                                                                                  ACCEPTED
                                                                               04-15-00341-cv
                                                                  FOURTH COURT OF APPEALS
                                                                       SAN ANTONIO, TEXAS
                                                                         12/4/2015 1:51:06 PM
                                                                               KEITH HOTTLE
                                                                                       CLERK

                    NO. 04-15-00341-CV

               IN THE COURT OF APPEALS                 FILED IN
                                                4th COURT OF APPEALS
               FOURTH JUDICIAL DISTRICT          SAN ANTONIO, TEXAS
                  SAN ANTONIO, TEXAS            12/4/2015 1:51:06 PM
                                                  KEITH E. HOTTLE
                                                        Clerk
 ________________________________________________________

     BEXAR COUNTY CIVIL SERVICE COMMISSION

                                           Appellant

                               VS.

                 CARMELLA GUERRERO

                                           Appellee

_________________________________________________________

             APPELLEE’S BRIEF
_________________________________________________________



Orlando R. Lopez                     Robert W. Clore
State Bar No. 24010196               State Bar No. 24012436
Lopez Scott, L.L.C.                  Clore Appeals & Litigation Support
3703 N. St. Mary’s Street            15481 S. Padre Island Dr.
Suite 200                            Suite 101
San Antonio, Texas 78212             Corpus Christi, Texas 78418
Tel: 210-472-2100                    Tel: 361-558-3527
Fax: 210-472-2101                    Fax: 361-949-0908
Email: olopez@lopezscott.com         Email: rclore@robclorelaw.com



               ATTORNEYS FOR APPELLEE
                 CARMELLA GUERRERO
                                             TABLE OF CONTENTS

Table of Authorities ..................................................................................................... iv
Statement of the Case.....................................................................................................2
Issue Presented ...............................................................................................................3
Statement of Facts ..........................................................................................................4
   A. Carmella Guerrero Worked Her Way Up to the Position of Services
      Manager for the Bexar County Information Technology Department. ................4
   B. Ms. Guerrero Was Improperly Demoted in 2010. ................................................4
   C. Ms. Guerrero Appealed to the Commission, and During the Pendency
      of the Appeal, Her Position Was Eliminated to Deal with the
      “Problem”..............................................................................................................5
   D. The Commission Purported to “Overturn” Mrs. Guerrero’s Demotion
      While Nevertheless Ordering Her to Remain in Her Demoted Position. .............6
   E. Ms. Guerrero Appeals the Commission’s Ruling to the District Court,
      and the Commission Argues Lack of Jurisdiction Based on Elimination
      of Her Position. .....................................................................................................7
   F. At a Subsequent Hearing, the Commission Hears Uncontroverted
      Testimony that Mrs. Guerrero’s Position was Eliminated to Take Care
      of the Country’s “Problem” with Mrs. Guerrero. .................................................8
   G. The Trial Court Orders Mrs. Guerrero Reinstated to Her Former E-11
      Classification.......................................................................................................12

Summary of the Argument...........................................................................................13
Argument and Authorities............................................................................................14
   I. Standard of Review. ............................................................................................14
   II. The Trial Court Applied the Correct Standard; Appellant Fails to Cite a
        Single Page from the Commission’s Record in its Substantial Evidence
        Argument . ..........................................................................................................15
   III. The Commission’s Order Exceeded its Authority ..............................................16
   A. Read in Context, the Word “May” in Rule 7.6.14(16) Gives the
        Commission Discretion to Choose from Among Three Dispositions. ...............19
   B. Rule 7.6.14(18) Further Reinforces that the Commission’s Only
        Alternatives Were to Either (1) Uphold, (2) Dismiss, or (3) Reduce the
        Demotion.............................................................................................................22



                                                             ii
   C. The Commission Has the Authority to Actually Overturn Mrs.
       Guerrero’s Demotion Regardless of Intervening County Budgetary
       Decisions. ............................................................................................................23
   IV. Mrs. Guerrero was Denied Due Process .............................................................25
   V. The Commission’s Decision Was Made Through Unlawful Procedure ............27
   VI. The Commission’s Refusal to Reinstate Mrs. Guerrero is Not Supported
       by Substantial Evidence. .....................................................................................29
   VII. Public Policy Weighs Strongly in Favor of the Trial Court’s Judgment ..........31
   VIII. The Commission’s Decision to Keep Mrs. Guerrero in Her Demoted
       Position was Not a Victory for Mrs. Guerrero. ..................................................33
   IX. The Commission’s Hyper-Technical Parsing of Conclusion of Law
       Number Four Should be Rejected. ......................................................................34

Conclusion & Prayer ....................................................................................................37
Certificate of Service ...................................................................................................39
Rule 9.4(i) Certification ...............................................................................................39




                                                            iii
                                       TABLE OF AUTHORITIES

                                                        Cases

Associated Builders & Contractors of Texas Gulf Coast, Inc. v. U.S. Dep't
of Energy, 451 F. Supp. 281, 286 (S.D. Tex. 1978) ................................................ 26

Bexar County Sheriff’s Civil Serv. Comm’n v. Davis, 802 S.W.2d 659, 661
& n. 2 (Tex. 1990).................................................................................................... 25

Bexar Cty. Civil Service Com'n v. Casals, 63 S.W.3d 57, 60 (Tex.
App.—San Antonio 2001, no pet.). .............................................................15, 17, 18

Bexar Cty. Sheriff's Dep't v. Sanchez, No. 04-02-00251-CV,
2004 WL 2997687, at *1 (Tex. App.—San Antonio 2004,
pet. denied) (mem. op.) ............................................................................................ 14

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794
(Tex. 2002)……. ...................................................................................................... 36

Carrollton-Farmers Branch Indp. Schl. Dist. v. JPD, Inc., 168 S.W.3d
184, 190 (Tex. App.—Dallas 2005, no pet.)…........................................................ 23

City of San Antonio v. Wallace, 161 Tex. 41, 45-46, 338 S.W.2d 153,
156 (1960) ....................................................................................................27, 28, 32

City of Wichita Falls v. Harris, 532 S.W.2d 653, 658 (Tex. Civ.
App.—Fort Worth 1976, writ ref’d n.r.e.) .........................................................31, 32

Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238,
256 (Tex. 2008) ........................................................................................................ 19

County of Dallas v. Wiland, 216 S.W.3d 344, 354 (Tex. 2007) .............................. 25

Dallas County Civil Service Comm'n v. Warren, 988 S.W.2d 864,
869 (Tex. App.-San Antonio 1999, no pet.) ......................................................14, 15

Esparza v. Bexar Cty., No. 04-02-00841-CV, 2003 WL 23005015,
at *2 (Tex. App.—San Antonio 2003, no pet.) (mem. op.) ...............................16, 29


                                                            iv
Grimes Cty. Bail Bond Bd. v. Ellen, 267 S.W.3d 310, 316-17
(Tex. App.—Houston [14th Dist.] 2008, pet. denied)…. ..................................20, 21

Guerrero v. Bexar Cty. Civil Serv. Comm'n, No. 04-12-00523-CV,
2012 WL 6728260 (Tex. App.—San Antonio 2012, no pet.)
(mem. op.) ............................................................................................................ 8, 13

Hanford-Southport, LLC v. City of San Antonio ex rel. San Antonio
Water Sys., 387 S.W.3d 849, 853 (Tex. App.—San Antonio 2012,
pet. denied) ............................................................................................................... 36

Harris County Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d
838, 846-47 (Tex. 2009) .......................................................................................... 22

Johnson v. Second Injury Fund, 688 S.W.2d 107, 108-09 (Tex. 1985) .................. 20

Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982) ................................... 25

Mireles v. Texas Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999) ............14, 28

Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010) ................... 13

Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537,
571 (Tex. App.—San Antonio 2011, no pet.) .......................................................... 19

Rice v. Kuhn, No. 04-03-00088-CV, 2005 WL 418202, at *2
(Tex. App.—San Antonio 2005, pet. denied) (mem. op.). ...................................... 34

Santiago v. Bexar Cty., No. 04-11-00553-CV, 2012 WL 3776484,
at *1 (Tex. App.—San Antonio 2012, no pet.) (mem. op.) ...............................15, 29

Seay v. Hall, 677 S.W.2d 19, 25 (Tex. 1984) .......................................................... 23

Smith v. Dep't of Health & Human Res., 432 So.2d 997,
999 (La. Ct. App. 1983) ........................................................................................... 26

Tarrant County v. Van Sickle, 98 S.W.3d 358, 366 (Tex.
App.—Fort Worth 2003, pet. denied) ...................................................................... 25

Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 52 (Tex. 2014) ....................... 20
                                                              v
University of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995) ............... 25

Woychesin v. Harris Cty. Sheriff's Civil Serv. Comm'n,
No. 14-11-00304-CV, 2012 WL 3776359, at *3 (Tex. App.—Houston
[14th Dist.] 2012, no pet.) (mem. op.) .................................................................... 21

                                               Statutes & Rules

TEX. LOC. GOV’T CODE §§ 158.012, .0121, .0122 ......... 2, 3, 7, 8, 12-14, 16, 17, 19,
                                                           20, 23, 25-27, 29, 31, 35

TEX. GOV’T CODE § 311.021(2) ............................................................................... 20

U.S. CONST. amend XIV, § 1 ................................................................................... 25

TEX. CONST. art. I, § 19 ............................................................................................ 25

                                                 Miscellaneous

Bexar County Civil Service Commission Rule 7.6.14 ............... 3, 5, 7, 9, 12-14, 18,
                                                                         19-27, 30-33

Office of the Attorney General Opinion No. JC-0529 (July 9, 2002). .................... 32




                                                          vi
TO THE HONORABLE COURT OF APPEALS:

      This Court should affirm the decision of the trial court, which rejected an

unjustified and egregious decision of the Bexar Civil Service Commission. The

Commission found that Carmella Guerrero was improperly demoted and purported

to “overturn” her demotion, but then, incredibly, ordered that she remain in her

demoted position (CR 153-54). It is as if a judge “overturned” a death sentence

while ordering the executioner to go forward.

      Nobody from the Commission, including its attorney or former Director and

employee of more than thirty years, has ever seen this done before (RR 40-42;

Agreed Supp. CR TR-0222, 0230). As it turns out, the undisputed evidence is that

the County specifically eliminated Mrs. Guerrero’s position to deal with the

“problem” of her appeal, and not as a routine budgetary matter (Agreed Supp. CR

TR-0185-87,190-92). Only then did the Commission advance its creative argument

that once a position is eliminated, it has no authority to reinstate an employee.

      Fortunately, neither the Texas Civil Service Laws nor the Commission’s

own rules promulgated thereunder support this ruse. Neither say a word about

limiting the Commission’s authority when a position has been eliminated. These

words most definitely should not be read into the statute or Commission rules.

      Both the Texas Civil Service Laws and the Commission’s rules authorize the

Commission and trial court to reinstate Mrs. Guerrero to her prior position, or at


                                          1
least to her prior classification and pay, without regard to whether the County has

since eliminated the position. If the Commission is correct and it is powerless to

reinstate an employee once the County has eliminated a position, then the County

can avoid an appeal of employment decisions in every case by merely eliminating

the position after-the-fact. This is not what the civil service laws had in mind.

      The trial court correctly rejected the Commission’s decision under a number

of grounds in Sections 158.012 and 158.0121 of the Texas Local Government

Code. Further, the trial court correctly determined that substantial evidence did not

support the Commission’s decision to keep Mrs. Guerrero in her demoted position.

The trial court’s order reinstating Mrs. Guerrero must be affirmed.

                             STATEMENT OF THE CASE
      This is a wrongful demotion case involving Bexar County employee,

Carmella Guerrero. Mrs. Guerrero filed an appeal with the Bexar County Civil

Service Commission after she was demoted from her E-11 classified position to an

E-5 position (Agreed Supp. CR TR-0106-09). On April 26, 2012, the Commission

heard Mrs. Guerrero’s administrative appeal, and, in a written order, “overturned”

Mrs. Guerrero’s demotion and awarded her partial back pay (CR 153-54). Despite

purportedly “overturning” the demotion, however, the Commission ordered her “to

remain in her current [demoted] position . . . at her current salary.” (CR 154).




                                           2
      A second hearing was held before the Commission on August 21, 2014,

during which time additional evidence was presented, pursuant to TEX. LOC. GOV’T

CODE § 158.0122, concerning the issue of reinstatement (Agreed Supp. CR TR-

0157-279). At the conclusion of the hearing, the Commission upheld its order

keeping Mrs. Guerrero in her demoted position (CR 469-70; Agreed Supp. CR TR-

0276).

      The district court then heard Mrs. Guerrero’s appeal (RR), and signed a

judgment on March 5, 2015, ordering her reinstated to her former E-11

classification and salary (CR 487-88). The Commission brings this appeal from the

March 5, 2015 judgment reinstating Mrs. Guerrero to her prior E-11 classification

with Bexar County.

                                ISSUES PRESENTED
   1. The trial court’s judgment is proper under TEX. LOC. GOV’T CODE §§
      158.012 and 158.0121 because the Commission exceeded its authority by
      failing to follow its own Rules 7.6.14(16) and (17).

   2. The trial court’s judgment is proper under §§ 158.012 and 158.0121 because
      the Commission, in failing to follow its own rules, and in working with the
      County to deny her meaningful appellate relief, violated Mrs. Guerrero’s due
      process rights and made its decision through an unlawful procedure.

   3. The district court correctly recognized that, in light of the finding that Mrs.
      Guerrero was wrongfully demoted, the Commission’s keeping Mrs.
      Guerrero in her demoted position at her demoted salary was against the
      substantial evidence.




                                         3
                              STATEMENT OF FACTS

A.    Carmella Guerrero Worked Her Way Up to the Position of Services
      Manager for the Bexar County Information Technology Department.

        Mrs. Guerrero has worked for Bexar County since 1993 (Agreed Supp. CR

TR-0023, 0138-39). Since that time she rose to the position of IT Services

Manager for the Bexar County Information Technology Department (“BCITD”),

which was classified as an E-11 position (Agreed Supp. CR TR-0023, 0138, 0249).

Based on her E-11 classification, Mrs. Guerrero’s salary was approximately

$80,616.00 per year (Id. at TR-0249, 0254).

        As the IT Services Manager for the BCITD, Mrs. Guerrero was responsible

for the full management of all department activities for all managers and the entire

department. She reported directly to the department head, and occupied the second

highest position in the department’s organizational chart (Agreed Supp. Cr TR-

0023, p. 68). She was the highest ranked non-technological employee in the entire

department (Id.). Before the Chief Information Officer, Cathy Maras, was hired,

Ms. Guerrero also served as the interim department head (Agreed Supp. CR TR-

0011, pp. 18-19).

B.    Ms. Guerrero Was Improperly Demoted in 2010.
        By all accounts, Mrs. Guerrero has been an exceptional employee for the

County throughout her more than twenty-year tenure (Agreed Supp. CR TR-

00033, pp.106-07; TR-00072, pp. 262-63; 267-69; TR-00121, TR-00125, TR-
                                         4
00135-137, TR-00140-147). She never had a negative job performance review (Id.

at TR-00025, p. 76).

