Read your group’s assigned case, summarize it and what you learned from the case and how you would apply it in a management situation.? ??McCallv.HaysCty.ConstablePrecinctT

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1. McCall v. Hays Cty. Constable Precinct Three, 2020 Tex. App. LEXIS 4095

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McCall v. Hays Cty. Constable Precinct Three

Court of Appeals of Texas, Third District, Austin

May 21, 2020, Filed

NO. 03-18-00355-CV

Reporter 2020 Tex. App. LEXIS 4095 *; 2020 WL 2739868

Blair B. McCall, Appellant v. Hays County Constable Precinct Three, Appellee

Subsequent History: Related proceeding at McCall v. State, 2021 Tex. App. LEXIS 126 (Tex. App. Austin, Jan. 8, 2021)

Prior History: [*1] FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY. NO. D-1-GN-16- 005619, THE HONORABLE DARLENE BYRNE, JUDGE PRESIDING.

Disposition: Affirmed.

Core Terms

alcohol, termination, drinking, loco parentis, restaurant, hearsay, general discharge, intoxicated, dinner, fail to prevent, discharged, termination of employment, assault, contest, preponderance of evidence, substantial evidence, happened, alleged misconduct, conversation, investigated, violations, objected, talk, honorable discharge, alcoholic beverage, disciplinary, licensed, night

Counsel: For Appellant: Mr. David B. McCall, Ms. Kindra Ann Johnson, Mr. Tom C. McCall, Gray Becker, PC, Austin TX.

For Appellee: Mr. Eric A. Johnston, Mr. Michael A. Shaunessy, Ms. Brytne Kitchin, McGinnis Lochridge, LLP, Austin TX.

Judges: Before Justices Goodwin, Baker, and Smith.

Opinion by: Melissa Goodwin

Opinion

MEMORANDUM OPINION

In this appeal, Blair McCall, a licensed peace officer, seeks judicial review of the Decision and Order (Order) of the Administrative Law Judge (ALJ) with the State Office of Administrative Hearings (SOAH) on his petition to correct his "general discharge"—as stated in the employment termination report (the F-5 Report)—to an "honorable discharge" from his position as a volunteer reserve deputy with the Hays County Constable Precinct Three (Constable). See Tex. Occ. Code §§ 1701.452 (requiring employment termination report stating whether license holder was "honorably discharged, generally discharged, or dishonorably discharged" for licensed person who is terminated or separated from law enforcement agency), .4525 (providing petition process for contesting information contained in employment termination report); 37 Tex. Admin. Code § 217.8 (Tex. Comm'n on Law Enforcement, Contesting an Employment Termination Report) (same). Following a hearing (the F-5 Hearing), the ALJ concluded in the Order that the Constable had established by a preponderance [*2] of evidence that McCall's termination was appropriately categorized as a "general discharge" and should not be changed to "honorable discharge," and the district court affirmed. See Tex. Occ. Code § 1701.4525(d) (providing that proceeding to contest information in employment termination report is contested case under chapter 2001 of Texas Government Code), (e) (setting preponderance of evidence burden); Tex. Gov't Code § 2001.171 (providing for judicial review). For the following reasons, we also affirm.

BACKGROUND1

1 Because the parties are familiar with the facts of the case and its procedural history, we recite them only as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.

Page 2 of 9

This appeal arises out of McCall's September 14, 2015 petition to correct his "general discharge," as stated on the Constable's F-5 Report filed with the Texas Commission on Law Enforcement (the Commission), to "honorable discharge." See generally Tex. Occ. Code §§ 1701.452 (describing "[g]enerally discharged" as separation related to disciplinary investigation of conduct not included in definition of dishonorably discharged or documented performance problem and "[h]onorably discharged" as separation while in good standing and not because of disciplinary actions or documented performance problem), .4525 (providing for petition and hearing for correction of report); 37 Tex. Admin. Code § 217.8. After McCall filed his petition, the Commission referred it to SOAH for a hearing. [*3] See Tex. Occ. Code § 1701.4525(a); 37 Tex. Admin. Code § 217.8(c). The SOAH ALJ conducted the F-5 Hearing on June 13, 2016. At the F-5 Hearing, the Constable presented three witnesses: McCall, Constable Darrell Ayres, and Chief Deputy Ray Helm. McCall was the only witness who testified on his behalf. The relevant evidence from the F-5 Hearing showed as follows.

McCall began working with the Constable on April 14, 2015, as a volunteer reserve officer. On August 24, 2015, the Constable issued the F-5 Report stating that McCall was separated as of that date and received a general discharge. At the time of his separation, McCall was still within his 180-day probation period, having only worked for the Constable for approximately four months.2 The evidence at the hearing showed that a dinner at a certain restaurant on July 5, 2015, with McCall's fiancée Vivian Sanchez and his parents David and Pam triggered the events that led to his termination.

