                                 NO. 07-06-0076-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                    JULY 26, 2007

                         ______________________________


                          LAYNE STANFORD, APPELLANT

                                          V.

             CITY OF LUBBOCK AND LUBBOCK FIRE FIGHTER AND
           POLICE OFFICER CIVIL SERVICE COMMISSION, APPELLEES


                       _________________________________

            FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2003-521,215; HONORABLE RUBEN REYES, JUDGE

                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                       OPINION


      Appellant, Layne Stanford, challenges the trial court’s summary judgment in favor

of Appellees, City of Lubbock and Lubbock Fire Fighter and Police Civil Service

Commission. Presenting five issues, he questions whether (1) the City, through its Fire

Chief, violated § 143.057(a) of the Texas Local Government Code by failing to notify him
of his right to appeal the promotional bypass to an independent hearing examiner instead

of the Commission; (2) the City, through its Fire Chief, violated §§ 143.010(a) and

143.052(d) by failing to provide him written notification of his right to file an appeal with the

Commission within ten days after he received notice of the bypass; (3) the Commission

violated § 143.056(d) by failing, upon request, to postpone the promotional bypass hearing

until a date not more than thirty days after final disposition of the related criminal charges;

(4) the decision to bypass him for promotion based solely on a “pending criminal charge,”

as opposed to a conviction, does not constitutes a “valid reason” for refusing to promote

him within the meaning of § 143.036(f); and (5) the trial court erred in failing to award him

attorney’s fees and costs.


                                         Background


       In September of 2002, Stanford, a Lubbock Fire Fighter, was ranked highest on the

Lubbock Fire Department’s eligibility list for promotion. On September 23, 2002, he was

arrested and charged with driving while intoxicated and unlawfully carrying a weapon. At

the time of his arrest, Stanford refused a breathalyzer test which resulted in the suspension

of his driver’s license. On November 1, 2002, a fire lieutenant vacancy occurred as a result

of a retirement. Fire Chief Steve Hailey met with Stanford on December 3, 2002, to

discuss with him the reason he was being bypassed for promotion. Chief Hailey’s decision

was documented by a memorandum entitled “Promotional Bypass–Non-Disciplinary,” in

which he explained he had a “valid reason” for bypassing Stanford.


                                               2
       Stanford timely appealed the decision to the Commission and requested a

postponement pending resolution of the criminal charges. His request for postponement

was denied, and on February 26, 2003, the Commission entertained Stanford’s appeal of

Chief Hailey’s decision. Chief Hailey testified that he had a “valid reason” for not promoting

Stanford to lieutenant. He testified that a lieutenant is a first line supervisor who is charged

with knowing and abiding by rules and he had concerns that with criminal charges pending,

Stanford could not effectively act in a supervisory role. He further testified he had a duty

to set a positive example for the rest of his work force. Additionally, Stanford’s refusal to

submit to a breathalyzer test resulted in suspension of his driver’s license, which is

necessary for driving and operating a fire apparatus. Even though Stanford was issued a

temporary permit, that permit expired and his license remained suspended for

approximately two and one-half weeks.


       Chief Hailey stated that despite Stanford’s driver’s license suspension and his

inability to operate a fire apparatus, no disciplinary action was taken and his salary

remained the same. Deputy Chief Cooper likewise testified that Stanford was neither

suspended nor demoted, and his salary was unaffected.


       Chief Hailey testified that he informed Stanford, as he had others in the past, that

he would not initiate disciplinary action based solely on an arrest. It was his course of

action to await resolution of criminal charges before considering disciplinary action. He

was not, however, comfortable promoting a person with pending criminal charges.


                                               3
       According to Chief Hailey, he complied with § 143.036(f) of the Act by personally

discussing with Stanford the valid reason for not promoting him. As required by the statute,

he also filed his reason in writing with the Commission. The document contains a “Receipt

of Copy” bearing Stanford’s signature. Deputy Chief Cooper, who was present when Chief

Hailey and Stanford met to discuss the promotional bypass, confirmed that Chief Hailey

reviewed the document with Stanford.