          However, in 2010, Ms. Guerrero’s supervisor, Ms. Maras, demoted Ms.

Guerrero to the E-5 classified position of Technology Business Analyst (Agreed

Supp. CR TR-0244). Her salary was reduced to $58,140.00 per year (CR 65). The

demotion significantly diminished Ms. Guerrero’s responsibilities from her prior

E-11 position (Agreed Supp. CR TR-0024, pp. 72-73).

          It is undisputed that Mrs. Guerrero was wrongfully demoted (CR 153-54)

(Commission’s order “overturning” demotion); (CR 513-14) (unchallenged finding

of fact that “[t]he Commission determined that Plaintiff’s motion was without

merit).

C.    Ms. Guerrero Appealed to the Commission, and During the Pendency of
      the Appeal, Her Position Was Eliminated to Deal with the “Problem”.
          Ms. Guerrero appealed her demotion with the Commission pursuant to

Bexar County Civil Service Commission Rule and Regulation 7.6.14 (Agreed

Supp. CR. TR-0354, 468-470). However, before she could obtain relief, the

County eliminated her position “because they didn’t want her back because of her

appeal.” (Agreed Supp. CR TR-192). Mrs. Guerrero’s appeal had become an issue

and “one of the easiest ways to rectify the issue was to eliminate the position.”

(Agreed Supp. CR TR-185). There is no evidence disputing that the County

eliminated Mrs. Guerrero’s position to take care of the problem of her appeal.

                                         5
        Although the County also purported to eliminate fifteen other positions,

none of those fifteen positions were filled at the time (Agreed Supp. CR TR 0189-

91). Mrs. Guerrero’s was thus the only person who lost her job (Id.).

D.    The Commission Purported to “Overturn” Mrs. Guerrero’s Demotion
      While Nevertheless Ordering Her to Remain in Her Demoted Position.
        The Commission then held a hearing on Mrs. Guerrero’s appeal on April

26, 2012, and granted Mrs. Guerrero the following relief:




(CR 153-54).

        Thus, the Commission recognized the impropriety of Mrs. Guerrero’s

demotion and purported to “overturn” the demotion. Yet, by requiring Mrs.

Guerrero to remain in her demoted position at her demoted salary, the

Commission, in fact, did not overturn the demotion.


                                         6
        The Commission’s order indicated that Mrs. Guerrero’s position had been

eliminated by the County on October 1, 2011 (CR 154). Nothing in the

Commission’s rules contemplates that the Commission should confer with the

County to determine the status of the employee’s position in making its ruling

(Agreed Supp. CR TR-0468-70). Rule 7.6.14(17) does provide, however, that

“[s]hould the office or department refuse to reinstate the employee as ordered by

the Commission, the employee shall be entitled to their full salary just as though

they had been reinstated as ordered.” (Id. at TR-0470).

E.    Mrs. Guerrero Appeals the Commission’s Ruling to the District Court,
      and the Commission Argues Lack of Jurisdiction Based on Elimination
      of her Position.
        Obviously dissatisfied with the Commission’s empty relief from her

improper demotion, Mrs. Guerrero filed an appeal with the district court pursuant

to TEX. LOC. GOV’T CODE § 158.012. Under that section of the Texas Civil Service

laws, “[a] 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. . . .” Id. at §

158.012(a).

        The Commission filed a plea to the jurisdiction, arguing that because Mrs.

Guerrero’s position had been eliminated, its hands were tied (CR 15-20).

According to the Commission, only the Commissioner’s Court can create


                                         7
positions, and once Mrs. Guerrero’s position was eliminated, the Commission was

powerless to reinstate her (Id. at 17-19).

        After the trial court granted the plea, this Court reversed, determining that

even though the Commission’s order purportedly “overturned” Mrs. Guerrero’s

demotion, she was still demoted because she was not reinstated to her prior

position. Guerrero v. Bexar Cty. Civil Serv. Comm’n, No. 04-12-00523-CV, 2012

WL 6728260, at *2 (Tex. App.—San Antonio 2012, no pet.) (mem. op.); (CR 61-

65). With respect to the Commission’s argument that it had granted all the relief it

could, this Court observed, “the intent of the Legislature in enacting section

158.012 was to provide judicial review to a county employee who remains

demoted after the Commission’s final decision. Allowing a county employee to

pursue her right to judicial review unaffected by subsequent budgetary actions is a

‘just and reasonable result.’” Id. at *2; (CR 65).

F.    At a Subsequent Hearing, the Commission Hears Uncontroverted
      Testimony that Mrs. Guerrero’s Position was Eliminated to Take Care
      of the County’s “Problem” with Mrs. Guerrero.
        On August 21, 2014, the Commission held a second hearing to allow

additional evidence on the issue of whether it should reinstate Mrs. Guerrero to her

former employment classification (Agreed Supp. CR TR-0157-279). Mrs. Guerrero

introduced Bexar County’s Civil Service Commission Rule 7.6.14(16), which

requires the Commission to either (1) “deny the appeal and uphold the disciplinary


                                             8
action,” (2) “impose a lesser penalty. . . ,” or (3) “overturn the disciplinary

action[.]” (Id. at TR-468-70). By purportedly “overturning” the demotion, but then

expressly keeping it in place, the Commission’s order does none of the three (CR

153-54). Nothing in Rule 7.6.14 indicates that in ruling, the Commission is to

evaluate where the employee fits within the constraints of the County budget

(Agreed Supp. CR TR-0468-70).

        Mrs. Guerrero also introduced Rule 7.6.14(17), which provides that if the

office or department refuses to reinstate the employee, the Commission is required

to reinstate the employee by classification and pay (Agreed Supp. CR TR-0470).

Under Commission Rules 7.6.14(16), the Commission was to choose from the

three dispositions (Id.). In Mrs. Guerrero’s case, once the Commission purported to

overturn the demotion, it was required to reinstate her. If the BCITD had then

refused to reinstate her because her position no longer existed, the Commission

should have ordered that Mrs. Guerrero “shall be entitled to [her] full salary just as

though [she] had been reinstated as ordered.” (Agreed Supp. CR TR-0470).

        During the hearing, Henry Reyes, the former budget director Bexar County

who handled the elimination of Mrs. Guerrero’s position, provided uncontroverted

testimony that the positions were not eliminated as part of a routine budget change,

but rather to specifically deal with Mrs. Guerrero’s appeal of her demotion (Id. at

TR-0180-83, 0185-86, 0190-92).


                                          9
        Mr. Reyes, who reported to County Manager, David Smith (Id. at TR-

0182-83), testified:

             Q. Let’s be a little more specific, Mr. Reyes. Tell the
             Commissioners what Mr. Smith told you about [Mrs.
             Guerrero’s] position and how he went about doing it.

             A. It had become an issue with the County and with
             BCIT specifically. And one of the easiest ways to rectify
             the issue was to eliminate the position.

             Q. And by issue, you mean that Mr. Smith told you that
             there was a problem at BCIT with Ms. Guerrero and Ms.
             Mares?

             A. Correct.

                                          ***

             Q. And during that meeting while you were putting the
             budget together, he told you we’ve got a problem with
             Ms. Guerrero?

             A. That’s his direction.

             Q. And that he told you to do what?

             A. Eliminate the position.

                                        ****

             Q. Okay. But in terms of, you know, he didn’t give you
             any other legitimate reasons of why he should have that
             position eliminated, right?

             A. If you’re asking whether it was an efficiency issue,
             whether it was a cost saving issue, no.

             Q. It was simply because she had become a problem?
                                          10
             A. Yes.

                                        ****

             Q. And that based on orders that you got, you helped the
             County eliminate her position, right?

             A. Yes.
                                        ****

             Q. That with your help with David Smith, you-all
             eliminated a problem for BCIT by getting rid of her
             because they didn’t want her back because of her appeal
             here, right?

