Reyna v. City of Weslaco

• Decision Date: 27 February 1997
• Docket Number: No. 13-95-328-CV,13-95-328-CV
• Citation: 944 S.W.2d 657
• Parties: Gilbert REYNA, Jr., Alfredo Ortiz, Jr., and Eliberto Hernandez, Appellants, v. The CITY OF WESLACO, Texas, et al., Appellees.
• Court: Texas Court of Appeals

Page 657

944 S.W.2d 657

Gilbert REYNA, Jr., Alfredo Ortiz, Jr., and Eliberto Hernandez, Appellants, v. The CITY OF WESLACO, Texas, et al., Appellees.

No. 13-95-328-CV.

Court of Appeals of Texas Corpus Christi.

Feb. 27, 1997.

Rodolfo D. Sanchez, Weslaco, for appellants.

Catherine L. Kyle, James Ludlum, Jr., Anthony G. Brocato, Ludlum & Ludlum, Austin, Darrell G. Noga, Robert M. Manley, Cooper, Aldous & Scully, Dallas, for appellees.

Before SEERDEN, C.J., and FEDERICO G. HINOJOSA, Jr. and YANEZ, JJ.

OPINION

YANEZ, Justice.

This is an appeal of a summary judgment order dismissing appellants' civil rights claims against the City of Weslaco. By eight points of error, appellants challenge the trial court's finding as to the constitutionality of the City's policy regarding access to misdemeanor complaints and the judicial, prosecutorial, and qualified immunities granted to the municipal court judge and city attorney. We reverse and remand.

On separate occasions, the City of Weslaco municipal court denied Alfredo Ortiz, Jr, Gilbert Reyna, Jr., and Eliberto Hernandez, appellants, immediate access to the complaints charging them with class C misdemeanors, which were to be adjudicated at the municipal court. Ortiz was arrested on January 11, 1991. Despite efforts since mid-February 1991, his attorney was not provided a copy of the complaint by the municipal court until April 23, 1991, three days before Ortiz's trial. At trial, Ortiz was found guilty and assessed the maximum fine plus court costs. On May 8, 1991, Hernandez sought a copy of the complaint against him from the municipal court, pursuant to a summons he received the month before. The municipal court clerk explained that she could not give him a copy of the complaint. On May 31, 1991, the charge against Hernandez was dropped. On September 14, 1991, Reyna was arrested by city police without explanation or presentation of a warrant for his arrest. On September 16, 1991, Reyna appeared before the municipal judge and requested an explanation for his arrest and a copy of the complaint against him. The judge could not locate the complaint against Reyna. The judge, however, offered Reyna credit for his time served and a fine. Reyna paid the fine and left.

Ortiz, Reyna, and Hernandez sued the City of Weslaco and its municipal judge and city attorney in their official capacities under the Federal Civil Rights Act, 42 U.S.C.A. § 1983 (1994), the Texas Tort Claims Act, TEX. CIV. PRAC. & REM.CODE Ann. §§ 101.001-101.109 (Vernon 1986 & Supp.1996), and the Texas Constitution, art. 1 §§ 10 & 19; art. 2, § 1; art. 4, § 10, seeking monetary, declaratory, and injunctive relief. By their pleadings, appellants alleged that the City of Weslaco, through its municipal judge and city attorney, adhere to a policy or custom that denied appellant's immediate access to the complaints against them. Appellants also alleged that by policy or custom of the City of Weslaco, the municipal judge exercised prosecutorial functions that improperly were ceded to him by the city attorney, ¹ which resulted in violations of appellants' due process rights. The City moved for summary judgment, based on judicial, prosecutorial, qualified and sovereign immunity. The City also argued that there was no evidence of an official custom or policy that denied appellants their constitutional rights, which is needed for an action under 42 U.S.C. § 1983. The trial court granted summary judgment but did not specify the grounds for the order.

On appeal, appellants challenge only the dismissal of their claims for injunctive and declaratory relief under Section 1983, including attorney's fees, and the Texas Constitution. By their request for declaratory relief, appellants seek an announcement that the delay of their access to the complaints against them caused by the municipal judge and city attorney violated their rights under both the United States and Texas Constitutions and under the Texas Code of Criminal Procedure. By the request for "injunctive and supplemental relief" in their petition, appellants seek a permanent injunction against the alleged unconstitutional practices by City of Weslaco, an order directing the City to insure that municipal court personnel are properly trained and that the city attorney and his staff carry out their functions in a constitutional manner, and damages to remedy past and ongoing violations against appellants.

