Affirmed and Memorandum Opinion filed August 30, 2012.




                                         In The

                      Fourteenth Court of Appeals

                                  NO. 14-11-00304-CV



                        MICHAEL WOYCHESIN, Appellant,
                                            V.
   HARRIS COUNTY SHERIFF'S CIVIL SERVICE COMMISSION, Appellee.


                       On Appeal from the 269th District Court
                                   Harris County
                         Trial Court Cause No. 2009-77354


                        MEMORANDUM OPINION

       The appellant, Michael Woychesin, claims that he should be reinstated as a deputy
in the Harris County Sheriff’s Office because the sheriff did not hold a hearing within ten
days of receiving notice of Woychesin’s appeal of his termination, as required by the
Harris County Sheriff’s Civil Service Commission Regulations. We affirm.
                                                     I

      Woychesin’s employment by the Harris County Sheriff’s Office was terminated
on December 16, 2008. He timely appealed his termination to the appellee, Harris County
Sheriff’s Civil Service Commission. At that time, Rule 12.04(b) of the Harris County
Sheriff’s Civil Service Commission Regulations1 provided: “Upon receipt of that written
notice of appeal the Sheriff has ten (10) days to conduct any further investigation or to
hold any hearings relative to the appeal and to make his decision known, in writing to the
employee.” Despite this rule, the sheriff’s commission did not hold this hearing until
April 30, 2009—about four and a half months after Woychesin was terminated. In the
interim, Sheriff Adrian Garcia replaced Sheriff Tommy Thomas. During the hearing,
Woychesin raised a procedural objection to untimeliness of the hearing, and he argued
that his termination should be overturned because of the sheriff’s noncompliance with
Rule 12.04(b). The commission denied that motion and upheld Woychesin’s termination,
noting that Rule 12.04(b) did not require strict compliance and the ten-day period had
been extended regularly in the past. The commission also noted the unusual
circumstances and inherent delays surrounding a new sheriff taking office.

      Woychesin appealed to the district court, arguing that the commission exceeded its
jurisdiction in concluding that Rule 12.04(b) was not mandatory. Both parties moved for
summary judgment. The district court granted the commission’s motion and denied
Woychesin’s without specifying its grounds for doing so. This appeal followed.

                                                    II

      Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005); Tenaska Frontier Partners, Ltd. v. Sullivan, 273 S.W.3d
734, 736 (Tex. App.—Houston [14th Dist.] 2008, no pet.). When reviewing a summary
judgment, we take as true all evidence favorable to the nonmovant and indulge every
reasonable inference and resolve any doubt in the nonmovant’s favor. Valence Operating
      1
          The rule has apparently been amended since that time, but the changes do not affect this appeal.
                                                     2
Co., 164 S.W.3d at 661. When, as here, both sides move for summary judgment and the
trial court grants one motion and denies the other, we will review all summary-judgment
evidence and determine all questions presented. See id. If we find that the trial court
erred, we will render the judgment the trial court should have rendered. Id. Here, the trial
court did not state its specific grounds for granting summary judgment in favor of the
commission. We may therefore affirm the trial court’s ruling if any of the theories
presented in the motion for summary judgment is meritorious. See FM Props. Operating
Co. v. City of Austin, 22 S.W.3d 868, 872–73 (Tex. 2000).

       A decision by a civil-service commission is subject to the substantial-evidence
rule. Tex. Local Gov’t Code § 158.037; Bexar Cnty. Civil Serv. Comm’n v. Casals, 63
S.W.3d 57, 59 (Tex. App.—San Antonio 2001, no pet.). However, Woychesin plainly
states in his brief, “The facts were never the real issue.” Instead, he claims the
commission had no authority to interpret Rule 12.04 as directory rather than mandatory,
and he asks this court to use section 158.0121(2) of the Texas Local Government Code to
reverse the commission’s judgment upholding his termination. That section of the code
mandates that a reviewing court:

       shall reverse or remand the case for further proceedings if substantial rights
       of the petitioner have been prejudiced because the commission’s findings,
       inferences, conclusions, or decisions are:

       (A) in violation of a constitutional or statutory provision;
       (B) in excess of the commission’s authority;
       (C) made through unlawful procedure;
       (D) affected by other error of law;
       (E) not reasonably supported by substantial evidence considering the
           reliable and probative evidence in the record as a whole; or
       (F) arbitrary or capricious, characterized by an abuse of discretion, or
           clearly an unwarranted exercise of discretion.

Tex. Local Gov’t Code § 158.0121(2).