             A. That’s correct.

(Id. at TR-0185-87, 192). Mr. Reyes also explained that although fifteen other

positions were technically deleted, Mrs. Guerrero’s position was the only one

occupied by an actual person (Id. at 190-192).

        Appellant did not present any evidence controverting Mr. Reyes’

testimony that Mrs. Guerrero’s position was eliminated to prevent her from

challenging her demotion on appeal. Appellant’s statements in its brief that Mrs.

Guerrero’s position was eliminated through the normal and ordinary budgetary

process is false, and there is no evidence support it.

        Andrea San Miguel, the retired Civil Service Director who worked for

Bexar County for more than thirty-nine years, testified that in all her years at the

County, she has never seen a situation like Mrs. Guerrero’s (Agreed Supp. CR TR-


                                          11
0222, 0230). The Commission’s attorney has not seen it in his fifteen years with

the County (RR 40-41).

        Despite the substantial evidence showing that Mrs. Guerrero was entitled

to actually have her demotion overturned as set forth in its own Rule 7.6.14(16),

the Commission upheld its April 26, 2012 order keeping Mrs. Guerrero in her

demoted position (CR 469-70; Agreed Supp. CR TR-0276).

G.    The Trial Court Orders Mrs. Guerrero Reinstated to Her Former E-11
      Classification.
      The district court heard Mrs. Guerrero’s appeal on December 12, 2014 (RR),

and signed a judgment on March 5, 2015, ordering her reinstated to her former “E-

11 classification with salary and benefits equal to or greater than the position she

held previously under the Bexar County employment classification.” (CR 487-88);

see also TEX. LOC. GOV’T CODE § 158.012© (“court may order reinstatement of

the employee, payment of back pay, or other appropriate relief”).

      The trial court also entered findings of fact and conclusions of law (CR 513-

15). Among the trial court’s findings of fact, all of which are unchallenged, the

court found that “the Commission determined that the Plaintiff’s demotion was

without merit[.]” (CR 513-14).

      The court’s conclusions of law state that the Commission exceeded its own

authority under Commission Rule 7.6.14, the Commission’s refusal to reinstate

Mrs. Guerrero violates her due process rights, the Commission’s ruling was made

                                        12
through an unlawful procedure in refusing to reinstate Mrs. Guerrero where her

position was deleted during the pendency of her appeal, and that the Commission’s

relief granted was not reasonably supported by substantial evidence. TEX. LOC.

GOV’T CODE § 158.0121; (CR 514-15).

                           SUMMARY OF THE ARGUMENT
      The last time Carmella Guerrero was before this Court on a plea to the

jurisdiction in the same dispute, this Court instructed:

             [T]he intent of the Legislature in enacting section
             158.012 was to provide judicial review to a county
             employee who remains demoted after the Commission’s
             final decision. Allowing a county employee to pursue her
             judicial review unaffected by subsequent budgetary
             actions is a “just and reasonable result.”

Guerrero, 2012 WL 6728260, at *2 (quoting Presidio Indep. Sch. Dist. v. Scott,

309 S.W.3d 927, 930 (Tex. 2010)); (CR 61-65).

      Dicta or not, the truth in this Court’s language is unmistakeable—a county

employee should not be denied meaningful judicial review or due process based on

subsequent budgetary actions of the County. This is particularly the case where, as

here, the budgetary actions are specifically designed to keep the employee from

obtaining meaningful appellate relief.

      Rule 7.6.14(16) and (17) allows the Commission to actually overturn Mrs.

Guerrero’s demotion, and not to merely say it is doing so, but then ordering her to

stay in her demoted position. The rule makes no exception for situations in which a

                                          13
position has been eliminated. Under the plain language of the rule, the Commission

exceeded its authority, violated due process, and made a decision based on

unlawful procedure, by failing to order one of the required dispositions. The trial

court also correctly set aside the Commission’s decision as contrary to the

substantial evidence.

                          ARGUMENT AND AUTHORITIES
I.    Standard of Review.

      Mrs. Guerrero filed an appeal to the district court under Section 158.012,

which authorizes the district court to “order reinstatement of the employee,

payment of back pay, or other appropriate relief.” TEX. LOC. GOV’T CODE §

158.012(b). “An appeal under this section is under the substantial evidence rule[.]”

TEX. LOC. GOV’T CODE § 158.012(b); Bexar Cty. Sheriff’s Dep’t v. Sanchez, No.

04-02-00251-CV, 2004 WL 2997687, at *1 (Tex. App.—San Antonio 2004, pet.

denied) (mem. op.).

      Under this rule, “[t]he issue for the reviewing court is not whether the

agency’s decision was correct, but only whether the record demonstrates some

reasonable basis for the agency’s action.” Mireles v. Texas Dep’t of Pub. Safety, 9

S.W.3d 128, 131 (Tex. 1999). Although resolution of factual conflicts is left to the

Commission, there must be some reasonable basis in the record for the action

taken. Dallas County Civil Service Comm’n v. Warren, 988 S.W.2d 864, 869 (Tex.


                                        14
App.-San Antonio 1999, no pet.). “The reviewing court, whether the district court

or the court of appeals, may not set aside the Commission’s decision because it

would reach a different conclusion; it may only reverse if that decision was made

without regard to the facts or the law and as such, was unreasonable, arbitrary, or

capricious.” Santiago v. Bexar Cty., No. 04-11-00553-CV, 2012 WL 3776484, at

*1 (Tex. App.—San Antonio 2012, no pet.) (mem. op.). Whether substantial

evidence exists is a question of law. Warren, 988 S.W.2d at 870.

      “[E]ven if substantial evidence supports the commission’s order, the Texas

Local Government Code directs the district court to reverse or remand the

commission’s decision if the petitioner’s substantial rights 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. . . .” Bexar County

Civil Service Com’n v. Casals, 63 S.W.3d 57, 60 (Tex. App.—San Antonio 2001,

no pet.); TEX. LOC. GOV’T CODE § 158.0121.

II.   The Trial Court Applied the Correct Standard; Appellant Fails to Cite a
      Single Page from the Commission’s Record in its Substantial Evidence
      Argument.

      The Commission repeatedly argues that the trial court failed to employ the

substantial evidence rule in reviewing the Commission’s order. See Appellant’s

Brief, at 3-6, 8, 13. It fails to explain, however, how the court departed from the


                                        15
appropriate standard other than to suggest, generically, that the court replaced the

Commission’s decision with its own.

       In fact, the Commission does not cite to a single page from the

Commission’s record in arguing that substantial evidence supported the

Commission’s decision. Esparza v. Bexar Cty., No. 04-02-00841-CV, 2003 WL

23005015, at *2 (Tex. App.—San Antonio 2003, no pet.) (mem. op.) (when

reviewing the Commission’s decision for substantial evidence, the trial court is

confined to the commission record). Although it is the petitioner’s burden to show

the decision was not based on substantial evidence, Appellant gives this Court no

evidentiary basis to conclude the trial court got it wrong. Serrano v. Francis

Properties I, Ltd., 411 S.W.3d 661, 666 (Tex. App.—San Antonio 2013, pet.

dism’d w.o.j.) (“[w]e are not required to sift through the record in search of facts

supporting a party’s position”); TEX. R. APP. P. 38.1(f), (h). As demonstrated infra,

the court got it right.

