Gonzalo Chapa, Jr. v. The City of Alice--Appeal from 79th Judicial District Court of Jim Wells County

MEMORANDUM OPINION
No. 04-03-00579-CV
Gonzalo CHAPA Jr.,
Appellant
v.
THE CITY OF ALICE,
Appellee
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 01-03-39299
Honorable Hector De Pe a, Jr., (1) Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 10, 2004

AFFIRMED

Gonzalo Chapa sued the City of Alice alleging the city council terminated his employment as city manager because of his "political views, including his exercise of his rights of freedom of speech, expression, and belief," in violation of his rights under article I, sections 8 and 19 of the Texas Constitution. The trial court granted the City's no-evidence motion for summary judgment. We affirm.

In an appeal from a no-evidence summary judgment, "we review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). We will affirm if "'(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact." Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion' of a fact." Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

One of the City's grounds for summary judgment was that "Chapa has no evidence that he was terminated as a result of his exercise of his constitutionally protected right to free speech and/or association." The only evidence Chapa submitted in response to this ground was an excerpt from his own deposition:

Counsel: I understand your lawsuit ... you are claiming that you were wrongfully terminated based on that the City did not agree with your political views. Do you recall - is that your position?

Chapa: My position is that I was terminated because of political reasons, yes.

Counsel: Okay. What were those political reasons?

Chapa: Essentially, I think is political perceptions that are not true.

Counsel: You're going to have to be a little more clearer.

Chapa: On which word?

Counsel: What political perceptions, specifically.

Chapa: Well, the political perceptions that the majority [of the city council] at that time had. [Councilman] Aguilar, for whatever reasons he had, he is the one that mentioned it was a firing for political reasons.

Counsel: What, Mr. Chapa, is your understanding of the political perceptions held by each of those members that voted to terminate you? What I'm trying to understand is: You're saying that for political reasons and based on their political perceptions, they voted to have you terminated. But I need to know what you are claiming are those political perceptions and reasons.

Chapa: Well, it is difficult for me to get into their minds in saying what misconceptions they had with respect to their political overviews. But it was mentioned specifically at that council meeting.

....

Counsel: I think you're attributing a comment made by one council member to all of those. If I understand - if my recollection is correct having heard that tape, there was a statement made by [Councilman] Aguilar.

Chapa: Yes.

Counsel: Do you agree that there was no other council member that made a statement similar or making any kind of reference to that their individual decision was political?

Chapa: At that particular time, nothing was discussed or [Councilwoman] Saenz-Lopez did not say anything. [Councilman] Silva made a very brief comment. That was the only discussion that was had except for the comment of [Councilman] Aguilar, yes.

Counsel: And what do you recall [Councilman] Aguilar's comment to have been?

Chapa: Something on the lines of you were hired for political reasons. We can fire you for political reasons.

Counsel: Okay. Is it your testimony that you do not know what political reasons there would have been in the minds of any of the members who voted to terminate you?

Chapa: Well, the only thing I can attest to is what I heard that particular night. Other than that, it would be clear assumption on my part and that's what I would not like to do.

Chapa submitted no other evidence of what he believes are the reasons his employment was terminated; no evidence of what, if any, political views, associations or activities he actually held or engaged in; and no evidence of what political views or associations, or activities Aguilar or the other city council members believed Chapa had.

Standing alone, the statement of one council member that "you were hired for political reasons[;] [W]e can fire you for political reasons" does not create even "a mere surmise or suspicion" that three city council members voted to terminate Chapa's employment because of his constitutionally-protected political beliefs and associations. See Shadow v. Continental Airlines, Inc., No. 04-02-00930-CV, 2003 WL 22187139, at *4 (Tex. App.-San Antonio, Sept. 24, 2003, no pet.); City of Corpus Christi v. Bayfront Assoc., Ltd., 814 S.W.2d 98, 105-106 (Tex. App.-Corpus Christi 1991, writ denied). Accordingly, the trial court correctly found there was no evidence that Chapa "was terminated based on his exercise of free speech or political association." We therefore affirm the trial court's judgment.

Sarah B. Duncan, Justice

1. Terry A. Canales, formerly the presiding judge of the 79th Judicial District Court, Jim Wells County, Texas, heard argument and orally granted summary judgment; however, the Honorable Hector De Pena, sitting by assignment, signed the judgment.