Opinion
No. 04-02-00251-CV
Delivered and Filed: December 29, 2004.
Appeal from the 166th Judicial District Court, Bexar County, Texas, Trial Court No. 2000-CI-11950, Honorable Janet Littlejohn, Judge Presiding.
Reversed and Rendered.
Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice and Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
This appeal is on remand from the Texas Supreme Court. On original submission, we reversed the trial court's judgment which overturned the Bexar County Sheriff's Civil Service Commission's decision upholding the termination of Gerald Sanchez. Bexar County Sheriff's Dept. v. Sanchez, 131 S.W.3d 1 (Tex.App. 2003), rev'd, 134 S.W.3d 202 (Tex. 2004). The basis for our holding was Sanchez's failure to introduce the record of the Commission's proceedings into evidence at trial. Sanchez, 131 S.W.3d at 1. We noted that a second issue was presented by Bexar County challenging the sufficiency of the evidence to support the trial court's decision; however, we did not reach that issue. See id. at 2. The Texas Supreme Court reversed our judgment because the Commission's record was relied on as evidence by the parties and the trial court even though it was not formally introduced into evidence. Sanchez, 134 S.W.3d at 202-204. The Texas Supreme Court remanded the cause to our court with instructions to file the Commission's record and consider the merits of the County's appeal. Id. at 204. The sole remaining issue on appeal is whether the trial court erred in reversing the Commission's decision because it was supported by substantial evidence. Because we conclude that the Commission's decision was supported by substantial evidence, we reverse the trial court's judgment and render judgment affirming the Commission's decision.
Substantial Evidence
A decision by a civil service commission is subject to the "substantial evidence rule." Tex. Loc. Gov't Code Ann. § 158.037(b) (Vernon 1999). Under this standard, the petitioner has the burden to show that the commission's decision was not based on substantial evidence. Arreaga v. Bexar County Sheriff's Dept., 90 S.W.3d 899, 901 (Tex.App. 2002, no pet.); Bexar County Civil Serv. Comm'n v. Casals, 63 S.W.3d 57, 59 (Tex.App. 2001, no pet.). Substantial evidence is more than a mere scintilla, but less than a preponderance of the evidence. Arreaga, 90 S.W.3d at 901; Casals, 63 S.W.3d at 59. Thus, the evidence supporting the commission's order may preponderate against the commission's decision and still amount to substantial evidence. Arreaga, 90 S.W.3d at 901; Casals, 63 S.W.3d at 59. The reviewing court, whether the trial 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 the commission's decision was made without regard to the facts or the law and as such, was unreasonable, arbitrary, or capricious. Arreaga, 90 S.W.3d at 901; Casals, 63 S.W.3d at 59-60. A commission's order may not be set aside merely because evidence was conflicting or disputed. City of Dallas v. Hamilton, 132 S.W.3d 632, 637 (Tex.App. 2004, pet. denied). The resolution of factual conflicts and ambiguities is the province of the commission, and the aim of the substantial evidence rule is to protect that function. Dallas County Civil Service Comm'n v. Warren, 988 S.W.2d 864, 869 (Tex.App. 1999, no pet.). Substantial evidence deals only with the reasonableness of the commission's order not with its correctness. Hamilton, 132 S.W.3d at 637; Warren, 988 S.W.2d at 869-70.
Sanchez was terminated for failing to be "completely honest in [his] testimony regarding the sexual assault on an inmate." The inmate complained that Sanchez forced him to perform oral sex on September 4, 1999. Based on the log books, the incident must have occurred sometime after Sanchez began his shift at 6:45 a.m. and the time the inmate was taken to the bond office at approximately 8:30 a.m. Sanchez left work early at approximately 9:20 a.m. on September 4, 1999, complaining of a kidney stone problem. The inmate first made his complaint to a mental health counselor the following day and then related the complaint to another officer.
At the Commission hearing, Sanchez contended that the inmate falsely accused him because: (1) the inmate was unhappy being located in the medical unit rather than the "homosexual unit;" (2) the inmate's location and classification required that he be in his locked cell for twenty-three hours a day; and (3) Sanchez told the inmate that there was not time to immediately speak to the bond department about a PR bond. Sanchez admitted that the reasons he gave for the inmate's motive in accusing him were not included in his written report or the investigation report; however, Sanchez stated that he told the investigating officer, Officer Skinner, his opinion regarding the inmate's motive. Officer Skinner testified that Sanchez never provided him with information regarding the inmate's possible motive.