III.   The Commission’s Order Exceeded its Authority.
       The trial court’s rejection of the Commission’s ruling is supported on

multiple legal grounds, any one of which stands on its own. First, the trial court’s

order was appropriate because the Commission exceeded its authority by ordering

relief contrary to its own Rules. See TEX. LOC. GOV’T CODE § 158.0121(2)(B)

(“[i]n an appeal under Section 158.012, the district court . . . shall reverse or


                                         16
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 . . . in excess of the commission’s authority”).

       This Court recognizes that where the Commission fails to follow its own

rules, it exceeds its authority as contemplated by Section 158.0121. Bexar County

Civil Service Commission v. Casals, 63 S.W.3d 57, 61 (Tex. App.—San Antonio

2001, no pet.). In Casals, this Court found the Commission failed to follow its own

rules requiring dismissal of a disciplinary action where the complaining

department head or elected official failed to attend the hearing before the

Commission. Id. at 58-61. Despite the absence of the department head at the

hearing, the Commission refused to dismiss a termination. Id. at 60-61.

       According to this Court, “[t]he Commission is bound by its rules to the same

degree as all other participants in the proceeding.” Id. By failing to follow its own

rules, the Commission exceeded its authority, which prejudiced the employee’s

substantial rights. Id. at 61.

       As in Casals, the Commission here failed follow its own rules and exceeded

its authority. In particular, the Commission’s order fails to comply with its own

Rule 7.6.14(16), which provides:

              “The Commission may choose to

              [(1)] deny the appeal and uphold the disciplinary action,


                                          17
            [(2)] impose a lesser penalty than the one taken by the
            office or department and may include an award of back
            pay, or

            [(3)] overturn the disciplinary action.”

(Supp. CR TR-0354, 468-470).

      The Commission’s order fails to carry out any of the three enumerated

dispositions. Although the Commission’s order states that Mrs. Guerrero’s

demotion is “overturned”, it expressly orders that Mrs. Guerrero “will remain in

her [demoted] position . . . at her [demoted] salary.” (CR 154). Because Mrs.

Guerrero’s demotion remains in place on the plain face of the order, her demotion

was not overturned.

      Thus, the Commission exceeded its authority. Casals, 63 S.W.3d at 61.

Further, Mrs. Guerrero’s substantial rights were prejudiced by the Commission’s

exceeding its authority. She should have been reinstated to her prior E-11

classification making $80,616.00, yet the Commission ordered her to remain in her

demoted E-5 classification making $58,140.00, $22,476.00 less per year (Agreed

Supp. CR TR-0248). Further, Mrs. Guerrero’s job responsibilities are dramatically

reduced and she is required to report to individuals who previously reported to her

(See id. at TR-00024-25, pp. 73-75). Accordingly, the trial court’s judgment was

proper under Section 158.0121(2)(B).




                                         18
A.    Read in Context, the Word “May” in Rule 7.6.14(16) Gives the
      Commission Discretion to Choose from Among Three Dispositions.
      The Commission urges that this Court read the list of dispositions in Rule

7.6.14(16) as non-exhaustive and non-mandatory based on the “may” language in

the rule. See Rule 7.6.14(16) (“The Commission may [(1)] choose to deny the

appeal and uphold the disciplinary action, [(2)] impose a lesser penalty than the

one taken by the office or department and may include an award of back pay, or

[(3)] overturn the disciplinary action”) (Supp. CR TR-0354, 468-470).

      Viewed in context, it is clear the word “may” provides the Commission with

discretion or power to choose from one of the three articulated dispositions. TEX.

GOV’T CODE § 311.016 (providing that unless the context requires differently, the

word “may” “creates discretionary authority or grants permission or a power”).

Otherwise, the Commission can simply take whatever action it wants, and Rule

7.6.14 is meaningless. See TEX. GOV’T CODE § 311.021(2) (“in enacting a statute,

it is presumed that . . . [t]he entire statute is intended to be effective”); Prize

Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 571 (Tex. App.—San

Antonio 2011, no pet.) (“court[s] must not interpret a statute in a manner that

renders any part meaningless or superfluous”) (citing Columbia Med. Ctr. Of Las

Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008)).

      If the drafters of Rule 7.6.14(16) had intended to make the list non-

exhaustive, they could have used the word “including” or a catchall that the

                                        19
Commission can enter other appropriate relief. Compare Rule 7.6.14(16) with TEX.

LOC. GOV’T CODE § 158.012© (“If the district court renders judgment for the

petitioner, the court may order reinstatement of the employee, payment of back

pay, or other appropriate relief”) (emphasis added). Their failure to do so must be

construed as purposeful. See Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 52

(Tex. 2014) (courts must “ xclusi[e] the Legislature included words that it

intended to include and omitted words it intended to omit”); Johnson v. Second

Injury Fund, 688 S.W.2d 107, 108-09 (Tex. 1985) (under the doctrine of

  xclusion   unius est    xclusion alterius, “the express mention or enumeration of

one person, thing, consequence or class is equivalent to an express exclusion of all

others”).

      In a case involving construction of a similar phrase, the Houston Fourteenth

Court of Appeals interpreted “may” as giving a board discretion to choose

exclusively from the options listed. Grimes Cty. Bail Bond Bd. V. Ellen, 267

S.W.3d 310, 316-17 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). In

Grimes, the statute provided that “a board may revoke or suspend a license if the

license holder . . . fails to pay a judgment.” TEX. OCC. CODE § 1704.252(8)

(emphasis added). As in this case, it was argued that the word “may” gave the

board discretion to take one of the listed actions, or another of its choosing.




                                          20
      The court of appeals rejected this interpretation, noting that “[t]he word

‘may’ must not be analyzed in isolation; statutory context must be considered.”

Grimes, 267 S.W.3d at 316-17. That is, “[t]he word ‘may’ cannot be divorced from

its surrounding language to change the statute’s meaning, or to add an option the

statute does not provide[.]” Id. at 317. Therefore, the Court concluded the statute

gave “the trial court discretion to choose between revocation and suspension.” Id.

As in Grimes, Rule 7.6.14(16)’s use of the word “may”, read in context, gives the

Commission discretion to choose among the listed options.

      This case is unlike the Woychesin v. Harris Cty. Sheriff’s Civil Serv.

Comm’n opinion cited by the Commission. No. 14-11-00304-CV, 2012 WL

3776359, at *3 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (mem. op.). In

Woychesin, the rule in question concerned a ten-day timeline for holding a hearing,

and not a list of dispositions. The word “may” was not even in the rule. The court

of appeals interpreted the rule as non-mandatory because it provided no

consequences for failing to comply with the timeline, and did not instruct that a

hearing could not be held after ten days. Woychesin is thus inapposite.

      The Commission’s overly-simplistic construction depends on isolation of the

word “may”, while ignoring other rules of statutory construction. Under the plain

language of Rule 7.6.14(16), the Commission was required to take one of the




                                         21
enumerated actions, and was not free to craft the unique and unreasonable

disposition entered against Mrs. Guerrero.

B.    Rule 7.6.14(18) Further Reinforces that the Commission’s Only
      Alternatives Were to Either (1) Uphold, (2) Dismiss, or (3) Reduce the
      Demotion.
      The surrounding sections of Rule 7.6.14(16) support that the Commission

must choose from among the three enumerated dispositions. Rule 7.6.14(18)

requires the Commission to issue a written order at the conclusion of an

employee’s appeal of her discipline (Agreed Supp. CR TR-0354, 468-470). It

provides:

            [a] written order of the [Commission] shall be entered
            which clearly states whether the [County’s] action will be
            [(1)] upheld, [(2)] dismissed, or [(3)] reduced. [The
            Commission’s] order shall be signed by the
            members…who made the decision and sent to all parties.

Id.

      If, as claimed by the Commission, it is vested with unlimited discretion, and

can take whatever action it deems fit, then Rule 7.6.14(18), like 7.6.14(16) under

the Commission’s interpretation, is meaningless. Obviously, this illogical

construction of the rules cannot be followed.