McCall had been dating Sanchez since February 2014, when Sanchez was 18. In March or April 2015, she and McCall began living together. McCall was then 26 and Sanchez 19, and they were engaged to be married in August 2016. McCall had been going to the same restaurant with his family most Sunday evenings "for [*4] years," and Sanchez would accompany them. McCall testified that Sanchez would "[n]ot always" have alcohol at the dinners, but he "assume[d] that most times she did," and she would "go up to the bar and get

2 Under Hays County Policy 2.17, "[t]he first 180 days of employment with Hays County is considered a probation period both for new employees and rehires," and "[i]f at any time during this period, the employee is unable to adapt successfully to the requirements of the position, the department or Hays County, employment will be terminated immediately."

it herself, order it at the table." He also explained that he believed his mother Pam had authority to let Sanchez drink alcohol under the doctrine of in loco parentis and therefore he never objected to her drinking in his mother's presence. But when asked if he provided alcohol to Sanchez outside of his mother's presence, he invoked his Fifth Amendment privilege and declined to answer.

McCall testified that on July 5, he did not see Sanchez drinking alcohol during the meal, but he realized when they walked out of the restaurant to get in his truck and go home that "she must've had a lot to drink." When asked what occurred after Sanchez and McCall got home, McCall stated that he was "gonna take the Fifth Amendment on anything related to the criminal case" and that "[a]nything related from the time that we left [the restaurant] to the time of July the 9th when I was contacted, I'm not gonna answer any questions about that." McCall testified that on July 9 Detective Mark Opiela called him, identified himself as [*5] a detective with the Hays County Sheriff's Office, and wanted to talk about something that had happened at McCall's house. But "Detective Opiela gave [McCall] no reason to believe [he was] under investigation at that time" and never mentioned him as being a suspect in any crime. Nevertheless, McCall told Detective Opiela that "you have to talk to my attorney." McCall then called his lawyer but admitted that he did not immediately call the Constable.

Deputy Helm testified that he received a call from Constable Ayers on July 10. According to Deputy Helm, Constable Ayers said he had learned from Detective Opiela that McCall was being investigated for assault/family violence and asked Deputy Helm to call McCall. Deputy Helm made three calls to McCall that day. Although Deputy Helm testified that Detective Opiela had told him that he waited 24 hours from the time he contacted McCall to contact the Constable's office, McCall claimed that Deputy Helm's initial call to him occurred only two to three hours after Detective Opiela called McCall on July 9.3

In Deputy Helm's initial call to McCall, McCall told him

3 McCall produced his cell phone records that showed incoming calls received on July 9, but the phone records listed the call as coming from McCall's own cell phone number, not from the Constable's office. McCall explained that he had "add[ed] an iPad to a data blend" with his cell phone account so that when he receives a call "it shows up as [McCall's] telephone number."

2020 Tex. App. LEXIS 4095, *2

Page 3 of 9

that he was being investigated for assault/family violence but that "it's gonna get [*6] cleaned up." Deputy Helm then said he would talk with Detective Opiela. Detective Opiela told Deputy Helm that Sanchez had filed a complaint for assault/family violence a day or two after the July 5 dinner. Realizing it was a serious matter, Deputy Helm called Constable Ayers, and they concluded that McCall should be placed on administrative leave and return his ID and badge until the issue was cleared. Deputy Helm then called McCall a second time that day and said that he had received "a call from Detective Mark Opiela with the Sheriff's Office investigating — you're a suspect in an assault and so until everything is cleared up we're gonna have to put you on administrative leave" and that "[w]e're gonna be looking into the — the policy and procedure manuals and stay in contact with me." Deputy Helm testified that he asked McCall to bring his ID and badge back at that time and that McCall said he would bring them in that week. McCall claimed he did not recall being asked to turn in his equipment prior to his termination on August 24. Deputy Helm testified that he asked McCall for the equipment two or three times from then to the separation, but it was never returned until August [*7] 25.

After returning home from the office on July 10, Deputy Helm again called McCall to see what happened. Deputy Helm testified that McCall told him that Sanchez got intoxicated at the July 5 dinner at the restaurant; that after he and Sanchez returned home, they got into an altercation where she fell and hit her head on the truck; that she then barricaded herself in the house and Pam McCall tried to give her some alcohol to calm her down; and that someone in a vehicle arrived and Sanchez got in the vehicle and went away. McCall also testified that Sanchez left the house because he broke up with her, kicked her out, and said "[p]ack your shit and leave." Later that week, Deputy Helm and Constable Ayers were discussing Deputy Helm's phone call with McCall when Constable Ayers raised the point that Sanchez is "under age." Constable Ayers reached out to Sanchez, and Sanchez confirmed that "she was intoxicated on that [July 5] night and, in fact, on several occasions [McCall] had furnished her alcohol."

