Contending summary judgment was improper and material questions of fact exist to vitiate it, Joe Barnett appeals from the summary judgment granted in favor of the City of Plainview, Texas; E. V. Ridlehuber,
The parties stipulated to the underlying facts. On February 27, 1984, the City appointed Barnett as Plainview’s municipal court recorder (judge) with duties including presiding over and disposing of cases in the municipal court, maintaining records of the court, signing warrants, and reading rights to juveniles. Barnett continued in this position until the events at issue occurred.
On January 10, 1986, Jeffers, with Ridle-huber’s approval, sent a letter outlining the City’s concerns over Barnett’s performance of his duties, and instructing him to attend a January 14 hearing to discuss the matters addressed in the letter. After the hearing, at which Barnett was present, the City Council voted to remove him from office, effective immediately. The Texas Commission on Judicial Conduct was not notified of any grievance or proceedings against Barnett by the City.
On January 8, 1988, Barnett brought suit against the City. In his live trial pleadings, he alleged the City had violated the separation of judicial and legislative powers and his right to free speech, and deprived him of a liberty interest without due process.
Upon the City’s general denials, Barnett filed his motion for summary judgment. As pertinent to the issues presented to us. Barnett alleged that the City’s actions (1) were preempted by state laws, (2) denied him due process, (3) were an unconstitutional invasion of a judicial function, (4) were violative of judicial immunity, (5) were an impermissible procedure for removal, (6) denied him a property interest in a public office, and (7) denied him a liberty interest in his character and reputation without due process of law.
The City timely responded to each of Barnett’s allegations, and in turn, filed its own motion for summary judgment. The City opined that Barnett was an employee-at-will, and his termination complied with the city charter and ordinances, the state constitution and statutes, and the Federal Constitution and statutes.
Barnett responded by attacking the City’s affidavits in support of their motion as incompetent. He made no direct response to the City’s contention that it fully complied with the charter and ordinances governing the office of municipal court judge, and did not allege that the charter and ordinances were preempted by state law.
In his response to the City’s motion for summary judgment, Barnett states that a “separate response will be made by counter-affidavit.” No such separate response is in the record before us. Ordinarily, we may only consider the response filed which made no contest concerning preemption, separation of powers, or due process. As appellant, it was Barnett’s burden to see that a sufficient record was presented to show error by the trial court which requires reversal. Tex.R.App.P. 50(d).
Nevertheless, it is apparent from the record, specifically Tom Hamilton’s December 14, 1989 letter to the trial court and the identical orders granting and denying the respective motions for summary judgment, that the legal issues presented by Barnett’s motion were equally considered in the disposition of the City’s motion. In the interest of justice, we will consider these matters as addressed.
In both the order denying Barnett’s motion and that granting the City’s motion, the trial court determined that Barnett was an officer and employee of the City and, as
Barnett contends the summary judgment was erroneously granted because (1) Texas statutes and the Supreme Court have promulgated rules for the removal of judges which preempt the City’s provisions for removal of a municipal court recorder (judge), (2) material questions of fact exist about whether the City violated the separation of powers, (3) the City violated his judicial immunity when it removed him on improper grounds without the necessary proceedings, (4) a question of fact exists regarding whether his removal was consistent with the Texas Constitution, statutes, and Supreme Court rulings specifying grounds for removal, and (5) he did not receive due process safeguards regarding his property interest in continued employment. These contentions will be discussed in logical consecution.
A movant is entitled to summary judgment if he shows the absence of any genuine issues of material fact and the right to judgment under the undisputed material facts, as a matter of law, on grounds expressly stated in the motion.
Delgado v. Burns,
When the defendant is the mov-ant, summary judgment is proper only if the plaintiff cannot, as a matter of law, succeed upon any theory plead.
Peirce v. Sheldon Petroleum Co.,
In his first point of error, Barnett contends summary judgment was improper because the provisions of the City's Charter and ordinances under which he was dismissed are, as a matter of law, inconsistent with the Texas Constitution, state statutes, and Supreme Court rulings and, thus, preempted thereby. We disagree.
Although not established by the record, it is uncontested that Plainview is a home-rule city as contemplated by the Texas Constitution, and we accept this as true. Tex.R.App.P. 74(f). A city is a home-rule municipality if it operates under a municipal charter that has been adopted or amended as authorized by article XI, § 5 of the Texas Constitution. Tex.Loc.Gov’t Code Ann. § 5.004 (Vernon 1988);
City of Sherman v. Municipal Gas Co.,
By statute, the municipal court recorder (judge) in a home-rule city is selected under the municipality’s charter provisions relating to such appointment. Tex.Gov’t Code Ann. § 29.004(a) (Vernon 1988). A home-rule city has authority to create offices, determine the method for selecting officers, and prescribe the qualifications, duties, and tenure of offices for its officers. Tex.Loc.Gov’t Code Ann. § 26.041 (Vernon 1988). The term of office is to be set by the charter but cannot be less than two years, nor more than four. Tex.
Plainview, Texas Charter Section 7 provides in pertinent part:
The other officers of said City shall be ... and such other officers and employees the City Council may determine ... and all other officers or employees of the City shall be appointed by the Mayor and confirmed by the Council, and shall perform such duties and receive such compensation as may be decided upon by the Council, and for such length of time as the Council shall decide, ...
Article X, Section 84 of the Charter goes on to establish a corporation court as contemplated by statute, commonly referred to as a municipal court, providing:
the Mayor shall be ex officio Judge of said court ... provided, however, the City Council may by ordinance create the office of Recorder [judge] of said court and make said office appointive by said Council or elective by a vote of the people.
