Town of South Padre Island v. Jacobs

PADRE TOWN OF SOUTH ISLAND Johnny Smith, Appellants, JACOBS, Appellee.

Fred R.

No. 13-85-357-CV. Texas, Appeals

Court of

Corpus Christi.

Nov.

On Rehearing July

Rehearing Aug. Denied Denison, Roger Hughes,

Jim W. Harlin- Cunningham, Padre Is- gen, Paul South Sawtelle, Goode, land, Griffin, Gaines R. Troilo, Antonio, & San Davidson lants. Sullivan, A. Downey, Denis

Thomas Brownsville, appellee. UTTER, BENAVIDES,

Before SEERDEN, JJ. employment

OPINION terminate Jacobs’ with the Town. memorandum included such BENAVIDES, Justice. report reasons as Jacobs’ failure to to work appeal arises alleged This an time, his acceptance position of a similar wrongful termination of employment. neighboring town and use of the Appellee began working as fire chief for per- Town’s capacity vehicle in that without Town on December mission, as well enumerated as several vio- had previously been a member of the Balti- Rules, Regula- lations of the Departmental City Department more 1951- Fire tions, and Procedures. years, 1966. For the next ten he his and issues, In answer special jury to the operated home wife a shelter for the Mont- found that appellee had entered into an gomery County Maryland Social Service in employment contract with the Town of moving before to Texas From Town) (the Padre South Island for a 1980, certain appellee employed 1977to was as fire period, ending Town, responsible time date of the in- the contract marshall for the for existing being 31, specting jury and to new constructions December found compliance regula- the appellee’s evaluate with fire employment was terminable initially had only tions. The Town a vol- cause, with the did not Town have department, and in unteer fire the Fall of cause to appellee, terminate that the Town began organizing paid a full-time fire materially breached the contract for em- department. $26,000 ployment, represents and that the present employment cash con- value of the

Appellee September testified that existing tract. city manag- the Town’s then er, Kirby Lilljedahl, approached him and appellant Johnny In reference to P. position him the of fire offered chief of the (Smith), that he jury Smith the found had Department Fire begin official to deprived appellee right of his constitutional 1, 1980. As a December condition of his privacy petition grievances and employment, appellee testified he law, acting due process without while required from Los to move Fresnos law, ap- color of and awarded under state Laguna Appellee, although Madre area. $5,000 pellee privacy actual for home, pur- unable to sell his Los Fresnos $5,000 deprivation deprivation Laguna chased a house in Madre. grievances. appellee’s right petition organizing assumed the task of addition, jury found that Smith did department, drafting new fire De- good in the course not act faith and partmental Rules, Regulations, and Proce- manager city with his official duties as dures, hiring fighters for the de- termination, regard that cer- appellee’s partment. in a Febru- tain material matters contained Johnny P. assumed Smith the duties as memorandum, 3, 1983, ary written City Manager Town’s June Smith, Smith, false, acting were and that 3, 1983, February On after an executive malice, actual libeled and slandered Aldermen, session with the Town Board of when the memoran- appellee position Smith informed that his of Aldermen or dum to the Board town terminated, being effective two weeks employees. found actual town date, from that 1983. Smith exemplary damages of dam- presented copy appellee with a memo- of a ages as a of the libel slander result give randum he written was to $50,000. against amount of Smith in the the Board of Aldermen which formed the basis of this lawsuit. assessed dam- judgment The trial court Town, $84,000 ages

