Opinion
No. 10-04-00231-CV
Opinion delivered and filed October 19, 2005. Concurring opinion delivered and filed October 26, 2005.
Appeal from the 9th District Court, Montgomery County, Texas, Trial Court No. 02-10-07222 Cv.
Reversed and remanded.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Special Note by Chief Justice GRAY)
MEMORANDUM OPINION
David Park is a lieutenant in the Montgomery County Sheriff's Office. He sued Montgomery County under the Texas Whistleblower Act, alleging that he had suffered an adverse employment action as a result of his report of complaints of sexual harassment by Montgomery County Commissioner Ed Rinehart. Montgomery County answered and filed a plea to the jurisdiction and a motion for summary judgment. The trial court granted Montgomery County's summary judgment motion. Park appeals from that judgment. Finding that the court erred in granting the summary judgment motion, we will reverse and remand.
BACKGROUND
Lieutenant Park reported that he attended a meeting with six to eight male employees or agents of the county. The topic of the meeting was office renovations. Park reported that Commissioner Rinehart commented that "we need to put a divider in there because he may want to do [Park's secretary] on her desk." Park's secretary was not present at the meeting. Park interviewed his secretary and another female employee, who reported having been sexually harassed by the Commissioner. Park reported what he believed to be unlawful conduct to the Sheriff and to the personnel department and county attorney.
Incident to his employment at the Sheriff's Office, Park was appointed security coordinator for the Montgomery County Lone Star Convention Center. The facility required that all events be accompanied by uniformed law enforcement officers from the Sheriff's Office. Park was responsible for arranging for off-duty officers to work security. Some time after Park's report regarding Commissioner Rinehart's alleged conduct, the director of the convention center sent a letter to the Sheriff's Office, advising that the security coordination would be handled by the Constable's Office instead of the Sheriff's Department. Later, the director made another change, deciding to alternate the center's security coordination on a monthly basis between the Sheriff's Office and the Constable's Office.
Standard of Review
We review the decision to grant or deny a summary-judgment motion de novo. See Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex.App.-Waco 2000, pet. denied). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex.App.-Waco 2001, pet. denied). If the movant for summary judgment is a defendant, then the movant must negate at least one of the elements of the non-movant's cause of action or conclusively establish each element of an affirmative defense. Clifton v. Hopkins, 107 S.W.3d 755, 757 (Tex.App.-Waco 2003, pet. denied).
The reviewing court must accept all evidence favorable to the non-movant as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex. 1985); Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in his favor. American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413.
The trial court's order does not specify the grounds upon which summary judgment was granted. When a trial court's order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. State Farm Fire Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Adverse Personnel Action
The Texas Whistleblower Act prohibits a state or local government entity from suspending or terminating the employment of, or taking other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority. TEX. GOV'T CODE ANN. § 554.002(a) (Vernon 2004). Montgomery County argues that there is no evidence that Park suffered an adverse personnel action, an essential element of a claim under the Act. "Personnel action" means an action that affects a public employee's compensation, promotion, demotion, transfer, work assignment, or performance evaluation. Id. § 554.001(3) (Vernon 2004).
According to the affidavits of Park and the Sheriff, Park's employment as the security coordinator was incidental to his employment at the Sheriff's Office. He received no extra compensation for this "extra job," except when he assigned himself to work events. Montgomery County argues that because Park received no extra compensation from the County, and because his security coordination tasks did not take up much of his time, he did not suffer an adverse employment action. However, Park alleges in pleadings and affidavits that the County's action in transferring responsibility for coordinating security to the Constable's Office deprived him of his position as security coordinator and deprived him of the opportunity to assign himself to security duty for which he received compensation. Accepting Park's evidence as true, he raised a genuine issue of material fact whether the County's actions adversely affected his work assignment and compensation.
Employing Governmental Entity
Montgomery County argues that the alleged violation of law was not committed by "the employing governmental entity or public employee," and thus Park's report of the violation is not protected by the Act. Specifically, the County argues that Commissioner Rinehart is not the employing governmental entity or a public employee. "Public employee" means an employee or appointed officer other than an independent contractor who is paid to perform services for a state or local governmental entity. Id. § 554.001(4) (Vernon 2004). The County argues that Rinehart is an independently elected official and the County is prohibited from interfering with or controlling his actions. However, the county as a whole constitutes the governmental entity, and an elected official may be part of the county's government when he is acting in his official capacity. See Tarrant County v. Bivins, 936 S.W.2d 419, 422 (holding that the county can be held liable under the Whistleblower Act for the conduct of an elected sheriff acting in his official capacity); Wichita County v. Hart, 892 S.W.2d 912, 929 (Tex.App.-Austin 1994), rev'd on other grounds, 917 S.W.2d 779 (Tex. 1996). The County concedes that Commissioner Rinehart is paid for his service as a commissioner and does not argue that Rinehart's alleged actions were outside of his official capacity. Park has pled and raised a genuine issue of fact whether a violation of law was committed by the employing governmental entity or another public employee.