                                         22
   C. The Commission Has the Authority to Actually Overturn Mrs.
      Guerrero’s Demotion Regardless of Intervening County Budgetary
      Decisions.
      The Commission’s argument that it could not overturn Mrs. Guerrero’s

demotion by reinstating her once her position was eliminated, and that only the

Commissioners Court can create a position, is misguided for multiple reasons.

      First, Rule 7.6.14 gives the Commission the power to overturn demotions

and makes no exception for instances in which a position is eliminated. Similarly,

Section 158.012 of the Texas Local Government Code enables the trial court to

reinstate without regard to whether a position has been eliminated.

      The omission of an exception must be presumed as intentional. Carrollton-

Farmers Branch Indp. Schl. Dist. v. JPD, Inc., 168 S.W.3d 184, 190 (Tex. App.—

Dallas 2005, no pet.). Correspondingly, this Court should not read an exception

into the statute or the Commission’s own rules as advanced by Appellant. See

Harris County Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 846-47 (Tex.

2009); Seay v. Hall, 677 S.W.2d 19, 25 (Tex. 1984). Thus, there is nothing in the

rule or statute supporting the notion that they only apply when the position has not

been eliminated.

      Further, among the myriad of cases cited by the Commission discussing the

role of the Commissioners Court in making budgetary decisions, not a single one




                                        23
indicates the Commission cannot order reinstatement or reinstatement of pay once

a position has been eliminated. There is no such case because it is not the law.

      As a practical matter, the Commission is not charged with evaluating where

the employee fits within the constraints of the County’s budget. Rather, under the

Commission’s rules, it determines whether to uphold the demotion, impose a lesser

penalty, or overturn the disciplinary action. Commission Rule 7.6.14(16). Once the

Commission determines to overturn the disciplinary action, if there is a problem

with reinstatement, Rule 7.6.14(17) specifically requires that “the employee shall

be entitled to their full salary just as though they had been reinstated as ordered.”

Bexar County Civil Service Commission Rule 7.6.14(17).

      The Commission argues this portion of Rule 7.6.14 is not applicable because

the BCIT did not refuse to reinstate Mrs. Guerrero. That is exactly the point.

      The Commission should have ordered Mrs. Guerrero reinstated, and at that

point, the BCIT could have refused to reinstate Mrs. Guerrero based on the

eliminated position. At that juncture, the Commission would have been required to

order Mrs. Guerrero be awarded her “full salary as though [she] had been

reinstated as ordered.” Id. The Commission’s failure to follow its own procedures,

and not the County’s budgetary decisions, resulted in Mrs. Guerrero not obtaining

the relief to which she was entitled under Rules 7.6.14(16) and (17). The




                                         24
Commission exceeded its authority, and the trial court’s judgment is proper under

TEX. LOC. GOV’T CODE § 158.0121.

IV.    Mrs. Guerrero was Denied Due Process.
       The trial court’s judgment is also proper based on the Commission’s

violation of Mrs. Guerrero’s procedural due process rights. By “overturning” Mrs.

Guerrero’s improper demotion, but failing to follow its own rules by either

reinstating Mrs. Guerrero to her former position or reinstating her to her full salary

as though she had been reinstated, the Commission violated Mrs. Guerrero’s due

process rights. See U.S. CONST. amend XIV, § 1 (“No State shall . . . deprive any

person of life, liberty or property, without due process of law. . . .”); TEX. CONST.

art. I, § 19.

       In analyzing a claim of deprivation of procedural due process, courts must

determine (1) whether the plaintiff had a liberty or property interest entitled to

procedural due process; and (2) if so, what process is due. See Logan v.

Zimmerman Brush Co., 455 U.S. 422, 428 (1982); University of Tex. Med. Sch. v.

Than, 901 S.W.2d 926, 929 (Tex. 1995). The expectation in continued employment

except for just cause for a civil service employee is a property interest of which

employees may not be deprived without due process. County of Dallas v. Wiland,

216 S.W.3d 344, 354 (Tex. 2007); Bexar County Sheriff's Civil Serv. Comm'n v.

Davis, 802 S.W.2d 659, 661 & n. 2 (Tex. 1990). Whether due process was afforded


                                         25
to the plaintiff is determined by examining the Rules of the County Civil Service

Commission. See Tarrant County v. Van Sickle, 98 S.W.3d 358, 366 (Tex. App.—

Fort Worth 2003, pet. denied) (“[b]ecause the Tarrant County Civil Service

Commission can establish its own civil service rules under chapter 158 of the local

government code, only by examining those rules can we determine whether Van

Sickle did not receive the “due process” afforded him under the rules when he was

terminated from his employment. . . .”).

      As discussed supra, Rule 7.6.14(16) permits the Commission to take one of

three actions: (1) deny the appeal, (2) impose a lesser penalty or (3) overturn the

disciplinary action. The Commission failed to take any of the three actions.

Although it purported to “overturn” the demotion, it failed to reinstate Mrs.

Guerrero and kept her in her demoted position. As such, the Commission failed to

afford her the due process provided in Rules 7.6.14(16), (17), and (18).

      Moreover, Mrs. Guerrero’s due process rights were violated by the County’s

elimination of her position to deal with the “problem” of Mrs. Guerrero’s appeal,

together with the Commission’s unsubstantiated position that the elimination

precluded the Commission from entering the relief required by its own rules. These

actions thereby deprived Mrs. Guerrero of the definitive relief to which she was

entitled under Rule 7.6.14(16). See Associated Builders & Contractors of Texas

Gulf Coast, Inc. v. U.S. Dep't of Energy, 451 F. Supp. 281, 286 (S.D. Tex. 1978)


                                           26
(party had “a constitutional right to have its government follow its own rules. If

[the party] is denied its right to its administrative appeal, it has . . . been deprived

of procedural due process which is in itself irreparable injury.”); see also Smith v.

Dep't of Health & Human Res., 432 So.2d 997, 999 (La. Ct. App. 1983) (appeal

could not be denied based on failure of the civil service commission to provide

adequate notice as violation of due process). The due process violation is not

excused by the County’s need to make budgetary changes, as the uncontroverted

evidence is that the only reason Mrs. Guerrero’s position was eliminated was to

deal with the problem of her appeal, and not as a routine budget measure (Agreed

Supp. CR. TR-0185-87, TR-0190-92).

V.    The Commission’s Decisions were Made Through Unlawful Procedure.
      The trial court also correctly determined that the Commission’s violation of

its own rules, as described supra, was “made through unlawful procedure.” TEX.

LOC. GOV’T CODE § 158.0121(c). Moreover, the County’s purposeful elimination

of Mrs. Guerrero’s position to deprive her from relief, together with the

Commission’s unsubstantiated position that the elimination precluded the

Commission from entering the relief required by its own rules, constitutes an

unlawful procedure by the County and Commission.

      The Texas Supreme Court, albeit in a different context, has held unlawful

the same conduct as the combined efforts of the County and Commission in this


                                          27
case. See City of San Antonio v. Wallace, 161 Tex. 41, 45-46, 338 S.W.2d 153, 156

(1960). In Wallace, the Court set aside a San Antonio ordinance designed to

discharge employees by eliminating their civil service positions. Wallace, 338

S.W.2d at 154-55. In finding the City’s actions improper, the Court explained:

            There is a real and fundamental distinction between the
            lawful abolition of an unnecessary position and the
            discharge of a faithful employee in violation of the rights
            secured to him by statute; and the latter action can neither
            be concealed nor protected by a pretense that it was in the
            exercise of the former right. If the attempt to abolish an
            office be merely colorable and the real objective be to
            legislate one out of office or a civil service position, the
            courts are not bound by the apparent form of the action
            but will disregard the pretense and be governed by the
            substance of the action. Tenure of office and civil service
            laws cannot be evaded by a sham or pretended
            abolishment of position.