Smith’s memorandum contained the rea- against Smith, joint and several recov- why did not believe sons Jacobs was ery court costs attorney’s fees and performing job as fire chief in satis- manner, against appellants. factory and therefore decided Appellants bring twenty-six points Petition, er- Plaintiff shall be limited to ror. proof of a contract which must be im- plied from the conduct the Defendants error, By points their first two permitted and Plaintiff shall not be lants claim that there is no evidence to express employ show an contract to support jury’s Special answers to Is- Plaintiff age years until the since sues because the evidence con- contrary judicial to the Plaintiff’s admis- clusively establishes that was an sion that he had neither an oral or writ- town, or, employee “at will” alterna- ten contract to work the TOWN OF tively, the is sup- evidence insufficient to ISLAND, TEXAS, SOUTH PADRE until port jury’s answers and answers he retired. manifestly unjust. By points therefore allegations B. As to the contained in five, three, of error appellants four and Paragraph X of Plaintiff’s Third Amend- claim that Special answers to Original ed Petition wherein Plaintiff al- Issues No. 5 and 6 are immaterial be- leges a written until contract December status, appellee’s cause of “at will” or al- 31, 1983, Plaintiff shall be limited to ternatively, no there is evidence or insuffi- proof by proof of such pay- of support cient evidence to the contract answers. payable roll checks to FRED JACOBS In “no considering a evidence” or “insuf- from the SOUTH TOWN OF PADRE error, ficient point evidence” of we will ISLAND, TEXAS. follow the well-established test set forth in any There no of Dyson was evidence written v. (Tex. Corp., Olin S.W.2d 456 agreement contract, and 1985); no evidence of Glover v. Texas General Indemnity Co., payment by payroll the of checks to (Tex.1981); 619 S.W.2d 400 Garza v. appellee, by Alviar, provided Paragraph as B of (Tex.1965); 395 S.W.2d Allied Appellee the Pretrial Order. Garza, was Finance Co. v. never 626 S.W.2d 120 asked employed whether he had been until 1981, (Tex.App. Corpus Christi writ ref’d — 31,1983. n.r.e.); only December testified Calvert, No Evidence and Insuffi- $21,280 earning per year that he was Error, cient Evidence Points 38 Texas of terminated, fire chief paid when he was (1960). L.Rev. 361 bimonthly. Appellee, in his Third Original Amended Petition, brought a cause any of action of record is devoid evi contract, alleging breach of a period contract for: dence which indicates the of time for (1) a term years of extending until he the existence of a contract between the age 65; (2) reached that if such contract appellee. Town and It is well settled in oral, might was it have performed been employment Texas that when an contract is within one year, (3) and alternatively, period time, the oral and for no it is definite yearly contract was for a term renewable Currey by party. terminable at will either each every year [appellee] which Co., v. Lone Star Steel 205, paid was yearly salary. a Appellee’s peti- 1984, writ). (Tex.App. Worth no In —Fort goes tion on to state that: addition, employment when the terms Such indefinite, wages contract was writing, evidenced in loss wit, by disbursing checks yearly employee would have earned the indefi wage [appellee]. Accordingly, [appel- nite future is not a recoverable item of says that he is entitled Mendoza, Reynolds Co. v. damages. under this Mfg. lee] theory contract, of employment wages (Tex.App. Corpus S.W.2d 536 Christi — termination, owed point 1982, writ). existed, Febru- no If any contract 16, ary until December terminable at will Town. Appellants agreed to a Pre- policy requires public We note that trial Order following which contains the exception employment-at-will narrow to the provisions: employee doctrine for an who dis- allegations charged

A. As paragraph the sole reason that the em- IX of Original ployee illegal Plaintiffs Third perform Amended refused to an act. Service, Hauck, Sabine law, Pilot Inc. v. 687 state in connection the termi- (Tex.1985). Nothing S.W.2d 733 in the employment nation of Jacobs’ with the necessity record explore indicates the Town. this exception. Appellee pled for and recovered addition, admitted his testi- $5,000 for his claim based “feder- mony that he departmental regu- drafted a ally protected” right of privacy, and provides lation any which member of damages for his claim right based on his department “may discharged be petition grievances. complains with or without cause.” We sustain damage by points these awards of error lants’ through first points fourth of error. twenty-two twenty-three. Points of error six and seven assert no Although does Constitution not ex- “[t]he evidence or support insufficient evidence to plicitly any right privacy,” mention Special answer to Issue No. 7. Supreme United recog- States has Court In response issue, special aspect nized that “liberty” pro- one the°present found to be cash value tected the Due Process Clause of the of the employment between contract per- Fourteenth Amendment is “a appellee, result, Town and and as a privacy, guarantee sonal or a of certain $26,000 against trial court awarded Wade, areas or of privacy.” zones v. Roe Town. 410 U.S. 93 S.Ct. thorough A search record (1973); L.Ed.2d 147 Carey Popula- See reveals might paid that Jacobs’ have been International, tion Services 431 U.S. $21,800 per at most year. We find no 2010, (1977). 97 52 S.Ct. L.Ed.2d 675 The support evidence finding. to right privacy protects only rights of Moreover, due to the “at will” status of ‘implicit deemed “fundamental or in the employment, precluded Jacobs’ was concept Roe, liberty.’” of ordered 410 recovering from wages. these “lost” 152, U.S. at 93 S.Ct. at 726. Reynolds Mendoza, Mfg. Co. v. 644 S.W.2d The undisputed City record is Man- at nothing findWe in the record to ager investigation Smith had conducted an support damage award for loss Department regard Fire to with employment of of breach contract possible drug problems within the illicit against Appellants’ point the Town. sixth department, possible and the removal of error is sustained. theft of a Honda three-wheeled motorbike Petition, In his Third Original Amended being depart- which was stored at fire deprived claims that he was of his During ment of facilities. the course right privacy right petition griev- to investigation, department of the fire all ances violation of his United States Con- personnel polygraph were asked to take rights stitutional and 42 U.S.C. § tests, complied. and all (1986). He asserts that he was denied counsel, given opportunity to urged Appellee at trial his behalf, call present witnesses on his to right privacy to was violated as result of evidence, other and to confront adverse test, his taking polygraph surveillance complained witnesses. also by his home former Police Chief conducted no adequate record was made of the termi- Garcia, Arthur and an record check arrest proceeding nation before Town Aider- appel- which Smith Garcia to run asked men. authority lee. been no We have cited to a violation eleven, which would create or establish eight through appellant

