Thompson v. City of Austin

• Decision Date: 24 April 1998
• Docket Number: No. 03-97-00490-CV,03-97-00490-CV
• Citation: 979 S.W.2d 676
• Parties: 8 A.D. Cases 167, 12 NDLR P 290 Martin THOMPSON and Charles Wood, Appellants, v. CITY OF AUSTIN, Appellee.
• Court: Texas Court of Appeals

Page 676

979 S.W.2d 676

8 A.D. Cases 167, 12 NDLR P 290

Martin THOMPSON and Charles Wood, Appellants, v. CITY OF AUSTIN, Appellee.

No. 03-97-00490-CV.

Court of Appeals of Texas Austin.

April 24, 1998.

D. Phillip Adkins, Austin, for Appellant.

Christopher A. Knepp, Vinson & Elkins, L.L.P., Austin, for Appellee.

Before POWERS, ABOUSSIE and B.A. SMITH, JJ.

BEA ANN SMITH, Justice.

Appellants, Martin Thompson and Charles Wood, sued the City of Austin for failure to reappoint them as municipal court judges, alleging discrimination and violations of the Open Meetings Act and the Government Code. The trial court granted summary judgment in favor of the City on all causes of action. The principal issue presented is whether municipal court judges are employees under the Texas Commission on Human Rights Act. Because we hold that they are not employees and find no other violations, we will affirm the trial court's judgment.

BACKGROUND

The City Council of Austin (the "Council") appointed Thompson and Wood to serve as municipal court judges for a two-year term, effective March 15, 1992. From the beginning of their appointment, Thompson and Wood vociferously advocated the rights of Thompson and Wood brought suit alleging that by not reappointing them as municipal court judges, the Council discriminated against appellants because of their individual disabilities. Appellants further assert that the clerk of the court and the Council retaliated against them for their exuberant advocacy on behalf of the disabled and their insistence upon making the municipal court building more accessible. Appellants believe these actions of the Council violated the Texas Commission on Human Rights Act (TCHRA), which protects employees from unlawful employer discrimination. See Tex. Lab.Code Ann. §§ 21.001-.405 (West 1996 & Supp.1998). Furthermore, appellants assert that the Council violated the Texas Open Meetings Act (TOMA) when it allegedly determined the judicial appointments in an executive session. See Tex. Gov't Code Ann. §§ 551.001-.146 (West 1994 & Supp.1998). Finally, appellants assert the Council's actions violated section 29.005 of the Texas Government Code, which creates a two-year minimum term for municipal court judges. See Tex. Gov't Code Ann. § 29.005 (West 1988 & Supp.1998). Because appellants' appointments were effective March 15, 1992, they assert that their two-year terms extended until March 14, 1994.

                the disabled and for improving the court's compliance with the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101-213 (1994)).  As an individual with certain disabilities, Thompson initially requested greater accessibility to courtrooms for those with disabilities. 1  During his crusade, he gathered support from Wood and other judges. 2  Together they requested fully accessible courtrooms, including accessible doorknobs, accessible parking, and ramped benches.  Thompson and Wood also asked for a larger key access pad for the security door to the judges' chambers and objected to the installation of a new and less accessible filing system.  Both judges appealed to the clerk of the court for modification of the municipal court building, placed the issue on numerous judicial agendas of the municipal court, and presented it at oversight committee meetings.  When the clerk failed to respond to Thompson's satisfaction, he voiced complaints to many judicial assistants and prosecutors about the clerk's resistance to necessary modification of the court building.  Wood observed that relations between Thompson and the clerk became increasingly tense and finally deteriorated completely.  In late December 1993, the Council met in executive session to discuss the composition of the municipal court bench for the new term beginning January 1, 1994.  Later that same day, the Council reconvened in an open meeting and voted to appoint different judges instead of appellants for the next term
                

The City moved for summary judgment on each of appellants' causes of action, urging that (1) municipal court judges do not qualify as employees under the TCHRA; (2) appellants waived their right to assert a claim under TOMA; and (3) no violation of section 29.005 occurred because the term of office for the judges ended December 31, 1993. The trial court granted summary judgment for the City on all three causes of action. Thompson and Wood bring this appeal, seeking reversal of the summary judgment and a remand to the trial court for a trial on the merits.

