The State of Texas v. Jerome Paul Marroquin--Appeal from 108th District Court of Potter County

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State: Texas

Court: Texas Northern District Court

Docket No: 07-07-00116-CR

Case Date: 12/19/2007

Plaintiff: MARIO ALBA

Defendant: NUECES COUNTY SHERIFF'S DEPARTMENT, SHERIFF LARRY OLIVAREZ, IN HIS OFFICIAL CAPACITY, AND THE NUECE

Preview:MARIO ALBA v. NUECES COUNTY SHERIFF'S
DEPARTMENT, SHERIFF LARRY OLIVAREZ, IN
HIS OFFICIAL CAPACITY, AND THE NUECES
COUNTY CIVIL SERVICE COMMISSION--Appeal
from 28th District Court of Nueces County
NUMBER 13-01-00307-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI BEDINBURG
MARIO ALBA, Appellant,
v.
NUECES COUNTY SHERIFF=S DEPARTMENT,
SHERIFF LARRY OLIVAREZ IN HIS OFFICIAL
CAPACITY, AND THE NUECES COUNTY CIVIL
SERVICE COMMISSION, Appellees.
On appeal from the 28th District Court of Nueces County, Texas.
O P I N I O N
Before Justices Dorsey, Hinojosa, and Rodriguez
Opinion by Justice Hinojosa
This is an appeal from the trial court=s order granting the motion for summary judgment of appellees, Nueces County
Sheriff=s Department (ASheriff=s Department@), Sheriff Larry Olivarez in his official capacity (ASheriff@), and the
Nueces County Civil Service Commission (ACommission@). In a single issue, appellant, Mario Alba, contends the
trial court erred in granting the motion. We affirm.
A. Background
On April 11, 2000, the Sheriff=s Department terminated Alba=s employment for disciplinary reasons.[1] Alba appealed
his termination to the Commission. After a hearing, the Commission ordered that Alba be reinstated; however, it did
not order that Alba be given back pay and benefits. Alba appealed the Commission=s order to the trial court. Appellees
filed a motion for summary judgment asserting that section 158.012 of the Texas Local Government Code did not
allow Alba to appeal the Commission=s decision to the trial court. The trial court granted the motion for summary
judgment. Alba filed a motion for new trial, but it was denied.
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B. Summary Judgment
In a traditional summary judgment proceeding, the appellate standard of review is whether the successful movant at the
trial level carried his burden of showing there is no genuine issue of material fact and that the judgment should be
granted as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In determining whether
the movant carried this burden, evidence favorable to the nonmovant must be taken as true. Id. at 548-49. The
nonmovant must be given the benefit of all doubts and reasonable inferences. Id. at 549. To succeed on a summary
judgment, a defendant must disprove as a matter of law one or more elements essential to the plaintiff=s claims.
Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). Alternatively, a defendant is entitled to summary judgment based
on an affirmative defense if he proves conclusively all of the elements of the affirmative defense as a matter of law.
Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984).
1. Summary Judgment Evidence
Alba sought recovery under section 158.012(a) of the local government code, which provides that Aa 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) (emphasis added).
In their motion for summary judgment, appellees claimed that section 158.012 did not allow Alba to appeal the
Commission=s decision. As summary judgment evidence, appellees attached Alba=s petition to their motion for
summary judgment. Alba states in his petition that the Commission ordered he be reinstated. Appellees contend that
reinstatement is not the equivalent of demotion, suspension, or removal, and that Alba=s statement admits a fact
contrary to his theory of recovery. As further summary judgment evidence, appellees attached an affidavit from the
custodian of county records, wherein the custodian sets out that the Commission reinstated Alba.
2. Analysis
In his response to appellees= motion for summary judgment, Alba stipulated there is no genuine issue of material fact
in this case. Therefore, the only issue for this Court to consider is the legal interpretation of the facts and their proper
application to the law. Since appellees moved for summary judgment on an affirmative defense, we need only consider
if appellees proved their defense conclusively as a matter of law.
Section 158.012 allows an employee to appeal a decision of the Commission to a district court, if the Commission=s
final decision was demotion, suspension, or removal. Id. The Commission=s final decision in Alba=s case was
reinstatement. Alba contends that the time period between his termination and reinstatement was the equivalent of a
suspension as contemplated by the statute.
The cardinal rule of statutory construction is to discern and give effect to the intent of the acting body. Rosenblatt v.
City of Houston, 31 S.W.3d 399, 403 (Tex. App.BCorpus Christi 2000, pet. denied). We must first seek to discern that
intent from the plain language of the statute. Id. We use the commonly understood, everyday meaning of the word
Asuspended@ when interpreting the statute. See Tex. Gov=t. Code Ann. '311.011 (Vernon Supp. 2002).
Black=s Law Dictionary defines Asuspension@ in this context as Atemporary withdrawal or cessation from
employment as distinguished from permanent severance accomplished by removal.@ Black=s Law Dictionary 1447
(6th ed. 1990) (emphasis added). According to this definition, a suspension has the following three characteristics: (1)
the employee is removed from employment with the intent that the removal be temporary; (2) he is absent from
employment for some period of time; and (3) he is reinstated, resuming his employment.
While Alba was absent from employment for some time, and was subsequently reinstated, his initial removal was
intended to be permanent. Accordingly, we conclude Alba=s termination, absence, and subsequent reinstatement is not
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the equivalent of a suspension.
When construing a statute, whether or not the statute is ambiguous on its face, we may consider such matters as the
object sought to be attained by the statute. Tex. Gov=t Code Ann. '311.023 (Vernon Supp. 2002). Section 158.012
seeks to provide appellate review by a district court to those who receive an adverse order from the Commission, i.e.,
demotion, suspension, or removal. Tex. Loc. Gov=t Code Ann. '158.012(a). According to the rules of construction, we
presume the words Ademoted,@ Asuspended,@ and Aremoved@ were intended to have meaning and purpose. See
Rosenblatt, 31 S.W.3d at 403-04. Their inclusion, therefore, clearly eliminates the possibility that all orders from the
Commission are appealable to the district court.
C. Conclusion
Because the Commission=s final decision did not demote, suspend, or remove Alba from his employment with the
Sheriff=s Department, we hold the trial court did not err in granting appellees= motion for summary judgment.
Appellant=s sole issue is overruled.
We affirm the trial court=s order granting appellees= motion for summary judgment.
FEDERICO G. HINOJOSA
Justice
Publish. Tex. R. App. P. 47.3.
Opinion delivered and filed this the
12th day of September, 2002.
[1] Alba was accused of assaulting an inmate, but he was never indicted.
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