By points appellee’s right privacy. to On the con either Smith asserts that there was no evi- trary, for re no action lies jury dence or for the insufficient evidence find, questing appellee’s response Special Issues arrest record. Nos. 8(b) 8(c), Ap United Fifth deprived appellee that he had States Circuit Court peals “the right right petition explicity has stated that Consti privacy grievances, agency acting color of tution bar a while under does not state meeting. Febru- ily stayed information to those who outside the On furnishing such 16, 1983, meeting ary there was another legitimate need for and interest present a ap- the Board of Aldermen where Jacobs Super Tosh v. in the material.” Buddies given opportunity to Inc., (5th peared and was an markets, 482 F.2d Cir. ap- protest his termination. It was Thomas, 1973). 660 F.2d See also White v. pellee’s discretion whether to call witnesses Cir.1981), (5th den., cert. 455 U.S. attorney. The represented or be an 72 L.Ed.2d 148. An arrest S.Ct. properly ap- considered Board of Aldermen record check is known to be a common they simply agree did not pellee’s petition, procedure used law enforcement investi request to remain fire chief. with Jacobs’ wrongdoing. poly gations of crime or support find no evidence to We compliance graph testing conducted 8(c), Special Issue No. and sus- answer to ongoing investigation of the entire an with twenty- appellant tain tenth and Smith’s probable cause department. Neither points third of error. suspicion necessary to nor reasonable v. authorize a surveilance. Hamilton through twenty Points of error twelve State, (Tex.Crim.App.1979). question validity jury answers to polygraph A test administered with volun Special Issues Nos. 13 and 14. tary right consent does not one’s violate issues, response these found privacy. There is no evidence in the record 1) good appellant that: Smith did not act appel- which would indicate a violation of and in the course of his official duties faith federally protected right privacy. lee’s dealings City Manager in his with appellant eighth We sustain regarding appellee’s lee the termination twenty-second points of error. town; 2) employment certain ma- contained in the terial matters We also find that was not de- false; 3) 1983 memorandum were prived petition of his for redress of Smith, malice, acting with actual libeled grievances. Corpus As this noted in Court and slandered Jacobs when Independent Christi School District Board of and discussed the memo with the Padilla, (Tex.App. Corpus 709 S.W.2d 700 — employees. By points Aldermen town Christi, writ) (not yet reported): no twenty-four twenty-five, appel- error public employer required is also not [a] awards, complains lant of the Smith by the es- United States constitution to 16, response in 15 of actual to issues grievance procedure respond tablish a or exemplary dam- grievances lodged by employees its or ages libel and slan- Smith’s requirement their union.... The der of Jacobs. I, 27, Article that [Texas § Constitution] im- government body petitions a “consider” Smith asserts entitlement to absolute brought it, actions for munity before is much more than from libel and slander with requires. even federal law Padilla at statements made connection termination, alternatively a claims See also Associa- lee’s [704]. Professional privilege in the communications College qualified tion Educators v. El Paso District, as a Board of Aldermen County Community [College] made to the Town 94, (Tex.App. 678 96 Paso matter of law. S.W.2d —El 1984, n.r.e.). writ ref'd found, however, in answer jury 9, Here, did not opportunity Special Issue No. that Smith had an good faith and the course appear before the Town Board of Aider- act Manager in his City men. He testified he was notified Smith his official duties finding This thwarts going dealings Jacobs. that Smith was to discuss Jacobs’ with immunity. More of absolute possible termination with the Town Aider- an assertion over, completely men, privilege to be since absolute and that Smith wanted Jacobs action, the remedy in civil a present meeting at in the event there forecloses has tradition privilege questions At the defense of absolute were to be answered. Hol- Parker v. 3,1983 ally very limited. See meeting, voluntar- been February 140 brook, 647 692 (Tex.App. S.W.2d shortly It was after city Smith became —Houston 1982, n.r.e.). ref writ d June,