Id. at 156 (emphasis added).

      Wallace speaks directly to this case. The County’s and Commission’s

combined efforts to evade the Commission’s Rules and Civil Service Laws by a

sham elimination of positions is unlawful. The trial court properly recognized that

the undisputed evidence shows that elimination of Mrs. Guerrero’s position, and

the Commission’s refusal to enter appropriate relief, was nothing but a pretext to

deprive her of required relief. See Wallace, 338 S.W.2d at 159.




                                        28
      Accordingly, the trial court’s judgment is supported by the additional ground

that the Commission’s findings, inferences, conclusions, or decisions were the

result of an unlawful procedure. TEX. LOC. GOV’T CODE § 158.0121(c).

VI.   The Commission’s Refusal to Reinstate Mrs. Guerrero is Not Supported
      by Substantial Evidence.
      The trial court’s judgment is also proper because the Commission’s decision

is not supported by substantial evidence. “Under the substantial evidence standard,

“[t]he issue for the reviewing court is not whether the agency's decision was

correct, but only whether the record demonstrates some reasonable basis for the

agency's action.” Mireles, 9 S.W.3d at 131.

      The record demonstrates no reasonable basis for the Commission

“overturning” Mrs. Guerrero’s demotion, while expressly keeping her in her

demoted position at her demoted pay. The Commission’s decision is the epitome of

an unreasonable and arbitrary act made without regard to facts or law. Santiago,

2012 WL 3776484, at *1.

      Appellant’s failure to direct this Court to a single page in the Commission’s

record exposes the absence of any substance to its argument. See Esparza, 2003

WL 23005015, at *2 (reviewing court considers the Commission record for

substantial evidence). As discussed supra, the Commission’s argument that it was

not required to make one of the enumerated decisions in Rule 7.6.14 flies in the

face of the plain language of the rule, statutory construction, and Texas case law.

                                        29
Additionally, as discussed, the Commission’s position that it could not reinstate

Mrs. Guerrero is devoid of any legal merit. Neither the Commission’s rules nor the

Texas Civil Service laws purport to limit the Commission’s authority to reinstate

when the County has, during the pendency on an appeal, eliminated a position. For

this reason, Mrs. Guerrero’s acknowledgement that her position was abolished, and

her agreement with counsel that only the Commissioner’s Court can create or

eliminate positions,1 is no evidence, much less substantial evidence, supporting the

Commission’s decision to keep Mrs. Guerrero in her demoted position.

Irrespective of the Commissioner’s Court’s authority, the Commission’s Rules and

the Texas Civil Service laws authorize the overturning of demotions and

reinstatement, and make no qualification for only those cases in which the position

has not been eliminated.

       The only explanation that is supported by the evidence is that the County

and the Commission worked together to take away Mrs. Guerrero’s rights to an

appeal and relief as provided for in Rule 7.6.14 and Section 158.012 of the Texas

Local Government Code (Agreed Supp. CR TR-0185-87, 190-92).

       The substantial evidence unquestionably supports the Commission’s finding

that Mrs. Guerrero’s demotion was improper and should have actually been
1
  Mrs. Guerrero has no expertise concerning the power of the Commissioners Court, and thus her
statement that it could not create a position has no evidentiary value. Even if the statement
carried any weight, it does not alter the analysis that the Commission’s rules and the civil service
laws authorize reinstatement without regard to whether a position has been eliminated by the
County or Commissioner’s Court.
                                                30
overturned by reinstatement to her prior employment classification of E-11 (See

generally Supp. CR TR-0001-0480). It is undisputed Mrs. Guerrero was

wrongfully demoted (CR 153-54) (Commission’s order “overturning” demotion);

(CR 513-14) (unchallenged finding of fact that “[t]he Commission determined that

Plaintiff’s demotion was without merit”). The Commission’s Rules required it to

actually overturn the demotion, not simply to say it was doing so and then to keep

her in her demoted position (Agreed Supp. CR TR 470). The Commission should

have ordered her reinstated, and if it later learned that she could not be returned to

her position, then it was bound to follow Rule 7.6.14(17) and award her full salary

as though she had been reinstated as ordered (Id.).

      The Commission’s failure to do so, and its insistence that it can do nothing

in the face of the County eliminating her position, where the position was

specifically eliminated to facilitate this argument, amounts to an unreasonable and

arbitrary act by the Commission. As such, the Commission’s decision is not

supported by substantial evidence.

VII. Public Policy Weighs Strongly in Favor of the Trial Court’s Judgment.
      The trial court’s judgment ordering Mrs. Guerrero reinstated to her E-11

classification and salary is in keeping with the rationale behind Texas Civil Service

Laws and the Commission’s rules promulgated thereunder. Specifically, the

Legislature enacted the civil service legislation to help counties “attract and keep


                                         31
capable officers and employees.” Office of the Attorney General Opinion No. JC-

0529 (July 9, 2002) (citing Tex. House Interim Co. Unity Gov’t Study Comm.,

Report to the 62nd Legislature 13 (Jan. 11, 1971)). Without the certainty afforded

by these laws, “[t]he prospect of losing a job if the department head loses an

election inevitably discourages prospective employees.” Id.

       “[T]he public policy of the state as evidenced by its civil service law . . . is

to place municipal employees for the most part upon a merit system and free them

from political control.” City of Wichita Falls v. Harris, 532 S.W.2d 653, 658 (Tex.

Civ. App.—Fort Worth 1976, writ ref’d n.r.e.) (quoting City of San Antonio v.

Wallace, 161 Tex. 41, 338 S.W.2d 153 (1960)). Critically, this public policy

“cannot be circumvented and the court[s] will scrutinize carefully any attempt to

do so.” Id.2

       Obviously, allowing the County to work with the Commission to deny an

employee relief by eliminating her position during her appeal cuts against these

rationales. So does allowing the Commission to disregard its rules concerning

appeals of employment disciplinary actions. If the County can avoid meaningful


2
  Consistent with this public policy, the Commission’s rules reflect a commitment to ensure
County employment decisions are removed from the political process and the whims of newly
elected department heads. Rule 7.6.14(17) provides that “[s]hould the …department refuse to
reinstate the employee as ordered by the Commission, the employee shall be entitled to their full
salary just as though they had been reinstated as ordered.” (Agreed Supp. CR TR-0354, 468-
470). The former head of the Commission for over thirty years testified that this language was
added in the 1970’s when elected officials and department heads were refusing to reinstate
employees, and thus ignoring the Commission’s orders of reinstatement (Id. at TR-0227-0228).
                                               32
appeals of disciplinary matters by eliminating positions after-the-fact, then

Commission Rule 7.6.14(16) is a ruse, and county employees are subject to the

whims of changing department heads without recourse. This, in turn, serves to

discourage prospective employees from County employment.

         Meanwhile, the Commission’s supposed concern that Mrs. Guerrero is

asking it to micromanage county budget issues is, at best, ill-founded. Mrs.

Guerrero’s position was eliminated to address her appeal, and not any financial

issue with the budget (Agreed Supp. CR TR-0186) (testimony from the Budget

Director that “[i]f you’re asking whether it was an efficiency issue, whether it was

a cost saving issue, no”; it was simply because she had become a problem). In any

case, Commission decisions on County disciplinary matters inevitably impact the

County’s budget. This is no excuse for the Commission’s refusal to follow its own

rules.