DISCUSSION

A defendant seeking summary judgment based on a plaintiff's inability to prove the case must conclusively disprove at least one element of each of the plaintiff's causes of action. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). Because the propriety of summary judgment is a question of law, we review the trial court's decision de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). When a trial court does not state the basis for its decision in its summary-judgment order, we must uphold the order if any of the theories advanced in the motion are meritorious. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989).

I. SECTION 29.005 OF THE TEXAS GOVERNMENT CODE

Thompson and Wood argue that the Council discriminated against them either by removing them from their jobs or by failing to reappoint them. With regard to the first allegation, they assert in their third point of error that the Council terminated their contracts early (December 31, 1993), in violation of section 29.005 of the Texas Government Code, when their term should have ended March 14, 1994. See Tex. Gov't Code Ann. § 29.005. However, the appellants have no claim under this theory as this provision merely dictates the length of a term of office and does not create any private cause of action. ³ Furthermore, although the term of the office of a municipal court judge of Austin is two years, the Code states that a term begins the first of January on even-numbered years, and thus the term must end on December 31 of odd-numbered years. Austin, Tex., Code, Charter, art. VI, § 2 (1997).

In Spears v. Davis, the Texas Supreme Court emphasized the distinction between the term of an office and the tenure of an office holder. Spears, 398 S.W.2d 921, 926 (Tex.1966). The court stated, " '[I]t must be distinctly borne in mind that the term of office as fixed by law is entirely different from the period of time such office is held by the incumbent.' " Id. at 926 (quoting People ex rel. Holdom v. Sweitzer, 280 Ill. 436, 117 N.E. 625 (1917)). The term of office for municipal judges in Austin extends two years, through December 31 of odd-numbered years, regardless of when an individual judge is appointed to the bench. A late-appointed judge or one appointed to serve an unexpired term will have a tenure of office less than two years.

The resolution appointing appellants became effective March 15, 1992. Thompson and Wood had a tenure of less than two years but both served until December 31, 1993, the last day of their term of office. The Council did not remove appellants from office or terminate their contracts early. Consequently, we overrule appellants' third point of error.

II. TEXAS COMMISSION ON HUMAN RIGHTS ACT (TCHRA)

Now that we have determined that the Council did not remove appellants from office, the primary issue underlying this appeal is whether the Council violated the TCHRA in its failure to reappoint Thompson and Wood as municipal court judges. In their first point of error, Thompson and Wood assert that the Council violated sections 21.051 and 21.055 of the TCHRA by discriminating and retaliating against them when it did not reappoint them as municipal court judges. The relevant portion of section 21.051 of the TCHRA states:

[a]n employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer: (1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment....

Tex. Lab.Code Ann. § 21.051 (West 1996). Appellants also assert a claim under section 21.055, which states:

[a]n employer ... commits an unlawful employment practice if the employer ... retaliates or discriminates against a person who, under this chapter: (1) opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint....

Tex. Lab.Code Ann. § 21.055. The TCHRA includes "municipality" in its definition of "employer." Tex. Lab.Code Ann. § 21.002(8)(D). The term "employee" is defined as an individual employed by an employer with an exception that does not apply here. Tex. Lab.Code Ann. § 21.002(7). ⁴ Neither appellants nor the City dispute that the City is an employer under the TCHRA. The critical question is whether Thompson and Wood are employees under the act.

A. Employee v. Public Official

In order for the protections of the TCHRA to apply here, a municipal judge must be an employee. ⁵ In light of the nature and function of a municipal court judge and relevant case law, we hold that such a judge is not an employee but a public official who is not covered under the TCHRA. Although case law in Texas regarding our concern is quite limited, one case in particular is instructive. In Guerrero v. Refugio County, the Corpus Christi Court of Appeals applied a federal test, the hybrid "economic realities-common law control" test, for determining whether an individual was an employee under TCHRA. 946 S.W.2d 558, 566 (Tex.App.--Corpus Christi 1997, no writ). Generally used to distinguish between employees and independent contractors, ⁶ this test combines the important element of the employer's right to control the employee ⁷ with the economic realities of the working relationship. ⁸ The Guerrero court extended the use of this test to the context of public officials....