       Following presentation of testimony and arguments, Stanford’s attorney requested,

but did not demand, that the Commission deliberate in closed session and render their

decision in public. After deliberating in closed session, the Commission announced it

unanimously agreed that Chief Hailey had a “valid reason” for Stanford’s promotional

passover and also declared the decision was not disciplinary in nature.


       Following the Commission’s ruling, Stanford filed suit against Appellees in February

2003, alleging that the Commission’s decision in sustaining Fire Chief Hailey’s decision

was not supported by substantial evidence. Relying on various sections of the Firefighters’

and Police Officers’ Civil Service Act, Stanford maintained that Appellees’ actions were

tainted by procedural error. He requested, among other relief, that his promotional bypass

be set aside and also sought attorney’s fees.




                                             4
      Stanford and Appellees filed competing motions for summary judgment. Without

specifying any grounds, the trial court granted summary judgment in favor of Appellees and

denied Stanford’s requested relief.1


                                  Standard of Review


      In reviewing a summary judgment, this Court must apply the standards established

in Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985), which are:


      1. The movant for summary judgment has the burden of showing that there
      is no genuine issue of material fact and that it is entitled to judgment as a
      matter of law.

      2. In deciding whether there is a disputed material fact issue precluding
      summary judgment, evidence favorable to the non-movant will be taken as
      true.

      3. Every reasonable inference must be indulged in favor of the non-movant
      and any doubts resolved in its favor.


When a summary judgment does not specify or state the grounds relied on, the summary

judgment will be affirmed on appeal if any of the grounds presented in the motion are

meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Insurance Co. Of N. Am.

v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no writ).




      1
         An appeal of the underlying case was first filed in Cause Number 07-04-0326-CV.
This Court, however, determined that Appellees’ claim for attorney’s fees was unresolved
thereby precluding finality for appellate purposes. The appeal was dismissed for want of
jurisdiction on November 14, 2005.

                                            5
       When both parties move for summary judgment, each party must conclusively

establish it is entitled to judgment as a matter of law, Guynes v. Galveston, 861 S.W.2d

861, 862 (Tex. 1993), and neither party can prevail simply by the other party's failure to

discharge its burden. Tigner v. First National Bank of Angleton, 153 Tex. 69, 264 S.W.2d

85, 87 (Tex. 1954). If the trial court grants one summary judgment and denies the other,

the appellate court may render the judgment the trial court should have rendered. Jones

v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988).


       This appeal involves statutory interpretation of certain sections of the Firefighters’

and Police Officers’ Civil Service Act.2 Legislative intent is determined from an entire act3


       2
         Stanford argues that the Legislature intended to allow fire fighters to appeal any
promotional bypass to an independent hearing examiner based on “clarifications” to §
143.036(f) which became effective on September 1, 2005; however, the Legislature
specifically provided that the changes would apply to promotional bypasses that occur on
or after the effective date. See Act of May 27, 2005, 79th Leg., R.S., ch. 869, § 6(b), 2005
Tex. Gen. Laws 2948, 2950. We will apply § 143.036(f) as it existed at the time of
Stanford’s promotional bypass. See Act of February 21, 1989, 71st Leg., R.S., ch. 1, §
26(f), 1989 Tex. Gen. Laws 1, 36.
       3
           § 143.010. Commission Appeal Procedure

       (a) Except as otherwise provided by this chapter, if a fire fighter or police
       officer wants to appeal to the commission from an action for which an appeal
       or review is provided by this chapter, the fire fighter or police officer need
       only file an appeal with the commission within 10 days after the date the
       action occurred.

       § 143.036. Procedure for Making Promotional Appointments

       (f) Unless the department head has a valid reason for not appointing the
       person, the department head shall appoint the eligible promotional candidate
       having the highest grade on the eligibility list. If the department head has a

                                             6
and not simply from isolated portions. Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998),

citing, Acker v. Texas Water Com’n, 790 S.W.2d 299, 301 (Tex.1990). Therefore, we

interpret statutes so as to give effect to every section. Tex. Gov’t Code Ann. § 311.021(2)

(Vernon 2005); Jones, 969 S.W.2d at 432.




      valid reason for not appointing the eligible promotional candidate having the
      highest grade, the department head shall personally discuss the reason with
      the person being bypassed before appointing another person. The
      department head shall also file the reason in writing with the commission.
      On application of the bypassed eligible promotional candidate, the reason
      the department head did not appoint that person is subject to review by the
      commission. (Emphasis added).

