Julio Soliz v. Nueces County Sheriff, Nueces County Civil Service Commission, Nueces County--Appeal from 214th District Court of Nueces County

NUMBER 13-06-00243-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

JULIO SOLIZ, Appellant,

 
v.

NUECES COUNTY SHERIFF, NUECES COUNTY CIVIL

SERVICE COMMISSION, NUECES COUNTY, Appellees.

On appeal from the 214th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Vela
Memorandum Opinion by Chief Justice Valdez

Julio Soliz, by a single issue, appeals from the trial court's judgment affirming the Nueces County Civil Service Commission's decision dismissing his grievance. We affirm.

I. BACKGROUND

The Nueces County Sheriff's Department notified Soliz by letter that he was being demoted from a patrol sergeant to a crime data clerk because he allegedly violated provisions of the sheriff's department's general manual. The demotion letter ended with a notice, stating that "[y]ou are hereby informed that if you wish to appeal this disciplinary action, you have seven (7) days from receipt of this letter to submit an appeal to the Nueces County Civil Service Commission." Shortly after receiving the demotion letter, Soliz requested and received permission to take four days off of work. Soliz never returned to work. However, he timely filed a grievance with the Nueces County Civil Service Commission regarding his demotion.

A month after beginning his vacation and permanent absence from work, the sheriff's department notified Soliz that he had been terminated. The termination letter ended with the same notice of appellate procedure as the demotion letter. No formal grievance was filed regarding the termination letter. Months later, the Nueces County Civil Service Commission dismissed Soliz's demotion grievance. Soliz appealed to the district court. The various involved Nueces County entities filed pleas to the jurisdiction, which the trial court denied. This Court, in an interlocutory appeal, affirmed the trial court's decision to deny the pleas to the jurisdiction. See Nueces County, et al. v. Soliz, No. 13-05-157-CV, 2005 Tex. App. LEXIS 5449 at *2 (Tex. App.-Corpus Christi July 14, 2005, no pet.) (memo op.).

Upon receiving our opinion in the interlocutory appeal, the trial court affirmed the Nueces County Civil Service Commission's dismissal of Soliz's grievance. The district court issued conclusions of law stating that an employee is entitled to a grievance hearing after each "demotion" and "termination," and that Soliz was not entitled to a hearing on his demotion because he failed to return to work after his demotion. The district court also concluded that Soliz was not entitled to a hearing on what constituted a "constructive discharge." Soliz appeals from the district court's judgment affirming the civil service commission's dismissal of his grievance.

II. DISCUSSION

By his sole issue, Soliz argues that under the civil service rules and procedures he has a right to a civil service grievance hearing when he has been constructively discharged. (1) Soliz implicitly argues that his demotion should be construed as a constructive discharge. Soliz claims that the grievance he filed was to being constructively discharged and therefore was timely filed. (2) He argues that the civil service commission should have adopted the concept of constructive discharge because the local government code allows the commission to adopt existing law. See Tex. Loc. Gov't Code Ann. 158.009(b) (Vernon 1999). We do not find Soliz's argument persuasive.

Normally, a decision by a civil service commission is appealable to a district court and reviewed under the "substantial evidence" rule. See Tex. Loc. Gov't Code Ann. 158.012(b) (Vernon 1999). Soliz, however, does not seek a substantial evidence review. Instead, he seeks a review of whether the civil service commission erred in not applying the constructive termination doctrine. To determine the applicable standard of review, we look to the statute.

The local government code grants a civil service commission discretion in adopting laws and rules. In relevant part, it provides that:

The commission may adopt or use as a guide any civil service law or rule of the United States, this state, or a political subdivision in this state to the extent that the law or rule promotes the purposes of this subchapter and serves the needs of the county.

 

Id. 158.009(b) (emphasis added). As the statute notes, the commission is not required to use or follow any civil service law or rule of the United States in preparing its civil service rules. See id.; Tarrant County v. Van Sickle, 98 S.W.3d 358, 364 (Tex. App.-Fort Worth 2003, pet. denied). This is because the term "may" creates a discretionary authority or grants permission or a power, while the term "shall" imposes a duty. Tex. Gov't Code Ann. 311.016(1) (Vernon 2005).

The record before us consists of a reporter's record of a hearing held before the trial court and the clerk's record. At the hearing, the parties stipulated to all of the facts, except how Soliz's grievance should be classified. Soliz and the county attorney presented legal arguments to the trial court, but no evidence was offered to the court, and no testimony was taken. The clerk's record includes, among other things, Soliz's petition, official records of the Nueces County Civil Service Commission, the final judgment, and the trial court's findings of fact and conclusions of law. The clerk's record also includes the sheriff's department's termination letter. The civil service commission's records include the sheriff's department's demotion letter, Soliz's grievance against the demotion complaining that the "punishment was to[o] harsh and uncalled for," notice of the civil service commission's hearing date, amended minutes of the civil of the civil service commission's hearing, and a final decision.

The governing statute grants the civil service commission discretion to employ other laws and rules but does not mandate the use of other laws, such as the constructive termination doctrine. Moreover, Soliz has failed to present any evidence or authority showing how the civil service commission abused its discretion in not adopting the concept of constructive discharge. Accordingly, Soliz's sole issue is overruled.

III. CONCLUSION

The trial court's judgment is AFFIRMED. Tex. R. App. P. 43.2(a).

 

_______________________

ROGELIO VALDEZ,

Chief Justice

 

Memorandum Opinion delivered and filed

this the 29th day of August, 2007.

1. The argument section of Soliz's brief is four pages long, two and a half of which consist of a block quotation from Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767(Tex. App.-Houston [1st Dist.] 1999, pet. dism'd w.o.j.) (op. on reh'g). Out of an abundance of caution, we will outline the contours of a cognizable argument.

2. Section 158.012(a) provides that "a county employee who, on a final decision by the commission, is demoted, suspended, or removed from the employee's position may appeal the decision by filing a petition in a district court in the county within 30 days after the date of the decision. Tex. Loc. Gov't Code Ann. 158.012(a) (Vernon 1999).