Opinion issued July 2, 2013.




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                               NO. 01-12-00913-CV
                            ———————————
                     THE CITY OF HOUSTON, Appellant
                                        V.
                         SHANE WILBURN, Appellee



                    On Appeal from the 215th District Court
                             Harris County, Texas
                       Trial Court Case No. 2010-65827



                                  OPINION

      The City of Houston Fire Department placed Captain Shane Wilburn on

indefinite suspension—the equivalent of termination—from his captain position,

based on Wilburn’s positive results in a random drug test. After the Police Officers
and Firefighters’ Civil Service Commission of Houston (Commission) upheld the

department’s disciplinary action, Wilburn sued the City for reinstatement and

sought a declaration that the City lacked the authority to indefinitely suspend him,

because it failed to comply with Chapter 614 of the Government Code. Chapter

614 requires that Wilburn receive a copy of a written complaint and have a right to

investigate facts that may serve as the basis for disciplinary action against him. See

TEX. GOV’T CODE ANN. § 614.023 (West 2012). Wilburn moved for partial

summary judgment, contending that the Fire Department’s failure to comply with

Chapter 614 rendered its decision to terminate his employment invalid. The trial

court granted the motion and, based on that ruling, granted the remainder of the

relief Wilburn requested, including reinstatement, back pay, seniority rights, and

attorney’s fees.

      On appeal, the City contends that the trial court erred in invalidating its

employment decision based on Government Code Chapter 614. It seeks affirmance

of the Commission’s decision on the ground that substantial evidence supports the

Commission’s suspension decision. We hold that the trial court erred in concluding

that Wilburn met his summary judgment burden to prove that the City failed to

comply with Chapter 614. We do not consider the City’s request for affirmance of

the Commission’s decision on substantial evidence grounds, because it did not first




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seek that relief in the trial court. We therefore reverse the trial court’s judgment

and remand the case for further proceedings.

                                   Background

      The City of Houston has a drug testing policy, entitled the Mayor’s

Amended Drug Detection and Deterrence Policy, which applies to relevant “safety

impact” positions, including all fire fighters. Fire fighters agree to submit to

random drug testing as a condition of employment. The policy provides that the

City has “zero tolerance” for positive test results: “an employee whose drug test

has been confirmed positive by the [City’s medical review officer (MRO)] shall be

indefinitely suspended.” The policy also subjects employees to testing in other,

non-random circumstances—for instance, when reasonable suspicion exists to

warrant drug testing. The employee’s supervisor must identify, in writing, the

grounds giving rise to reasonable suspicion. Possible grounds include (1) a pattern

of abnormal or erratic behavior; (2) information provided by a reliable and credible

source; (3) direct observation of drug use by a supervisor or manager; or

(4) presence of the physical symptoms of drug use. The policy articulates other

circumstances that are deemed to give rise to reasonable suspicion for drug testing.

These include: (1) violent or threatening behavior; (2) absenteeism or tardiness; or

(3) unexplained loss of City property, equipment, or money. In addition, the policy

explains that an on-the-job accident may result in a recommendation for drug

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testing and that testing is a condition of transfer or promotion to a safety impact

position.

      The policy also details the testing protocols used to analyze the specimen. It

provides that:

      When drug screening is required or authorized under the provisions of
      this policy, a urinalysis test will be given to detect the presence of
      amphetamines,       cocaine     metabolites,    opiate     metabolites,
      phencyclidine, marijuana metabolites and, if appropriate, anabolic
      steroids.

      The initial drug screening shall be by enzyme immunoassay
      techniques (EMIT) test which shall be administered at a City
      approved laboratory and at City expense. If an initial drug screen
      yields a positive result, a second confirmatory test, at City expense,
      using a gas chromatography/mass spectrometry (GC/MS) test will be
      conducted on a portion of the same urine sample provided by the
      applicant or employee for use in the initial drug screen.

