Untitled Texas Attorney General Opinion

The Attorney General of Texas
November 14, 1979
MARK WHITE
Attorney General
Honorable Thomas F. Lee Opinion No. Mw- 8 3
District Attorney, 63rd Judicial District
P. 0. Box 1405 Re: Whether a police officer
Del Rio, Texas 76840 suspended for fifteen days or less
under article 1269m, V.T.C.S., may
appeal to the Civil Service
Commission.
Dear Mr. Lee:
You have requested our opinion concerning whether a police officer
can appeal a disciplinary suspension of fifteen days or leas to the city civil
service commission under article 1269m, V.T.C.S.
Article 1269m, V.T.C.S., establishes a Firemen’s and Policemen’s Civil
Service in all cities having a population of ten thousand (10,000) or more
inhabitants. Article 1269m, section 20, V.T.C.S., provides that:
The head of either the Fire or Police Department
shall have the power to suspend any officer or
employee under his jurisdiction or supervision for
disciplinary purposes, for reasonable periods, not to
exceed fifteen (15) days; provided that in every such
case, the department head shall file with the [Civil
Service] Commission within one hundred and twenty
(120) hours, a written statement of action, and the
Commission shall have the power to investigate and
to determine whether just cause exists therefor. . . .
The [Civil Service] Commission shall have the power
to reverse the decision of the department head and to
instruct him immediately to restore such employee to
his position. . . .
While section 16 of this act provides a right to appeal indefinite
suspensions to the commission, there is no right of appeal of disciplinary
suspensions which do not exceed fifteen days. In Fox v. Carr, 552 S.W.2d
865 (Tex. Civ. App. - Texarkana 1977, no writ), the court stated:
But Section 20, which authorizes a department head
to order disciplinary suspensions of less than fifteen
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Honorable Thomas P. Lee - Page Two (``+63)
(15) days, provides only that, on receiving notice of such a
disciplinary suspension, the civil service commission shall have the
‘power to investigate and to determine whether just cause exists
therefor’, and may reverse the order. There is no provision
requiring a full and complete hearing in the case of disciplinary
suspensions, as is provided in Sections 16 and 19 for indefmite
suspensions and demotions.
. . . .
If the legislature did not intend to treat indefinite suspensions and
disciplinary suspensions differently with regard to their
appealability, it is difficult to understand why it would have
treated them differently at sll.
Id. at 887. See also City of Wichita Falls v. Harris, 532 S.W.2d 653 (Tex. Civ. App. - Fort
Grth 1975, writ ref’d n.r.e.1.
A public employee is not categorically entitled to a hearing in all disciplinary
proceedings. Employment under article 1269m, V.T.C.S., the Firemen’s and Policemen’s
Civil Service Act, “is not property and the right to it is not a property right protected by
due process.” City of Amarillo v. Hancock, 239 S.W.2d 788, 792 (Tex. 1951). But see Davis
v. Nuss, 432 F. Supp. 44 (S.D. Tex. 1977) (property right to continued employment may be
zed by provisions of city charter). Since there is no statutory right to appeal and
since employment under article 1269m, V.T.C.S., does not constitute property for purposes
of the due process clause, there is normally no right to appeal disciplinary suspensions of
fifteen days or less.
However, a hearing may be necessary in certain cases. “A hearing is constitutiumlly
required, . . . when the stated reason for a public employee’s discharge is an allegation
that he is guilty of immoral or dishonest conduct or other behavior that might tend to
stigmatize him or to lower his standing in the eyes of the community.” Robison v. Wichita
Falls & North Texas Community Action Corp., 507 F.2d 245, 251(5th Cir. 1975). The rule
outlined by the United States Supreme Court states:
twlhere a person’s good name, reputation, honor, cr integrity is at
stake because of what the government is doing to him, notice and
an opportunity to be heard are essential.
Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972). This rule has been
applied to require a hearing in a disciplinary suspension under section 20, article 1269m,
V.T.C.S., where the charges affect the employee’s professional reputation due to widely
publicized remarks by the department or affect future employment by being included ln an
otherwise creditable employment record. Crawford v. City of Houston, 386 F. Supp. 187
(S.D. Tex. 1974). In such cases, the employee will be entitled to a hearing for the narrow
purpose of vindicating his reputation. Robison, supra Such a hearing would normally be
before the commission.
p. 253
Honorable Thomas F. Lee - Page Three (I%+ 6 3 1
SUMMARY
A police officer has no statutory right to appeal a disciplinary
suspension of fifteen days or less to the City Civil Service
Commission under article 1269m, V.T.C.S. However, a hearing may
be required by due process when the suspension results from
charges which affect the officer’s professional reputation or
otherwise creditable employment record.
ti
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Jim Allison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Jim Allison
David B. Brooks
Walter Davis
Bob Gammage
Susan Garrison
Rick Gilpin
William G Reid
p. 254