Civil Service Notice Requirement Absolutely Mandatory Prior To Discipline

Justin White worked as a police officer for the City of DeSoto, Texas. Following two internal investigations, the City indefinitely suspended White, the equivalent of a termination. On December 4, 2003, the Police Chief personally delivered to White a ten-page Letter Of Indefinite Suspension. The letter advised White that each of the two investigations resulted in finding that several policies had been violated.

The facts supporting the findings as well as the specific policy violations were detailed in the letter. The letter concluded that White had committed the following violations: (1) Acts of incompetency; (2) neglect of duty; (3) conduct prejudicial to good orders; (4) absence without leave; and (5) violation of particular Police Department rules.
White challenged his suspension on the grounds that the letter did not comply with the Texas Civil Service Act and required that his suspension be set aside. The Texas Court of Appeals upheld White’s arguments.

The Court recited the provisions of the Act which detail the mechanics of the disciplinary suspension process in Texas. First, police officers must be notified of disciplinary action against them by a written letter from the Chief. If the disciplinary action is a suspension, the statute also requires that the Chief file notices of suspension with the local Civil Service Commission, and that the statement of suspension be immediately delivered in person to the police officer.

Significantly, the Act provides that “in addition to the other notice requirements provided by this chapter, the written notice must state that in an appeal of an indefinite suspension the police officer may elect to appeal to an independent third-party hearing examiner instead of the Commission. The letter must also state that if the police officer elects to appeal to a hearing examiner, the person waives all rights to an appeal to a District Court except as otherwise provided in this statute.”

There was no dispute that the City’s letter to White did not contain any text about his appeal rights. In the eyes of the Court, this failure mandated that White’s suspension be overturned.

As the Court put it, “the statute speaks in terms of what a letter ‘must’ state. When used in the statute, the term ‘must’ creates or recognizes a condition precedent. The term is generally recognized as mandatory, creating a duty or obligation. Here, the plain language of the statute is clear and there is no question the notice requirement is mandatory. We have held that the Police Department must fully perform all conditions established by the Civil Service laws before a hearing examiner obtains jurisdiction.”

The City also argued that it had “substantially complied” with the notice requirements in the statute. The City contended that “substantial compliance is met when notice of an adverse employment decision sufficiently apprises the officer of the charges against him and the facts relied upon to prove those charges.”

The Court was unconvinced, finding that “a tribunal only has subject matter jurisdiction over the removal of an officer when all conditions established by the Civil Service law have been fully performed.”

The Court ordered the City to correct White’s personnel records and to reinstate him to his former position with back pay. The Court also ordered that the City pay White’s attorney’s fees.

City of DeSoto, Texas v. White, 2007 WL 2421524 (Tex.App. 2007).

This article appears in the October 2007 issue