      § 143.052. Disciplinary Suspensions

      (d) The copy of the written statement must inform the suspended fire fighter
      or police officer that if the person wants to appeal to the commission, the
      person must file a written appeal with the commission within 10 days after
      the date the person receives the copy of the statement.

      § 143.056. Procedures After Felony Indictment or Misdemeanor Complaint

      (d) A fire fighter or police officer indicted for a felony or officially charged with
      the commission of a Class A or B misdemeanor who has also been charged
      by the department head with civil service violations directly related to the
      indictment or complaint may delay the civil service hearing for not more than
      30 days after the date of the final disposition of the indictment or complaint.

      §143.057. Hearing Examiners

      (a) In addition to the other notice requirements prescribed by this chapter,
      the letter of disciplinary action issued to a fire fighter or police officer must
      state that in an appeal of . . . a promotional passover . . . , the appealing fire
      fighter or police officer may elect to appeal to an independent third party
      hearing examiner instead of to the commission. (Emphasis added).

                                               7
       The statutes pertinent to resolution of this appeal are found in subchapter B, entitled

“Classification and Appointment,” §§ 143.021 through 143.038, and in subchapter D,

entitled “Disciplinary Actions,” §§ 143.051 through 143.057. The crux of Stanford’s

contentions hinges on whether Chief Hailey’s decision constituted a disciplinary action

which would implicate subchapter D of the Act.


       Chief Hailey testified that he proceeded under subchapter B, specifically §

143.036(f), in not appointing Stanford to lieutenant based on a “valid reason.” Stanford

maintains that Hailey’s decision in not promoting him constituted a disciplinary action under

subchapter D. We disagree.


       Disciplinary actions are governed by subchapter D and although § 143.057(a)

includes the phrase “promotional passover,” it has an additional element of a “letter of

disciplinary action.” Chief Hailey was unequivocal in his testimony that no disciplinary

action was taken against Stanford and that his salary remained the same. Specifically,

Chief Hailey did not issue Stanford a letter of disciplinary action. Moreover, Chief Hailey

complied with the requirements of § 143.036(f) by personally discussing the matter with

Stanford and filing his written reasons with the Commission.4 The manner in which the




       4
         See Windham v. City of DeSoto, No. 05-99-00805-CV, 2000 WL 1006968, at *2
(Tex.App.–Dallas July 21, 2000, pet. denied) (not designated for publication); Olson v. City
of Killeen, No. 03-97-00166-CV, 1997 WL 531126, at * 2 (Tex.App.–Austin Aug. 28, 1997,
writ denied) (not designated for publication)

                                              8
Legislature organized the statutes contemplates that a promotional passover need not

necessarily be disciplinary in nature.


       Having determined the intent of the relevant statutes, we answer Stanford’s first

three issues as follows:


       (1)    Chief Hailey did not violate § 143.057(a) by failing to notify Stanford
              of the right to appeal to an independent hearing examiner because
              such right is not implicated in a promotional bypass that is not
              disciplinary in nature.
       (2)    Chief Hailey did not violate §§ 143.010(a) and 143.052(d) by failing
              to provide Stanford written notification of the right to appeal his
              decision to the Commission within ten days. Section 143.010(a) does
              not impose a duty to notify a fire fighter or police officer of the right to
              file an appeal to the Commission. Moreover, § 143.052(d) applies
              only in the case of a disciplinary suspension.
       (3)    The Commission did not violate § 143.056(d) by failing to postpone
              the Commissioner’s hearing. The statute applies when a fire fighter
              or police officer has been charged with a Class A or B misdemeanor
              and has also been charged . . . with civil service violations directly
              related to the indictment . . . . Chief Hailey was very specific in his
              testimony that it is his practice to not take “any disciplinary action
              whatsoever” until criminal charges are resolved. Furthermore, there
              is nothing in the record to indicate that Stanford was charged with civil
              service violations. (Emphasis added).


