Webb v. City of Dallas

• Decision Date: 28 November 2006
• Docket Number: No. 05-05-01621-CV.,05-05-01621-CV.
• Citation: 211 S.W.3d 808
• Parties: Jason WEBB, Appellant, v. CITY OF DALLAS, Texas, Appellee.
• Court: Texas Court of Appeals

211 S.W.3d 808

Jason WEBB, Appellant, v. CITY OF DALLAS, Texas, Appellee.

No. 05-05-01621-CV.

Court of Appeals of Texas, Dallas.

November 28, 2006.

Rehearing Overruled January 23, 2007.

Robert Thomas Baskett, Dallas, for Appellant.

Ayeh B. Powers, Office of the City Attorney, Dallas, for Appellee.

Before Justices BRIDGES, FRANCIS, and MAZZANT.

OPINION

Opinion By Justice MAZZANT.

Jason Webb appeals the trial court's determination upholding his termination from the City of Dallas, Texas, police department. Webb brings three issues on appeal complaining of the trial court's upholding his termination and failing to make and file proper findings of fact and conclusions of law. We conclude the trial court erred in upholding Webb's termination, and we reverse the trial court's judgment.

BACKGROUND

Before his termination in 2003, Webb was a Dallas police officer. On November 2, 2001, Webb was involved in an altercation with his ex-wife while he was off duty. He was arrested and charged with assault on a family member. See TEX. PEN.CODE ANN. § 22.01(b)(2) (Vernon Supp.2006). On July 18, 2002, the Dallas chief of police suspended Webb for five working days without pay because he violated the police department code of conduct "when on November 2, 2001, you were involved in an off-duty disturbance with your ex-wife which resulted in your arrest."

On January 13, 2003, in Dallas County Criminal Court No. 10, Webb pleaded nolo contendere to the criminal charge of misdemeanor assault from the November 2, 2001 incident. Pursuant to a plea agreement, the trial court deferred adjudication of his guilt, placed him on community supervision for nine months, and fined him $100. One of the conditions of community supervision was "no weapons or firearms." Webb successfully completed the community supervision and was discharged on October 12, 2003.

Internal Affairs Investigation

On January 15, 2003, the police department began an internal affairs investigation of Webb. The complaint filed with the department stated, "Plead guilty to M/A Family Violence." A second complaint filed January 17, 2003 stated, "Tarrant County DA's office stated officer Webb has been convicted (pled guilty) to a class A misdemeanor assault charge (Family Violence)." On January 24, 2003, Webb gave a written statement for the internal investigation: "I, Jason S. Webb, . . . had pending Class A-Misdemeanor Assault/Family Violence case against me. On January 13, 2003, I plead No Contest to the charge. I received nine-months Deferred Probation and a $100.00 fine. The probation began January 13, 2003 and ends October 13, 2003."

On January 24, 2003, Webb was formally charged in the internal affairs investigation: "It is alleged that on January 13, 2003, you were involved in adverse conduct when you were convicted of Assault/Family Violence." The Dallas County Criminal District Attorney's Office sent the police department's internal affairs division a memorandum about Webb's criminal charges:

Case was out of County Criminal Court 10-Judge Lisa Fox

Defendant plead guilty 1/13/03 to:

9 mos. Deferred probation, fine, court costs, Affirmative Finding of Family Violence, Forfeit of Weapons, not able to possess weapons, Domestic Violence impact panel, Community Service.

On February 14, 2003, Webb filed an "internal statement":

On February 14, 2003, I, Jason S. Webb, # 7558, reported to Internal Affairs to review my investigation. On certain documents, it stated that I pled guilty to the assault charge. This is not correct. As I previously stated in my Internal Statement, I plead [sic] No Contest before the court on January 13, 2003, not Guilty. The difference being that there is no affirmation of guilt by pleading No Contest. Therefore all documents contained in this investigation that state that I pled guilty are incorrect. The plea agreement filed with the court also shows that I pled No Contest, not guilty.

On February 24, 2003, Webb's sergeant-supervisor recommended Webb be terminated.¹ The lieutenant/manager, deputy chief, and assistant chief also recommended termination. On February 24, 2003, the internal affairs division sent the chief of police a memorandum stating,

SYNOPSIS:

There is one allegation against Police Officer Jason S. Webb, # 7558.

1. It is alleged that on January 13, 2003, Police Officer Jason Webb, # 7558, was involved in adverse conduct when he was convicted of Assault/Family Violence.