      Wilburn was among the City employees randomly selected for drug testing

on July 21, 2010. Pursuant to the policy, Wilburn signed an “Employee Informed

Consent,” acknowledging his understanding that

      •      the urinalysis would be conducted under the direction of
             qualified laboratory personnel;

      •      refusal to consent to cooperate with testing may subject him to
             disciplinary action up to and including discharge;

      •      two-stage testing would occur following a positive result on the
             EMIT test; and

      •      if the drug test is confirmed to be positive, he is subject to
             disciplinary action up to and including discharge.


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Wilburn checked the box acknowledging his consent and signed the form. He

submitted a urine specimen, which tested positive for cocaine metabolite. The lab

results, signed by the certifying scientist, were delivered to the MRO.

      The policy makes the MRO responsible for receiving drug test reports,

reviewing and interpreting lab reports, and speaking with the employee to

determine whether some benign, alternative medical explanation accounts for the

positive test result. If the MRO determines that a positive test result demonstrates a

violation of the policy, the MRO must consult with the relevant department

regarding the results and appear, when necessary, to represent the City in any

proceeding involving drug testing or results.

      After receiving the lab results, the MRO contacted Wilburn on July 26 to

determine whether Wilburn had taken any medication that could have yielded the

positive test results. Wilburn denied using cocaine and told the MRO that he had

been taking an antibiotic. According to the MRO, the antibiotic Wilburn was

taking would not have caused a false positive test for cocaine metabolite. The

MRO informed Wilburn and the department of the testing results.

      Two days later, Wilburn received a relief of duty status letter, signed by the

acting fire chief. The letter explained that his relief of duty resulted from “an

allegation of misconduct by you on or about July 21, 2010”—the date of the

specimen collection—and would continue during the investigation.

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      The drug detection and deterrence policy provides that, “[i]f the GC/MS

confirmatory test is positive, an employee may elect to have a second test

performed on the original sample at his/her cost at a laboratory approved by the

City.” Wilburn requested the second test. In accordance with the policy, the MRO

coordinated the retesting.

      On August 5th, the second testing confirmed the positive result of the

original test. In an August 6th memorandum entitled “Drug Test Result” and

addressed to Wilburn, the MRO wrote:

      In compliance with the City of Houston Drug Policy on Drug
      Detection and Deterrence, you participated in a urinalysis test of drugs
      procedure on 7-21-2010. A split specimen (or aliquot) of that urine
      collection was forwarded to Quest Diagnostics, Lenexa, KS, for
      confirmation testing. The result of that confirmation testing has been
      reported. The [MRO] who has reviewed your confirmation laboratory
      drug test result has determined that your split specimen (or aliquot)
      was POSITIVE for Cocaine.

The MRO’s signature appears at the end of the memo.

      The policy dictates that “[a]n employee whose drug test result has been

confirmed positive by GC/MS and determined to be positive by the MRO shall be

indefinitely suspended/terminated.” On August 19, the acting fire chief gave

Wilburn a signed letter notifying him of the department’s decision to indefinitely

suspend Wilburn’s employment and informing him of his right to appeal the

decision. Wilburn appealed the decision to the Police Officers and Firefighters’

Civil Service Commission of Houston, which, after an evidentiary hearing, upheld

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the suspension. Wilburn then sought review in state district court under Chapter

143 of the Texas Local Government Code and the Texas Declaratory Judgment

Act. TEX. LOCAL GOV’T CODE ANN. § 143.015 (West 2008); TEX. CIV. PRAC. &

REM. CODE ANN. §§ 37.001–37.009 (West 2008).

                                  Discussion

I.    Summary Judgment Standard of Review

      We review de novo the trial court’s ruling on a motion for summary

judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d

844, 848 (Tex. 2009). Under the traditional standard for summary judgment, the

movant has the burden to show that no genuine issue of material fact exists and

that the trial court should grant a judgment as a matter of law. TEX. R. CIV. P.

166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d

746, 748 (Tex. 1999). When reviewing a summary judgment, we take as true all

evidence favorable to the nonmovant and indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accid. Ins. Co. v. Knott, 128

S.W.3d 211, 215 (Tex. 2003).

