City of Houston v Wilburn, NO. 01-12-00913-CV (Tex. App. – Houston [1st Dist.] July 2, 2013).
This is an indefinite suspension case where the officer asserted the City did not follow the requirements of Tex. Gov’t Code Chapter 614.
Wilburn was a captain with the City of Houston Fire Department and tested positive for the use of illegal drugs during a random drug test. The City has a zero tolerance policy. After the local civil service commission upheld the disciplinary action, Wilburn filed suit. Wilburn filed a motion for summary judgment asserting he never received a written copy of the complaint which the trial court granted. The City appealed noting there was substantial evidence to uphold the Commission’s decision.
Chapter 614 does not usually apply to municipalities covered under meet and confer or collective bargaining. However, that does not appear to have been an issue raised or considered by the court. The court even stated that it was setting assigned whether Chapter 614 applies at all and simply considered whether Wilburn met his burned under the summary judgment standard.
The uncontroverted evidence established the City provided Wilburn with two letters noting he was being investigated and the complaint giving raise to the disciplinary action. The letters expressly stated the grounds for the complaint as being violation of the drug policy resulting from a drug test and provided the date of the specimen. The City investigated the veracity of the results to determine their accuracy. Therefore Wilburn failed to conclusively establish a failure to furnish a complaint, assuming Chapter 614 applied at all. The court also noted the City failed to preserve error on the substantial evidence basis, but since Wilburn did not meet his burden, the summary judgment was improper anyway. The court reversed and remanded back to the trial court.
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