Reporting the Violation of Law
Montgomery County argues that Park did not report "in good faith" a violation of law to an "appropriate law enforcement authority." Park stated in his affidavit that he believed that Rinehart's conduct could constitute the criminal offense of "Official Oppression" under section 39.03 of the Texas Penal Code. The County argues that we should disregard Park's statement in his affidavit as a "sham fact issue" because it contradicts his deposition testimony. The County points to deposition testimony in which Park agrees that in reporting the Commissioner's conduct he was not acting as an investigating law enforcement officer but as a supervisor and a county employee. The County also cites the following question and answer during the deposition:
Q: Now, are you saying that anything that Commissioner Rinehart did with respect to the two women would have, in your view as a peace officer, constituted official oppression?
A: I'm not saying anything to them, no, sir. Would official oppression — no, sir.
We do not agree with the County that Park's deposition testimony demonstrates that he did not believe that his reporting of Rinehart's alleged actions was a report of the crime of official oppression so as to render his affidavit statements a "sham." Park has pled and raised a genuine issue of fact whether he reported in good faith a violation of law to an appropriate law enforcement agency.
CONCLUSION
Montgomery County is not entitled to summary judgment on any of the grounds advanced. The summary judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.
SPECIAL NOTE
TOM GRAY, Chief Justice
At some point the Supreme Court or the Court of Criminal Appeals will have to decide whether opinions and judgments voted on by only two justices on this Court are proper. See Krumnow v. Krumnow, No. 10-04-00143-CV, 2005 Tex. App. LEXIS 7027, ___ S.W.3d ___ (Tex.App.-Waco August 24, 2005, no pet. h.) (Special note by Chief Justice Gray issued August 31, 2005).
This is an important case to which I have been unable to devote the time and attention I believe it deserves before I can vote. Thus, by rushing its release, the majority deprives me of the opportunity to spend the time I believe is necessary to review and vote on the result of the case. They deprive me of the very opportunity they have on every one of the opinions that I draft for their review. They have all the time they need, not because I give it, though I would do so freely. They have the time because it is the appropriate deferral to their discretion as a justice on this Court. I also believe the full review by three judges is necessary for the proper functioning of our appellate court system.
By the procedure they have chosen to use, they also deprive the litigants of the considered vote of all members of the panel to which this case has been assigned. I think the litigants are entitled to have all the members of the panel to which the case is assigned consider and vote on the result of the appeal. Indeed, by issuing the opinion in this manner, the majority may be suppressing a dissenting opinion, the issuance of which would then give the Texas Supreme Court jurisdiction to review the majority's opinion. TEX. GOV'T CODE ANN. § 22.001(a)(1) (Vernon 2004); see also TEX. R. APP. P. 56.1(a)(1).
The release of the opinion in this case should await the time with patience until I have had the time to review it, and my vote returned. Accordingly, at this time I can neither vote to affirm nor vote to reverse the judgment of the trial court.
CONCURRING OPINION
Chief Justice Gray implies, without specifically saying, that our opinion is invalid because it was approved by only two justices, but he has opined that Appellate Rule 41.1(a) requires that all three justices of a three-justice court of appeals actually participate in the decision of a case submitted without argument. See TEX. R. APP. P. 41.1(a). Substantial authority refutes his interpretation.
A dissent to an order in Texas Parks and Wildlife v. E.E. Lowrey Realty, Ltd. says that an opinion issued by two justices is "a direct violation of Rule of Appellate Procedure 44.1(a)." Texas Parks Wildlife Dept. v. E.E. Lowrey Realty, Ltd., No. 10-02-00317-CV, 2004 WL 2481000, *1 (Tex.App.-Waco Nov. 3, 2004) (order) (Gray, C.J., dissenting) (not designated for publication).
First, it appears from the express wording of the Rule that it does not apply to three-justice courts. It begins "Unless a court of appeals with more than three justices. . . ." Id.
Because there are four other three-justice courts (Texarkana, El Paso, Tyler, and Eastland), this issue could arise in them as well.
Second, as I noted in an earlier case, requiring all three justices to participate in such a decision is not a reasonable interpretation of the Rule and is contrary to the Texas Constitution and the Texas Government Code. See Texas Parks Wildlife Dept. v. E.E. Lowrey Realty, Ltd., No. 10-02-00317-CV, 2004 WL 2481000, at *1-2 (Tex.App.-Waco Nov. 10, 2004, pet. filed) (Vance, J., concurring). Article V, section 6 of the Texas Constitution provides: "The concurrence of a majority of the judges sitting in a section [panel] is necessary to decide a case." TEX. CONST. art. V, § 6. Section 22.222(c) of the Texas Government Code provides: "A majority of a panel constitutes a quorum for the transaction of business, and the concurrence of a majority of a panel is necessary for a decision." TEX. GOVT. CODE ANN. § 22.222(c) (Vernon 2004). Court-adopted rules cannot be inconsistent with the constitution. See Starnes v. Holloway, 779 S.W.2d 86, 96 (Tex.App.-Dallas 1989, writ denied). "Of course, a statute controls over a procedural rule." In re Chu, 134 S.W.3d 459, 466 (Tex.App.-Waco 2004, orig. proceeding).