       A court shall reverse or remand a case for further proceedings under this section if
(1) the commission committed one of the errors listed in section 158.0121; (2) a
                                             3
substantial right of the petitioner was implicated; and (3) that right was prejudiced by the
error. Casals, 63 S.W.3d at 60; see also Parks v. Harris Cnty. Civil Serv. Comm’n, 225
S.W.3d 246, 258 (Tex. App.—El Paso 2006, no pet.). Because we conclude that the trial
court did not err, we address only the first of these factors.

       Woychesin contends that the commission exceeded its authority when it
interpreted Rule 12.04(b) as non-mandatory, but he fails to explain how this
interpretation exceeds the commission’s authority, and the sole case he relies on is
distinguishable. In Casals, a former deputy appealed his termination to a civil-service
commission and listed as a witness the constable who terminated him. Id. at 58. The
commission sent notice of the hearing to the constable, informing him that his presence
was “most imperative” and that, if he were unable to attend, he “must submit a written
request for postponement . . . no later than one week prior to the hearing.” Id. The
commission further warned the constable that his failure to appear at the hearing would
nullify the former deputy’s termination. Id. The constable neither appeared nor provided
notice of his reasons for failing to appear, and the former deputy immediately objected to
proceeding any further. Id. at 58–59. He argued that his termination was forfeited under
the commission’s rules. Id. at 59. The relevant rule provided, in full:

       The Commission, through its Director, shall notify the Elected
       Official/Department Head of the hearing date, time, or place. If the Elected
       Official/Department Head does not attend the hearing or does not notify the
       Commission ahead of time of the Elected Official’s/Department Head’s
       inability to attend, the failure to attend will be considered the Elected
       Official’s/Department Head’s forfeiture of the Adverse Action. The
       Commission will convene and enter an order stating the Elected
       Official’s/Department Head’s failure to attend and that the Commission has
       deemed that the Elected Official/Department Head has forfeited the
       Adverse Action and that all the facts alleged in the Adverse Action Notice
       are untrue.

Id.



                                               4
       The former deputy further complained that the constable’s failure to appear
deprived him of his right to cross-examine his accuser. See id. The commission
nonetheless continued with the hearing and eventually suspended the former deputy
without pay. Id. The former deputy appealed, raising a single issue: the commission
failed to follow its own rules. Id. The trial court reversed the suspension. Id. The court of
appeals upheld that reversal under section 158.0121, reasoning that (1) the former
deputy’s right to have the adverse action forfeited and all facts alleged against him
deemed untrue was a substantial right and (2) the commission’s decision to proceed
contrary to its own rules prejudiced that right. Id. at 61–62.

       Unlike the rule at issue in Casals, Rule 12.04(b) does not provide a consequence
for the sheriff’s failure to comply with the ten-day deadline. Further, Rule 12.04 uses
neither “shall” nor “must” to describe the Sheriff’s responsibility; either word would
indicate that the rule was mandatory. See Tex. Gov’t Code § 311.016(2)–(3). Though the
absence of those words is not dispositive, it is helpful in determining a rule is not
mandatory. See Lewis v. Jacksonville Bldg. & Loan Ass’n, 540 S.W.2d 307, 309–10 (Tex.
1976) (concluding that a statute directing a loan officer to dispose of applications within
45 days was not mandatory, despite the use of the word “shall”). The crux of this analysis
is always the intent of those who implemented the rule. Id. If the rule was created “for the
purpose of promoting the proper, orderly, and prompt conduct of business,” it is unlikely
to be mandatory. Id. Likewise, a rule is unlikely to be mandatory if it does not prohibit
action after a stated deadline or provide penalties for untimely action. Id. at 311.

       Rule 12.04(b) directs an event to occur within a ten-day time period, but it does
not prohibit the sheriff from acting after the close of that ten-day period. Nor does it
provide penalties for the sheriff’s failure to act within that period. The commission noted
this below and indicated that the ten-day timeframe had been regularly extended in the
past. Woychesin did eventually receive a hearing, and other than that hearing’s
untimeliness, he alleges no error in that hearing. We conclude that the commission did

                                              5
not commit any of the errors listed in section 158.0121, and therefore, the district court
was correct in upholding the commission’s ruling. See Casals, 63 S.W.3d at 60.

                                          ***

      For the foregoing reasons, we affirm the judgment of the trial court.




                                         /s/       Jeffrey V. Brown
                                                   Justice



Panel consists of Chief Justice Hedges and Justices Seymore and Brown.




                                               6