       We have not overlooked Stanford’s reliance on numerous cases involving police

officers or fire fighters.5 A review of those cases, however, demonstrates that in each case


       5
        City of Temple Firemen’s and Policemen’s Civil Service Com’n v. Bender, 787
S.W.2d 951 (Tex. 1990); City of Laredo v. Almazan, 179 S.W.3d 132 (Tex.App.–San
Antonio 2005, no pet.); City of Amarillo v. Fenwick, 19 S.W.3d 499 (Tex.App.–Amarillo
2000, no pet.); and City of Carrollton v. Popescu, 806 S.W.2d 268 (Tex.App.–Dallas 1991,
no writ).

                                               9
the police officer or fire fighter in question was suspended.          A suspension triggers

application of a disciplinary action under subchapter D. Deputy Chief Cooper testified that

Stanford was not suspended or demoted. We conclude that the cases relied on by

Stanford are distinguishable and decline to apply them to the circumstances of the

underlying case. Issues one, two, and three are overruled.


       By his fourth issue, Stanford questions whether criminal charges, as opposed to a

conviction, constitute a “valid reason” for denial of a promotion. The Act does not define

the phrase nor have we found a case interpreting the phrase.6 Words not defined in a

statute are given their plain meaning, read in context, and construed according to the rules

of grammar and common usage. See Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005).

See also Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864, 865 (Tex.

1999). “Valid” is defined as having legal efficacy or force; well-grounded or justifiable.

Merriam-Webster’s Collegiate Dictionary 1381 (11th ed. 2003). The noun “reason” is a

statement offered in explanation or justification; a rationale ground or motive. Id. at 1037.


       By his written explanation filed with the Commission, Chief Hailey recited that,

pursuant to § 143.036(f), Stanford was not promoted “based on the ‘valid reason’ being


       6
         See generally City of Sherman v. Henry, 928 S.W.2d 464, 465-66 (Tex. 1996)
(police officer was passed over for promotion despite being first on list of eligible
candidates based on police chief’s “valid reason” that officer’s affair with the wife of a fellow
officer would adversely affect the department and promotion of the officer would have a
detrimental impact on morale and ability to perform the job. On appeal, however, the
Commission’s fact findings were not challenged; the issue for review was whether the
“valid reason” violated the officer’s constitutional rights).

                                               10
that he currently has charges pending against him.” This statement does not, however,

render the action taken a disciplinary action where, as here, a valid reason can arise from

the non-criminal consequences of the conduct associated with the pending criminal

charges, e.g. lack of an appropriate example to subordinates, inability to command the

respect and discipline of supervised personnel, and being unqualified to operate the

necessary fire apparatus.7 The explanation continued:


       I have very serious concerns about promoting an individual to the rank of
       Lieutenant, which is a supervisory position, when that person currently has
       charges pending against him. Also to be considered is the fact that
       [Stanford] chose not to comply with a state law, by refusing to take a
       breathalyzer test, which resulted in his driver’s license being suspended. As
       a Lieutenant, [Stanford] would be expected to know, follow and enforce our
       Rules and Regulations. . . .


Chief Hailey’s testimony before the Commission supports his written reason for not

promoting Stanford. We are satisfied that Chief Hailey provided a “valid reason” for not

promoting Stanford to the rank of lieutenant.


       Two of the grounds raised by Appellees in their motion for summary judgment were

that Chief Hailey’s decision was supported by substantial evidence and that he complied

with the requirements of § 143.036(f). We conclude the summary judgment evidence

supports the grounds relied upon by Appellees and that they have established entitlement




       7
       See Tex. Transp. Code Ann. §§ 724.011, 724.012, and 724.013 (Vernon 1999 and
Supp. 2006).

                                            11
to judgment as a matter of law. Thus, the trial court correctly granted summary judgment

in their favor and did not err in denying Stanford’s motion. Issue four is overruled.


       By his final issue, Stanford alleges error by the trial court in failing to award him

attorney’s fees. We disagree. Section 143.015(c) of the Act provides that the trial court

may award reasonable attorney’s fees to the prevailing party. Stanford, having failed to

establish his entitlement to judgment as a matter of law, was not entitled to attorney’s fees.

Issue five is overruled.


       Having overruled all of Stanford’s issues, the trial court’s judgment is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice




                                             12