VIII. The Commission’s Decision to Keep Mrs. Guerrero in Her Demoted
      Position Was Not a Victory for Mrs. Guerrero.

         Let there be no mistake: the Commissioner’s order keeping Mrs. Guerrero in

her demoted position was not a victory for her. After nearly twenty years of service

with Bexar County, Mrs. Guerrero was wrongfully demoted six classification

grades from her position of IT Services Manager. The Commission agreed that the

demotion was improper, yet refused to reinstate her. The verbiage in the order that

her demotion is “overturned” is of no consequence to her.
                                         33
      The fact that the Commission brazenly suggests that Mrs. Guerrero should

be thankful for any relief because she would have been laid off anyways had she

not been demoted. But, as the undisputed evidence shows, Mrs. Guerrero’s

position was only eliminated so that the issues with her and the County would go

away. Thus, keeping Mrs. Guerrero in her demoted position after the Commission

found her demotion improper was anything but a favor.

   IX.   The Commission’s Hyper-Technical Parsing of Conclusion of Law
         Number Four Should be Rejected.
      The trial court entered eight conclusions of law (CR 514-15). In the first

three, the trial court concluded the Commission violated Mrs. Guerrero’s due

process rights, exceeded its own authority by violating its own rules, and made its

ruling through an unlawful procedure (Id. at 513). Each of these conclusions

supports the judgment on its own. See Rice v. Kuhn, No. 04-03-00088-CV, 2005

WL 418202, at *2 (Tex. App.—San Antonio 2005, pet. denied) (mem. op.) (error

in conclusions of law “need not prompt a reversal if the judgment can be sustained

on any legal theory supported by the evidence.”).

      Rather than address these conclusions, the Commission only attacks

conclusion at law number four, which provides:

            The Commission’s ruling was not reasonably supported
            by substantial evidence in that substantial evidence does
            not support a finding that the Plaintiff should be
            demoted, that Plaintiff’s former position should have


                                        34
             deleted, and that Plaintiff should not have been reinstated
             as provided in Section 158.0121(2)(E).

(CR 514-15).
      This conclusion is correct, and the Commission’s argument that it is in error

depends on a hyper-technical reading of portions of it in isolation. The trial court

correctly stated that the “substantial evidence does not support a finding that the

Plaintiff should be demoted[.]” (Id.). This is not an indication that the Commission

was incorrect in finding Mrs. Guerrero should not be demoted. To the contrary, the

court indicated that it was against the substantial evidence to find that Mrs.

Guerrero was improperly demoted, and then not to reinstate her. This is consistent

with the court’s order finding in favor of Mrs. Guerrero and reinstating her (CR

511-12).

      The Commission also attacks the phrase that it was against the substantial

evidence that “Plaintiff should not have been reinstated as provided in Section

158.0121(2)(E).” There is no error in this statement. Section 158.0121(2)(E)

discusses that a commission’s decision may be reversed when it is “not reasonably

supported by substantial evidence.” The citation at the end was not referencing the

last phrase discussing reinstatement, but was supporting the overall conclusion of

the lack of substantial evidence.

      The Commission challenges the language that it was against the substantial

evidence that Plaintiff was not reinstated. This conclusion in correct. The

                                         35
Commission specifically ordered Mrs. Guerrero to remain in her demoted position,

and thus necessarily determined, improperly, that she should not be reinstated.

      The Commission also attacks the phrase that the substantial evidence did not

support a finding that “the Plaintiff’s former position should have [been]

deleted[.]” (CR 515). Although the Commission argues that this determination was

outside the province of the trial court, it was the Commission that advanced that

Mrs. Guerrero’s position was eliminated, and that this was the basis for the

Commission’s decision not to reinstate her. Consequently, the trial court correctly

found that the evidence did not support that the position should have been deleted.

Further, regardless of the propriety of the elimination of Mrs. Guerrero’s position,

the Commission was vested with authority to overrule the demotion by reinstating

her (Agreed Supp. CR TR-0470). Accordingly, the trial court’s judgment was

proper.

      To the extent any portion of these conclusions can be construed as

inaccurate, immaterial, or erroneous, they do not affect the correct judgment. “If

the reviewing court determines a conclusion of law is erroneous but the trial court

rendered the proper judgment, the erroneous conclusion of law does not require

reversal.” Hanford-Southport, LLC v. City of San Antonio ex rel. San Antonio

Water Sys., 387 S.W.3d 849, 853 (Tex. App.—San Antonio 2012, pet. denied)

(quoting BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794


                                         36
(Tex.2002)). As clearly demonstrated supra, the trial court correctly set aside the

Commission’s order keeping Mrs. Guerrero in her demoted position.

                                CONCLUSION & PRAYER
       The trial court correctly recognized that the Commission in this case took

unreasonable, arbitrary, and capricious measures to keep Mrs. Guerrero in her

demoted positions despite recognizing it was improper.

       It is undisputed that Mrs. Guerrero was wrongfully demoted. Further, the

undisputed evidence is that the County eliminated her position to deal with the

“problem” of her appeal. The Commission used this as the basis for denying Mrs.

Guerrero her right to reinstatement in violation of its own rules.

       If the Commission is correct, then it can avoid a civil service appeal in every

case by eliminating the position after-the-fact, and then taking the position it has in

this case that its hands are tied. This is not the intent of the civil service legislation.

       The trial court’s judgment should be upheld because the Commission (1)

exceeded its authority by failing to follow its own rules, (2) violated Mr.

Guerrero’s due process rights by failing to follow its own rules and by working

together with the County to deny her a meaningful appeal, and by (3) denying Mrs.

Guerrero the relief to which she was entitled through an improper procedure.

Because she makes $22,000 less per year, enjoys fewer responsibilities, and

answers to people whom she previously supervised, Mrs. Guerrero’s rights have


                                            37
clearly been substantially prejudiced by the Commission’s actions. Additionally,

the Commission’s decision to purportedly “overturn” Mrs. Guerrero’s demotion,

but then keep Mrs. Guerrero in her demoted position, is contrary to the substantial

evidence.

      WHEREFORE, premises considered, Appellee, Carmella Guerrero, prays

that this Court affirm the judgment of the trial court. Appellee further prays for

costs and for such other and further relief, in law and in equity, to which she may

be justly entitled to receive.


                                      Respectfully submitted,


                                      /s/ Robert W. Clore_______
                                      Robert W. Clore
                                      Clore Appeals & Litigation Support
                                      State Bar No. 24012436
                                      15481 South Padre Island Drive
                                      Suite 101
                                      Corpus Christi, Texas 78418
                                      Telephone: (361) 558-3527
                                      Facsimile: (361) 949-0908
                                      rclore@robclorelaw.com

                                      Orlando Lopez
                                      Lopez Scott, L.L.C.
                                      State Bar No. 2401096
                                      3703 N. St. Mary’s Street
                                      Suite 200
                                      San Antonio, Texas 78212
                                      Telephone: (210) 472-2100
                                      Telecopier: (210) 472-2101
                                      olopez@lopezscott.com
                                        38
                              ATTORNEYS FOR APPELLEE, CARMELLA
                              GUERRERO


                        CERTIFICATE OF SERVICE

      This is to certify that the above and foregoing instrument has been
forwarded to counsel as indicated below on this the 4th day of December, 2015.


    Clarkson F. Brown, Attorney for the Bexar County Civil Service
Commission, cbrown@bexar.org.



      VIA E-FILING

                                           /s/ Robert W. Clore_______
                                           Robert W. Clore




                           Rule 9.4(i) Certification

       In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify
that the number of words in this brief, excluding those matters listed in Rule
9.4(i)(1), is 8,597.



                                           /s/ Robert W. Clore
                                            Robert W. Clore




                                      39
