THE CITY OF BROWNSVILLE, TEXAS AND BEN REYNA, CHIEF OF POLICE v. JESUS R. GARZA--Appeal from 197th District Court of Cameron County

NUMBER 13-01-791-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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THE CITY OF BROWNSVILLE, TEXAS

AND BEN REYNA, CHIEF OF POLICE , Appellants,

v.

JESUS R. GARZA , Appellee.

___________________________________________________________________

On appeal from the 197th District Court

of Cameron County, Texas.

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MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Dorsey (1)

Opinion by Justice Rodriguez

Appellants, the City of Brownsville and Brownsville Chief of Police Ben Reyna, bring this appeal following the trial court's judgment in favor of appellee, Jesus Garza. By two issues, appellants contend the trial court erred in: (1) holding article 28, section 2(a) of a collective bargaining agreement unambiguous; and (2) excluding testimony pertinent to the interpretation of the ambiguous provision. We affirm.

I. Facts

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here. See Tex. R. App. P. 47.4.

II. Ambiguity

By their first issue, appellants contend article 28, section 2(a) of the collective bargaining agreement is ambiguous because it is capable of two or more reasonable meanings. We disagree.

A. Standard

Whether a contract is ambiguous is a question of law for the court to decide. Lopez v. Munoz, 22 S.W.3d 857, 861 (Tex. 2000). In construing contracts, we must ascertain and give effect to the parties' intentions as expressed in the document. Id. A contract is not ambiguous if it can be given a certain or definite legal meaning or interpretation. Id.; DeWitt County Elec. Cooperative, Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1998). A term is not ambiguous because of a simple lack of clarity. Parks, 1 S.W.3d at 100. Nor does an ambiguity arise simply because parties to an agreement proffer different interpretations of a term. Id. Rather, an ambiguity exists only if an agreement is susceptible to more than one meaning, and both interpretations must be reasonable. Lopez, 22 S.W.3d at 861; Parks, 1 S.W.3d at 100.

B. Analysis

Article 28, section 2(a) of the collective bargaining agreement between the City of Brownsville and the Brownsville Police Officers' Association provides the following:

SECTION 2. Upon request by an employee, the employee's disciplinary record will be purged in accordance with the following guidelines:

(a) Written evidence of counseling, warnings and reprimands will be removed from personnel files following twelve (12) consecutive months of discipline-free service.

Appellants agree with appellee that this section can be interpreted to mean that, after twelve consecutive months of discipline-free service, an officer will have all written evidence of counseling, warnings, and reprimands removed from their personnel files. However, appellants argue that it can also be interpreted to mean that, after twelve consecutive months of discipline-free service, an officer is entitled to expungementonly of those specific instances of counseling, warnings, and reprimands which were themselves followed by twelve months of discipline-free service.

Looking at the section, we find no ambiguity. The language is clear that after twelve discipline-free months, the employee's disciplinary record will be purged of evidence of counseling, warnings, and reprimands. There is no limiting language found in the section supporting appellants' interpretation. We find no reason to interpret the language so that the section only applies to a specific instance of counseling, warning, or reprimand that occurred immediately prior to a twelve month period. Furthermore, we disagree with appellants' contention that the rest of the section dealing with evidence of suspensions supports their interpretation. (2) If anything, we find that the limiting language found in section 2(b) could have been included in section 2(a) if that was what the drafters intended. Moreover, we disagree with appellants' argument that the trial court's interpretation does not discourage tardiness or absenteeism and does not provide an incentive to avoid such conduct. Rather, we find that an opportunity to purge one's discipline record is a great incentive for improved behavior and self-rehabilitation. Thus, we find that article 28, section 2(a) is not susceptible to one or more reasonable meanings and is not ambiguous. See Lopez, 22 S.W.3d at 861; Parks, 1 S.W.3d at 100. Appellants' first issue is overruled. (3)

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Opinion delivered and filed

this 8th day of May, 2003.

1. Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. 74.003 (Vernon 1998).

2. Article 28, section 2(b) of the collective bargaining agreement provides that,

(b) Evidence of suspensions will be purged as follows:

(1) Suspensions of 1-15 days after three years discipline-free service; and

(2) Suspensions of 16-30 days after five years discipline-free service.

Provided however, that up to two (2) written counseling, warnings or reprimands which occur before one year from the 3 year or 5 year expiration date of any suspension purging period shall not operate to prevent purging of the employee's personnel file.

3. Because of our disposition of appellants' first issue, we need not address appellants' second issue as it is moot. See Tex. R. App. P. 47.1.