      Traditional summary judgment is proper only if the movant establishes that

there is no genuine issue of material fact and that the movant is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c). The motion must state the

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specific grounds relied upon for summary judgment. Id. A plaintiff moving for a

traditional summary judgment must conclusively prove all essential elements of its

claim. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).

II.   Compliance with Government Code Chapter 614

      In his motion for summary judgment, Wilburn maintained that he is entitled

to have the indefinite suspension reversed and to be reinstated because the City

violated Chapter 614 of the Texas Government Code. That chapter mandates that a

written copy of a complaint against a fire fighter, signed by the person alleging the

misconduct, be served on the fire fighter “within a reasonable time after the

complaint is filed.” TEX. GOV’T CODE ANN. § 614.023(a). In addition, the statute

prohibits the indefinite suspension or termination of a fire fighter’s employment

unless the complaint is investigated and evidence is found to prove the alleged

misconduct. Id. § 614.023(c).

      In granting the requested relief, the trial court agreed with Wilburn that the

City’s failure to comply with section 614.023 invalidated its disciplinary action

against Wilburn. The City contends that the trial court erred in granting summary

judgment because its implementation of the policy does not require a signed

complaint or an investigation, making Chapter 614 inapplicable.

      Leaving aside the question of whether Chapter 614 requires a signed

complaint in all circumstances resulting in disciplinary action against employees

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under its purview, we consider whether Wilburn satisfied his summary judgment

burden. Wilburn’s motion relies on the acting fire chief’s responses to the

following questions:

      Q.     Did you or anybody under your command fill out a complaint alleging
             that Captain Wilburn violated the drug policy?
      A.     No, sir.
      Q.     Did you conduct an investigation to verify whether the results that the
             City brought here today are accurate?
      A.     No sir, I did not.
      The acting fire chief’s responses, however, do not demonstrate whether the

City complied with Chapter 614 in its implementation of the policy, which charges

the MRO—not the fire chief—with the responsibility to determine whether the

urinalysis test results provide a valid basis for disciplinary action. Before Wilburn

received the letter of indefinite suspension on August 19, the City had provided

him with two signed letters informing him of the complaint giving rise to that

disciplinary action: the first from the acting department chief notifying Wilburn

that he was on paid suspension pending an investigation of misconduct occurring

on or about the date Wilburn provided the urine specimen, and the second from the

MRO confirming that testing from both laboratories yielded a positive result for

the presence of cocaine metabolite. These letters are some evidence that Wilburn

received a copy of a signed complaint “within a reasonable time” after the basis for



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the complaint arose—that is, when Wilburn provided the sample for random

testing under the policy.

       The summary judgment evidence also demonstrates that the MRO

investigated the veracity and accuracy of the urinalysis test results before the

department took any disciplinary action against Wilburn. Before confirming and

reporting the positive test results to the department, the MRO questioned Wilburn

about whether he had consumed any medication on or before the testing date that

could have caused a false positive result. The MRO also testified before the

Commission that he has confirmed the chain of custody for samples when

warranted. The MRO coordinated the second test, ensuring that the specimen went

to a different independent laboratory. The MRO thus complied with the

investigatory procedures delineated in the policy. As a result, we hold that Wilburn

failed to meet his summary judgment burden to conclusively establish that the City

failed to furnish him with a written complaint.

III.   Evidence supporting the Commission’s Decision

       The City also urges us to reverse the trial court and render judgment

affirming the Commission’s decision because substantial evidence supports it. The

City, however, did not move for summary judgment in the trial court. “Issues not

expressly presented to the trial court by written motion, answer or other response

shall not be considered on appeal as grounds for reversal.” TEX. R. CIV. P. 166a(c);

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see also City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 675

(Tex. 1979) (discussing rule).

                                   Conclusion

      We hold that Wilburn failed to satisfy his summary judgment burden. We

therefore reverse the judgment of the trial court and remand the case for further

proceedings.




                                             Jane Bland
                                             Justice

Panel consists of Justices Keyes, Higley, and Bland.




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