                       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.




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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




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