In late August, Deputy Helm had another conversation with Detective Opiela in which Detective Opiela told him that assault/family violence charges were being filed against McCall and that [*8] his arrest was imminent. Constable Ayers and Deputy Helm met and considered what to do. Deputy Helm said, "Well, we do have some policy violations" and that they should look through the

F-5 and separate McCall "if all of this is — is getting stacked up." Constable Ayers testified that the basis for the decision was that "there were several policy violations," including McCall "allowing or [] not interfering . . . with a minor being in possession of alcohol and a minor consuming of alcohol" and McCall not returning his equipment when Deputy Helm had requested. Because of the policy violations, Constable Ayers and Deputy Helm concluded that "a general discharge was appropriate," rather than an honorable discharge.

On August 24, Deputy Helm called McCall and told him that he was being let go with a general discharge. On August 25, Deputy Helm asked McCall to come in because he needed to give him the F-5 Report. McCall texted him back and said he had returned all the equipment. Helm then responded that he would fax or mail the F-5 Report to McCall, which he did. Deputy Helm also prepared another report summarizing his investigation of the matter and identifying the ways McCall violated [*9] the rules of conduct applicable to all peace officers employed by the Constable (the Department Guidelines), including not immediately disclosing to the Constable's office that Detective Opiela had contacted him and furnishing or allowing others to furnish alcohol to Sanchez.

After the F-5 Hearing, the ALJ concluded that "the F-5 Report should not be changed" because:

By providing Ms. Sanchez with alcohol and failing to prevent others from providing her with alcohol, Mr. McCall: (1) failed to abide by all laws, in violation of Department Guideline 2.1; and (2) failed to comply with "reasonable rules of good conduct and behavior" and engaged in acts "tending to bring reproach or discredit upon" himself and the Constable, in violation of Department Guideline 3.1. Moreover, by refusing to disclose the facts of the night of July 5, 2015, to Detective Opiela, he failed to report all crimes and concealed the facts of such crimes, in violation of Department Guideline 4.12.

McCall appealed the Order, and the district court affirmed. McCall now appeals to this Court.

STANDARD OF REVIEW

Our review of the ALJ's Order is a substantial evidence review governed by section 2001.174 of the Texas Administrative Procedure Act [*10] . See Tex. Occ. Code § 1701.4525(d) (providing that proceeding to contest information in employment termination report is contested case under chapter 2001, Texas Government

2020 Tex. App. LEXIS 4095, *5

Page 4 of 9

Code); Tex. Gov't Code § 2001.174 (setting forth substantial evidence review standard); see also Stacks v. Burnet Cty. Sheriff's Office, 565 S.W.3d 860, 865 (Tex. App.—Austin 2018, no pet.) (applying substantial evidence standard of review); City of Rice v. Texas Comm'n on Law Enf't Officer Standards & Educ., No. 03-11-00047-CV, 2013 Tex. App. LEXIS 7551, 2013 WL 3186194, at *2 (Tex. App.—Austin June 21, 2013, no pet.) (mem. op.) (describing substantial evidence review). This standard requires that we reverse or remand a case for further proceedings "if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions" were made through unlawful procedure; are affected by other error of law; are not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or are arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion, among other things. Tex. Gov't Code § 2001.174(2). We presume that the administrative decision is valid and supported by substantial evidence, and the complaining party bears the burden of showing otherwise. City of Rice, 2013 Tex. App. LEXIS 7551, 2013 WL 3186194, at *2 (citing Sanchez v. Texas State Bd. of Med. Exam'rs, 229 S.W.3d 498, 510 (Tex. App.— Austin 2007, no pet.)). In reviewing the decision, we are concerned with the reasonableness of the administrative order, not its correctness. [*11] Id. (citing State v. Public Util. Comm'n, 883 S.W.2d 190, 203 (Tex. 1994)). With this standard in mind, we turn to the parties' dispute.

DISCUSSION

On appeal, McCall raises eight issues. In his first four issues, McCall asserts that the ALJ and the district court should have considered the Constable's alleged violations of chapter 614 of the Texas Government Code, which set forth procedures for a termination based on a complaint. In his fifth issue, McCall complains that the Constable raised additional grounds for McCall's general discharge at the F-5 Hearing, other than the original two grounds initially provided to McCall. In his sixth issue, McCall challenges the ALJ's reliance on hearsay evidence. In his seventh issue, McCall argues that his mother was acting in loco parentis to Sanchez, and therefore there was no violation of section 106.06 of the Texas Alcoholic Beverage Code. In his final issue, McCall raises a substantial evidence challenge to the ALJ's findings of fact.

Although the Constable raised multiple grounds for the general discharge, we consider only the ground that we conclude is dispositive: that McCall, i

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