Michael L. Lacey v. Constable Ruben C. Tejeda, Constable for Precinct Five (5) of Bexar County, Texas--Appeal from 73rd Judicial District Court of Bexar County

No. 04-99-00813-CV

Michael L. LACEY,

Appellant
v.
Constable Ruben C. TEJEDA, Constable for Precinct 5

of Bexar County, Texas,

Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 99-CI-05899
Honorable Michael Peden, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: March 14, 2001

AFFIRMED

In this employment termination case, we are asked to determine whether the appellee, Constable Ruben Tejeda, had the authority to terminate the employment of his Chief Deputy Constable, appellant Michael Lacey, without notice or hearing. Because we hold the chief deputy's position is exempt from coverage of the Civil Service System, we affirm the trial court's judgment.

Michael Lacey was hired as a deputy constable in 1993. It is not clear from the record whether Lacey came in as Chief Deputy or was later promoted to that position. The parties agree Lacey was Chief Deputy Constable of Precinct 5 before 1996. In July 1997, Tejeda fired Lacey and Lacey appealed to the Bexar County Civil Service Commission. The Commission ordered Lacey reinstated as Chief Deputy Constable with full back pay. Tejeda refused, and Lacey filed a writ of mandamus in the District Court to force Tejeda to comply with the Commission's order. The trial court denied the writ, and this appeal ensued.

Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. In re Yates, 960 S.W.2d 652, 652 (Tex. 1997); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). The act the party seeks to compel must be one clearly required by law. In re Coronado, 980 S.W.2d 691, 693 (Tex. App.-San Antonio 1998, orig. proceeding).

At the time Lacey was hired, deputy constable positions were not subject to civil service regulations. In 1989, the Legislature granted civil service commissions broader authority, including the right to "adopt, publish, and enforce rules regarding . . . the definition of a county employee." Tex. Loc. Gov't Code Ann. 158.009(a)(1) (Vernon 1999). Pursuant to that authority, the Commission included deputy constables within the definition of "employees" covered under the Civil Service System; however, the Commission also retained the power to exempt certain sensitive positions from coverage. Bexar County Civil Serv. Rules & Regulations, Temporary Ch. 1, 1.05-.06 (revised through January 28, 1999). In 1996, the Commission exempted the position of Chief Deputy Constable of Precinct 5. Id. 1.07 & Appendix A, at 3. The parties have provided no authority and we have found no case law or statute indicating the exemption excluded persons holding the position at the time the exemption was adopted.

At the time of his firing, Lacey occupied an exempt position. Consequently, the Commission had no authority to order him reinstated as Chief Deputy Constable, and Lacey had no right to the notice and hearing provisions of the civil service regulations. The trial court did not err when it determined Tejeda had no duty to reinstate Lacey.

On appeal, Lacey argues Chapter 302 of the Bexar County Civil Service Rules and Regulations "grandfathers" his job so that he is not affected by the change in exempt status that occurred in 1996. Under Chapter 302, a "career status" employee occupying an exempt position must be retained in an alternate position with the same pay unless the employee was terminated for cause. Bexar County Civil Serv. Rules & Regulations, Ch. 302, 1-3(c). Lacey did not plead this alternative in his petition for writ of mandamus. He presented no evidence at the trial court hearing demonstrating he qualified as a "career employee" or he was not fired for cause. Further, the Commission's order, which he seeks to enforce, calls only for his reinstatement to the position of Chief Deputy Constable, not to an alternate position. Because the question of Lacey's rights under Chapter 302 were never presented to or ruled upon by the trial court, any error has been waived on appeal. Tex. R. App. P. 33.1; City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986).

Accordingly, because we hold Lacey occupied a civil service exempt position at the time he was fired, we affirm the judgment of the trial court.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH