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1977), which holds that although a local government may not be sued under 42 U.S.C. § 1983 for an injury inflicted solely by its employees or agents, it may be liable when "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be...
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