[1st We find manager Dist.] 1982 that difficulties be- no Texas or case law statutory authority to tween Jacobs arose. Jacobs tes- support Smith’s entitlement to absolute im chief, tified he that when was hired as fire munity for his written and/or oral commu regarding basic discussion the hours he nications. even if Finally, the statements would work get was “whatever it takes to in question qualifiedly privileged, were job done.” The record reveals that jury’s finding abrogates of actual malice Jacobs did not have a set 8:00 to work 5:00 any Chevrolet, such privilege. Vista Inc. shift, frequently job and was on the before Barron, 435, v. (Tex.App.— 698 S.W.2d a.m., working past 8:00 long p.m. in 5:00 Corpus writ); Christi no see also that, the evening. Smith’s memo states on Cheatwood, Jackson 445 S.W.2d 513 July “Mr. Jacobs was warned (Tex.1969); Bergman Sport v. Oshman’s coming in about late and instructed to con- Goods, Inc., (Tex.Civ. ing 594 S.W.2d 814 centrate time and efforts the fire de- 1980). App. Tyler is exclu — partment improve in an opera- effort judge sive credibility of witnesses tions, help morale and reduce turnover.” weight given and the testimony. to be their It also states that January resolving conflicts, contradictions and again officially, “.... He was with threat they may part choose believe all or action, disciplinary told Man- testimony any none one witness ager work hours 8:00 were a.m. to 5:00 arriving finding at the it concludes was the p.m. ...” Smith admitted at trial most reasonable under the evidence. Tre had never required told Jacobs he was v. Espinosa, (Tex. vino S.W.2d be in his office between hours of 8:00 Christi, App. Corpus 1986); Caterpillar — p.m., a.m. and 5:00 no that Jacobs had Boyett, Tractor Co. v. shift, specific provided nor had Smith ever (Tex.App. Corpus Christi no — repri- Jacobs with written evaluation or writ). mand. Jacobs stated that to the best of his Appellant Smith also asserts in his brief knowledge, he any had never had difficul- established, it is “indisputably based department ties with any person- upon plaintiff's admissions, own any nel or city government, member of the the contents of February Mr. Smith’s good working relationship had a disagree. memo true.” We city manager any griev- and had never years complaints