In accordance with these provisions, Plainview Code § 19-5 creates the office, and § 19-6 provides that the City Council shall appoint the recorder (judge) of the municipal court. From the portions of the Code and Charter provided in the record before us, the Charter and ordinances do not provide a set term of office, nor do they provide established procedures for removal from office.
The City contends that because there was no set term of employment, Barnett was an employee-at-will, and could be dismissed at any time, with or' without cause. For the reasons expressed below, we disagree that, at the time in question, Barnett was an employee-at-will.
The purpose of the home-rule amendment to the Constitution is to bestow upon cities coming thereunder full power of local self-government,
City of Monahans v. State,
The powers of home-rule cities are subject to, and may be limited by, their charters, the Constitution or statutes.
Lower Colorado Riv. Auth. v. City of San Marcos,
The broad language in the Charter that the municipal court recorder (judge) will serve “for such length of time as the council shall decide,” is expressly limited by § 29.005 of the Texas Government Code, which states:
The judge of a municipal court serves for a term of office of two years unless the municipality provides for a longer term pursuant to Article XI, Section 11, of the Texas Constitution.
Tex.Gov’t Code Ann. § 29.005 (Vernon 1988). Although the Charter is limited by the statutory requirement, it is not in conflict therewith so as to deem it void.
Cf. Municipal Gas Co. v. City of Sherman,
A city ordinance or Charter provision is presumed to be valid, and the courts have no authority to interfere unless it is unreasonable and arbitrary, amounting to a clear abuse of municipal discretion.
City of Brookside Village v. Comeau,
The entry of the state into a field of legislation does not automatically preempt that field from city regulation. Regulation ancillary to and in harmony with the general scope and purpose of the state’s enactment is acceptable.
Id.
While the statute expressly provides for a minimum term of two years for a municipal court judge, the existence of the limitation does not preclude the City from making provisions governing the creation of the office, the selection of the judge, and prescribing his qualifications and duties. Tex.Loc.Gov’t Code Ann. § 26.041 (Vernon 1988). The statute and the ordinances can be read in harmony together as allowing the municipal court judge to be appointed by the City for a minimum term of two years, with qualifications and duties prescribed by the City.
Barnett was entitled to a two-year term of appointment as municipal court recorder (judge) and, thus, to that extent, was not an employee-at-will. Since the removal occurred before the expiration of two years from the date of appointment, we must determine whether construction of the Charter provides for the City’s removal of the recorder (judge) from office prior to the end of the appointed term.
In construing a city’s charter, intent must be given effect and the language used construed as written, unless this would defeat the intent.
Willman v. City of Corsicana,
When power over a particular subject matter has been delegated to a municipal corporation by the legislature without any express limitations, the extent to which that power shall be exercised rests in the discretion of the municipal authorities, and as long as it is exercised in good faith and for a municipal purpose, the courts have no ground upon which to interfere. Id.
Where removal is expressly provided for in the city charter, it is a part of the contract and officers of the city can be removed without a hearing.
Jones v. Harlan,
Contrarily, in the present instance, the power of removal is not expressly given in the Charter or ordinances. The question becomes whether the City, having all powers not denied to it by the Constitution or statutes, impliedly has the power to remove a municipal court judge prior to the end of his appointed term.
A home-rule city has full powers of local self-government and the grant of powers by the local government code does not prevent, by implication or otherwise, the municipality from exercising the authority incidental to local self-government. Tex.Loc. Gov’t Code Ann. § 51.072(a), (b) (Vernon 1988). It may exercise such powers as are expressly granted to it in its charter or such implied powers as are incidental to the powers granted, or those essential and necessary to make effective the objectives and purposes of the city.
Amstater v. Andreas,
The Charter and ordinances expressly grant the City the power to appoint the municipal court recorder (judge). Without doubt, the objective of such provisions is to establish the office and the qualifications
Having determined the City had authority to remove Barnett from office prior to the expiration of his term, we must determine, as Barnett’s fourth point of error contends, whether there was a material question of fact that the removal was accomplished in a permissible manner.
The general rule applicable when a valid provision of a home-rule city charter vests a discretionary power in a city council, is that a court has no right to substitute its judgment and discretion for the judgment and discretion of that body and may only adjudge whether the council acted illegally, unreasonably, or arbitrarily.
Barrington v. Cokinos,
Since the thrust of Barnett’s attack is upon the legality of the procedure followed by the City in making its determination, rather than the sufficiency of the reasons advanced for that determination, that is the question next presented for our decision.
Barnett contends that Texas Government Code § 33.001
et seq.
preempts the City’s Charter and ordinances, and that
Matter of Davila,
There is a well recognized distinction between cities and towns incorporated under statutes and those known as home-rule cities.
Municipal Gas Co. v. City of Sherman,
Until the statute has been extended to cities by the legislature, courts are not authorized to extend it beyond the class of cities to which it was designed to apply.
City of Sherman v. Municipal Gas Co.,
The City provided Barnett with both a list of their concerns and an opportunity to be heard in that regard, neither of which was compelled by the Charter. We are not willing to say that because they offered the hearing it should have had the formalities required to remove district court judges.
Accord Crain v. Firemen
's
& Policemen
's
Civil Service Com’n,
By its judgment, the trial court determined the removal procedure used by the City was lawful and reasonable. Barnett contends consideration of the reasons advanced for the council’s determination that
However, because we have determined the Charter and ordinances are not preempted, and an appointed municipal court recorder (judge) does not fall within the same category as justices or judges of the courts established by the Constitution or created by the legislature, the question of a violation of the separation of powers principle does not exist. Barnett’s fourth point of error is overruled.
Having determined that, as an appointed municipal court judge of a home-rule city, Barnett was not entitled to take advantage of provisions afforded constitutional and statutorily created judges, a discussion of his remaining points of error is unnecessary. The judgment of the trial court is affirmed.