Proof of allowing the provision of alcohol to a minor in an officer’s presence is sufficient for a general discharge on an F-5 termination report

McCall v. Hays County Constable Precinct Three, No. 03-18-00355-CV (Tex. App.–Austin May 21, 2020) (mem.op.).

[Special guest summary author Laura Mueller, City Attorney for Dripping Springs, Texas]

The case involves an appeal from an Administrative Law Judge (ALJ) ’s order sustaining an F-5 termination report issued by Hays County.  The court of appeals held that there was sufficient evidence that the ALJ’s order was supported by substantial evidence.

McCall was a volunteer deputy still in his probationary period when the Hays Constable Office began investigating him for disciplinary purposes.  McCall was engaged to and lived with a 19-year-old female, who filed a family assault claim against McCall.  While the Constable’s Office was investigating the assault charge for employment purposes, the officer conducting the investigation found evidence, including from conversations with McCall, that his fiancée had been given and consumed alcohol in his presence.  Based on providing alcohol to a minor, McCall was terminated and provided an F-5 termination report with a general discharge notation.  McCall appealed the termination report to the State Office of Administrative Hearings, as required by the Occupations Code.  The Administrative Law Judge determined that there was sufficient cause for the general discharge notation.  McCall appealed.

First, the court looked at the Alcoholic Beverage Code provision that allows an underage person to drink in the presence of a parent.  In this case, the underage fiancée was drinking with McCall’s mother, not her own parent.  Because the underage fiancée is not under 18, McCall’s mother’s financial support of the underage fiancée did not create in loco parentis relationship.  Second, the court reviewed the argument there was insufficient evidence McCall provided or allowed his underage fiancée to consume alcohol.  The court reviewed the evidence under the substantial evidence standard and found that there was sufficient evidence for a general discharge, including McCall’s own statements related to his underage fiancée’s consumption of alcohol. Finally, the court reviewed the argument that Chapter 614 of the Government Code, which requires signed written complaints in order to terminate an officer, prohibits the submission of the evidence of alcohol consumption. While a family assault charge initiated the investigation, the reason for termination was evidence of allowing or providing alcohol to an underage individual.  The court did not hold that Chapter 614 could never limit what could be considered in an F-5 hearing, but that in this case, the evidence did not come from a complaint, but from the employer’s investigation of McCall’s own statements.  The court upheld the ALJ’s decision to uphold the general discharge based on substantial evidence of the appropriateness of the notation.

If you would like to read this opinion, click here. The panel consists of Justices Goodwin, Baker and Smith.

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