FINDINGS:

Allegation # 1 is Sustained.

The memorandum then stated Webb's conduct violated sections 4.2 and 4.3 of the police department's code of conduct. Those sections state,

4.2 No employee shall be convicted of, nor commit, any act or omission which is defined as a criminal act.

4.3 No employee shall engage in any conduct which adversely affects the morale or efficiency of the Department or which has a tendency to adversely affect, lower or destroy public respect and confidence in the Department or officer.

After listing Webb's prior disciplines, including the July 2002 five-day suspension, the memorandum contained the recommendation of termination. On April 18, 2003, the police chief terminated Webb in a letter stating, "I have taken this action because you violated Chapter IV, Sections 4.2 and 4.3 of the Dallas Police Department Code of Conduct . . . . You violated Chapter IV, Sections 4.2 and 4.3 of the Dallas Police Department Code of Conduct when on January 13, 2003, you were convicted of Assault/Family Violence." The letter then listed Webb's prior discipline and informed him that he had five days from his receipt of the letter to appeal his termination by demanding a hearing before the city manager.

On May 12, 2003, Webb appealed his termination to the city manager by requesting a hearing. He asserted in the letter, "This discipline is unjust and erroneous because [sic] not based upon sufficient proof of the allegations of misconduct and because termination is too severe for any conduct that may have been established." Webb requested reinstatement and restoration of back pay and benefits. On August 22, 2003, the first assistant city manager upheld Webb's termination, stating in a letter to Webb,

On August 21, 2003, I heard your appeal of the discharge issued to you by the Police Department. After reviewing the evidence and testimony presented at the hearing, it is my finding that the Department acted appropriately and within its authority. Therefore, I am upholding the Department's decision.

The letter then informed Webb he could appeal to an administrative law judge or the Civil Service Trial Board. Webb appealed to an administrative law judge.

Hearing Before the Administrative Law Judge

The hearing before the administrative law judge took place on October 27, 2003, following Webb's discharge from community supervision. At the hearing, Webb's counsel objected to the "statement of questions" before the judge because the questions included whether Webb committed a criminal act. His counsel pointed out that Webb had already been disciplined by a five-day suspension for the commission of the act, so the current discipline could not be based on the commission of the act. The City's attorney agreed and told the court, "All we're concerned with is the conviction itself. And I don't intend to bring into evidence anything regarding the act itself because he was disciplined for that with a five-day suspension. So the only thing at issue today is the conviction itself."

The hearing was conducted in two phases. In Phase I, the judge determined whether one or more rules were violated. After finding a rule violation, the case would move to Phase II to determine the appropriateness of the discipline imposed for the rule violations. See DALLAS, TEX., CODE § 34-40(d)(1).

During the City's opening statement, the City's attorney repeated, "We're not concerned about the part about committing the crime because he has already been disciplined for that. The only question that is at issue is whether or not he was convicted of a criminal act." The City asserted Webb violated sections 4.2 and 4.3 of the police department's code of conduct by pleading "no contest" to a charge of family violence assault which, the City stated, constituted a conviction. Webb's attorney asserted in his opening statement that the notice Webb received was the specific allegation he violated the code of conduct by being "convicted." He argued that because adjudication of his guilt was deferred, he had not been convicted.

Theodora Ross, a detective in the internal affairs division during the investigation of Webb, testified the decision to recommend termination of Webb was based on his pleading no contest to family violence assault, having adjudication of guilt deferred, and receiving nine months' community supervision. Ross stated the information the internal affairs division used "was testimony from Officer Webb himself and a Dallas County District Attorney's office [memorandum] . . . stating that he had been convicted of a family violence." Ross then testified the documents actually stated Webb received "deferred probation" and that she knew deferred adjudication was not a conviction.

Cindy Dyer, an assistant district attorney and the chief felony prosecutor of the family violence section, testified she was the supervisor of the court in which Webb was convicted. Dyer testified that, in most cases, successful completion of deferred adjudication does not result in a conviction; however, due to an amendment of the penal code in 1999 adding paragraph (f) to section 22.01, successful completion of deferred adjudication in family violence assault is a conviction. Dyer testified that she worked on the wording of the bill that amended the penal code and testified before the legislature in favor of the amendment. Dyer also testified that section 46.04 of the penal code made it an offense for a person convicted of family violence assault to possess a firearm for five...