Sanchez testified that he had a kidney stone problem, and he would not have engaged in the alleged sexual conduct because he was experiencing pain and bleeding symptoms. Sanchez did not mention these symptoms to Officer Skinner or in either of the two reports he prepared relating to the incident; however, Sanchez stated that he told his supervisor when he asked to leave early, and Sanchez's supervisor, Officer Gabriel, referred to the bleeding symptoms in his investigative report. Sanchez did not see a doctor that day or the day after about his symptoms. Officer Gabriel testified that Sanchez told him he needed to leave early to go to the doctor. Officer Gabriel was not aware that Sanchez had not gone to the doctor. The only medical records produced showed that Sanchez had a kidney stone problem but was released to full duty in May of 1999.
Officer Skinner testified that the inmate's story was consistent, while Sanchez was nervous during questioning and his responses were vague. In addition, a second inmate stated that Sanchez engaged in similar acts with him. The second inmate did not complain because Sanchez would do favors for the inmate and the inmate feared retaliation. Sanchez's work records show he was not working in the unit in which the second inmate was housed at the time the second inmate stated the incidents occurred. Both inmates who accused Sanchez were cross-dressers. Officer Casales, who was on duty before Officer Sanchez's arrival on the day of the incident, testified that the inmate who made the complaint was still wearing make-up when he was placed in his cell. Sanchez contended that when the inmate who made the complaint was reassigned within the jail, he discussed his complaint with the second inmate who then made up his own accusations. Sanchez contended that the second inmate was not credible because he previously had told Sanchez that two other officers had engaged in sexual conduct with him.
In addition to raising his health and the timing of the incident in defense of the charges, Sanchez also challenged Officer Skinner with regard to the sufficiency of his investigation and his failure to question certain witnesses and obtain additional information. Officer Skinner admitted that he never interviewed the mental health counselor about the notation in her report finding possible manipulation on behalf of the inmate.
Sanchez's supervisor, Officer Gabriel, conducted a preliminary investigation into the complaint and believed the inmate's accusation was fabricated. Officer Gabriel spoke with three inmates who were in the day room and who would have observed Sanchez go upstairs to the inmate's cell. The inmates stated that they did not see Sanchez go upstairs. Officer Gabriel stated that the inmate who made the complaint could not provide him with Sanchez's name; however, when Officer Gabriel was interviewing the inmate a few days after the incident, Sanchez walked by the office, and the inmate identified him as the officer involved. In response to questions from the commissioners, Officer Gabriel stated that the inmate appeared confident and clear in relating the details of the incident.
The evidence presented at the Commission hearing was conflicting; however, the resolution of the factual conflicts and ambiguities was within the province of the Commission. Warren, 988 S.W.2d at 869. Having reviewed the record, we conclude that substantial evidence existed to support the Commission's decision. Accordingly, we reverse the trial court's judgment and render judgment affirming the Commission's decision.
Costs
In our original opinion, we addressed the County's claim that the trial court abused its discretion by ordering the Commission to bear the entire cost of preparing the record and not ordering Sanchez to reimburse the Commission. Sanchez, 131 S.W.3d at 2-3. For similar reasons previously stated, we again sustain the County's issue in regard to costs.
The Local Government Code provides that "[t]he commission may require a party who appeals the decision under § 158.012 to pay one-half the cost of preparation of the original or a certified copy of the record of the commission proceeding that is required to be sent to the reviewing court." Tex. Loc. Gov't Code Ann. § 158.0123(a) (Vernon 1997). The district court's decision to allocate costs is reviewed for an abuse of discretion. See State v. Castle Hills Forest, Inc., 842 S.W.2d 370, 372 (Tex.App. 1992, writ denied).
Given our determination that the Commission's decision was supported by substantial evidence, we believe the trial court abused its discretion in failing to order Sanchez to pay one-half the costs of preparing the Commission's record. Id. Therefore, the County may recover $995.00 from Sanchez for his one-half of the cost of preparing the Commission's record.
Conclusion
The trial court's judgment is reversed and judgment is rendered affirming the Commission's decision. Sanchez is ordered to pay the County $995.00.