Because appellants' seventh point of error addresses the substance of their claims against appellees, we address it before the other points, which challenge only the immunities defenses. By point of error seven, appellants claim the trial court erred in finding no material issue of fact concerning the existence of an official custom or policy that denied appellants their constitutional rights. In their reply brief, appellees assert that appellants lack standing to assert any violations of their constitutional rights.

Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment in its favor as a matter of law. TEX.R. CIV. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). The burden of proof is on the movant, and all doubts regarding material fact are resolved against the movant. Nixon, 690 S.W.2d at 548-49; Roskey v. Texas Health Facilities Comm'n, 639 S.W.2d 302, 303 (Tex.1982). For review on appeal, evidence favorable to the nonmovant must be taken as true, and every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. Nixon, 690 S.W.2d at 548-59. To sustain a summary judgment dismissing a claim, the record must either negate an essential element of the plaintiff's cause of action or establish an affirmative defense. Bangert v. Baylor College of Medicine, 881 S.W.2d 564, 566 (Tex.App.--Houston [1st Dist.] 1994, writ denied). Where a court did not specify the basis for summary judgment, the appealing party must show that each of the independent grounds in the summary judgment motion is insufficient to support the order. Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.--Houston [1st Dist.] 1988, writ denied). Summary judgment evidence may include affidavits from competent affiants, based on personal knowledge and setting forth facts that would be admissible in evidence. Tex.R. Civ. P. 166a(f). Legal conclusions in affidavits have no probative force. Life Ins. Co. v. Gar-Dal, Inc., 570 S.W.2d 378, 381-82 (Tex.1978). Pleadings do not constitute summary judgment evidence, but may be considered in determining whether a legally enforceable claim has been pleaded. Perser v. City of Arlington, 738 S.W.2d 783, 784 (Tex.App.--Fort Worth 1987, writ denied).

A municipality may be liable under Section 1983 if its policy or custom caused a constitutional injury. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 165, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993). The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to notice of the nature and cause of an accusation against them. U.S. Const. amend VI. This guarantee is made applicable to the states by incorporation into the Due Process Clause of the Fourteenth Amendment. In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 508, 92 L.Ed. 682 (1948). The purpose of a complaint used as a misdemeanor charging instrument is to apprise the accused of facts surrounding the offense with which he is charged so that he may prepare a defense. Kindley v. State, 879 S.W.2d 261 262 (Tex.App.--Houston [14th Dist.] 1994, no writ.) In misdemeanor cases, it is not necessary that an accused be furnished with a copy of the indictment or information before trial, but upon demand he or his counsel must be given one as early as possible. TEX.CODE CRIM. PROC. ANN. art. 25.04 (Vernon 1989).

In viewing the summary judgment evidence, we first recognize that neither the City of Weslaco, the municipal judge, nor the city attorney disputed that appellants were denied immediate access to the instruments charging them with class C misdemeanors, the complaints. The municipal judge maintained that it is the policy of the City to provide copies of complaints to defendants and that the City has no official policy or custom of denying citizens charged with misdemeanor offenses their constitutional rights. The evidence indicated, however, that the municipal court, as a policy, does not include complaints with summonses to the accused, but rather notifies the accused of the charges against them orally once the accused appear in court. The city attorney admitted to instructing the municipal court that attorneys seeking complaints for defendant clients should be referred to his office so that he may "deal with them there." As matter or record, there was a three-month delay by the municipal court or prosecutor in making a copy of a complaint available to the defense attorney requesting it, and also an instance in which the municipal judge could produce no record of an accused's arrest when he appeared before the judge. In their respective affidavits, the judge and prosecutor state that at all times relevant to this action they were acting in good faith. These statements are legal conclusions and have no probative force. Because the City's standing claim was not presented to the trial court in their motion for summary judgment, it may not be considered in assessing the merits of the motion on appeal. McKnight v. Riddle & Brown, P.C., 877 S.W.2d 59, 62 (Tex.App.--Tyler 1994, writ denied). We therefore hold that the trial court erred in finding no issue of material fact in relation to appellees' claim that they followed no custom or policy that denied appellants their constitutional rights. Point of error seven is sustained.

Appellant's first four points of error challenge the absolute immunities effectively granted to appellees by the...