Third, Chief Justice Gray's interpretation is contrary to a prior decision of the Texas Supreme Court. In Nalle v. City of Austin, 85 Tex. 520, 22 S.W. 668 (1893), the Supreme Court observed:
Hence, if it should be held that a full bench is necessary to make a quorum, the result would be, that in the event of the absence of one of the judges by reason of sickness or from any other cause, the business of the court would remain in suspense until the absent member should be present. Such a rule would be fraught with mischief, and would tend to obstruct the accomplishment of the very purpose for which the Courts of Civil Appeals were created.
Id. at 671. The Court proceeded, "if two be a quorum, and two be qualified and able to agree, no additional judge is requisite to a decision of the case, although the third member of the court be recused." Id. And finally, "[w]e conclude, therefore, that the disqualification of Judge Key did not make requisite the appointment of a special judge, and that the court composed of his two associates constituted a lawful tribunal for the trial and determination of the case." Id. at 672.
More recent precedent also rejects such an interpretation. See Hoyt v. Hoyt, 351 S.W.2d 111, 114 (Tex.Civ.App.-Dallas 1961, writ dism'd w.o.j.). After noting that Associate Justice Williams chose not to participate in the decision because he had been the trial judge (although not legally disqualified), the majority in Hoyt said that even the disqualification of one member does not prevent the other members from lawfully proceeding. Id. (citing Nalle). In Dickinson State Bank v. Ogden, a judgment was held valid when one member of a panel had been elected to the Supreme Court after the case was submitted on oral argument and the case was then decided by the remaining panel members. Dickinson State Bank v. Ogden, 624 S.W.2d 214, 222 (Tex.Civ.App.-Houston [1st Dist.] 1981), rev'd on other grounds, 662 S.W.2d 330 (Tex. 1984) (on rehearing).
Furthermore, such an interpretation creates an absurd result by giving one member of the court a virtual veto over any opinion in an unargued case with which that member does not agree. As long as the "dissenting" member is not disqualified or recused and remains on the panel, no opinion could issue. The suggested interpretation of the Rule is "fraught with mischief." Nalle, 22 S.W. at 671.
Appellate Rule 41.1(c) provides that, after argument, if for any reason a member of the panel cannot participate in deciding a case, the case may be decided by the two remaining justices. See TEX. R. APP. P. 41.1(c). There appears to be no reason to allow two justices to decide an argued case but require all justices to participate in the decision in an unargued case.
Because we can reasonably construe Rule 41.1(a) so that it does not conflict with the constitution or the statute, we should do so. See Collins v. Ison-Newsome, 73 S.W.3d 178, 184 (Tex. 2001) (Jefferson, J. concurring) ("When a procedural rule conflicts with a statute, the statute controls unless the rule repeals the statute under Texas Government Code section 22.004.") (citing Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000)). A reasonable construction of the rule, if it even applies, is that two justices on a three-member court of appeals may decide a case submitted without argument when the third justice voluntarily elects not to participate in the decision.
Chief Justice Gray decided to not join (or not disagree with) the opinion issued in this case. He is not disqualified; he has not recused himself. Thus, he remains a member of the panel assigned to the case. The decision reflected by the "Special Note" is his alone. In deciding to not vote in this case, he has chosen to disregard his own interpretation of Rule 41.1(a) and to allow this case to be decided by two justices. What, then, is the real reason for not participating?
The answer appears to lie in his attack on the timing of the issuance of the opinion, saying he should have more time "to review and vote on the result in the case." This is essentially the same complaint made in a "Special Note" filed in Krumnow v. Krumnow, an accelerated appeal that was submitted on oral argument. Krumnow v. Krumnow, No. 10-04-00143-CV, 2005 WL 2044854, at *7 (Tex.App.-Waco Aug. 24, 2005, no pet. h.) (Gray, C.J., Special Note filed Aug. 31, 2005). It has become a pattern.
The same decision to not vote or participate is reflected in a Special Note filed in Pacific Employers Ins. Co. v. Mathison, No. 10-04-00314-CV, 2005 WL 2665454, at *3 (Tex.App.-Waco Oct. 19, 2005) (C.J. Gray Special Note).
Internal Administrative Rules govern both the administrative and adjudicative functions of this court. Under those Rules, a majority of the elected justices (Chief Justice Gray voting "no") has adopted rather detailed internal rules and deadlines for opinions, non-dispositive orders, and opinions on rehearing in civil and criminal cases and for opinions after the filing of a petition for discretionary review in criminal cases. In a case like this, each reviewing (non-authoring) justice has fourteen days to join an opinion or indicate the intent to file a dissenting or concurring opinion. If the fourteen-day period passes without either having occurred, that reviewing justice is deemed to have approved the draft opinion. If the intent to dissent or concur is noted, an additional twenty-one days is allowed to draft an opinion.
According to an informal survey that we conducted, the Texas Supreme Court and approximately half of the fourteen courts of appeals have some kind of internal deadlines for the approval of opinions.
The deadline rules were followed in this case. It thus appears that the strategy is to avoid the consequences of the court's deadlines for the approval of opinions by invoking Rule 41.1(a) in an attempt to gain a veto over the issuance of any opinion with which he does not agree.