For the courts of Texas have ance or Ja- filed him. recognized actions, that in libel and slander cobs also testified that he had never been truth of the defamatory statements is an disciplinary threatened with action. defense, proving affirmative burden re- memorandum is being placed truth on the defendant. plete with to both and contradictions his Co., Buck, B. Frank Hall & Inc. v. testimony Jacobs’ at trial. (Tex.App. S.W.2d [14th —Houston Jacobs that when he became fire testified n.r.e.). writ Contrary ref’d Dist.] chief in he ve- supplied was with a assertions, the record reflects that city two-way hicle which a contained appellant Smith false re communicated police radio fire that hooked into the and persons marks to third in way such a that dispatcher. knowledge, To was there they may have understood the words be otherwise, re- any policy, never written or Moreover, defamatory. while evidence of garding use He of the vehicle. used ill enough will alone is not to establish sites, jobs, inspect to visit construction malice, proof that defendant enter transportation on the Island. The memo plaintiff ill proba tained will toward the is violating depart- asserts tive evidence that the defendant regulations by using mental the information rules knowing either of its falsi reasons, ty disregard departmental or with personal reckless its truth vehicle for falsity. Buck, or yet was no written S.W.2d at Smith admitted there regarding inspections Laguna the use of Vista in the Town policy at that time public Department vehicles. of South Island Fire vehicle permission. without In Jacobs established a October November, Jacobs, Mr. confis- training program cooperative between Port private property private prop- cated Vista, coordinating Laguna with Isabel (Four (4) erty property and stored the public depart- the Coast Guard works bikes) in Fire three-wheel Station. organized department the fire ment. He reports No were filed and no Offi- implemented training program a to in- cial was informed. Now it has been re- personnel struct the Town in the use of fire (1) ported one of the three-wheeled bikes equipment. The memo asserts that on No- has been stolen from the fire station and 9, 1982, instructed to vember Jacobs “was anything no one knows about it. up training program depart- set a for the records,” update yet ment and all these memo, contrary Also to the Jacobs testi- things already prior No- been done physi- fied that no one had ever told him to vember hours; during cally be in the office certain any he or that, was unaware morale The memo also states on October problem; turnover that he did check in and possible discussion “[a]fter dispatcher away out when he drug problems department, in the fire Mr. office; again from the radio or that he did not Jacobs was instructed to concentrate “shift,” operations depart- on the internal could not of his work so be violation Jacobs, however, shift;” reporting ment.” It was ini- he who of “late never tially investigated drug possibility engaged discrediting of a in conduct fire problem firemen, between dis- department; engage “any two did not that he cussed the matter with Smith and then took activity, personal entertainment busi- city attorney. it to the ness which distract or cause to ne- would duties;” glect official that he was [his] Appellee volunteered to assist with one any personal conduct that was aware inspection town, in neighboring on a damaging depart- reprehensible or Sunday, taking and was accused of another ment; anything he had never done and that “job” informing City Manager without “immoral,” in would be considered which regard Smith. With to Jacobs’ volunteer departmental Smith had violation of rules. Vista, activity Laguna Smith admitted no that showed Jacobs had information that was of more unaware than the one being “neglected his official duties en- inspection alleged per- Jacobs was to have per- gaged any activity, entertainment or Laguna formed for Vista. Jacobs also con- Although Smith testified sonal business.” fiscated four three-wheel Honda vehicles that he did not think that Jacobs’ failure creating which were a fire hazard at a department, he pay a debt discredits the nearby contacting condominium. After constitutes asserts that such indebtedness owners several times to come collect them Moreover, the evi- “immoral conduct.” department, at the fire one was discovered published or dence reveals that Smith missing. immediately reported He published the memo to the caused to be chief, police matter to the but the chief did news media as well as members report not file a written until two weeks employees. city Town Aldermen states, later. The memo however: 31,1983 (2) January problems were proved cannot find that Smith We —two brought to the attention of the Man- in asserted his the truth of the matters ager: 3, 1983, so as to memorandum the cause posi- his defense of truth to accepted Mr. Jacobs had the establish Smith Laguna tion of Fire in for libel and slander. Chief Vista while of action immoral, irresponsible, serving capacity painted appellee still in the for the as same factual incompetent, and made various Town of South Padre Island. Mr. Jacobs and (with appellee in his memo to anyone allegations had failed to about inform the Town) immorality of including the job. doing Mr. such an effect Jacobs was The had you here, Jacobs. sufficient evidence to mind that you’re once leave find and did find Smith appellant libeled going applications to file have to for oth- appellee. slandered The and evidence is positions er they coming will be back jury’s uphold findings sufficient to the here for references. Appellants’ points and slander.

libel Garcia, (Testimony of witness Arthur through are twenty twelve overruled. Police Chief of Town of South Padre Appellant Island before damage fired on state- claims Smith.) ments by appellant under made to him awards “excessive the facts of they case prod- and show are the (a) He said Mr. Jacobs was a thorn bias, passion prejudice,” uct asks get the side and he wanted to rid of him. damages for at least a remittitur under (b) Try dig up any to information we specific issue. each There is no attack on get could on order Fred in to him termi- sufficiency of the evidence of actual nated. they but a claim that are exces- (c) Well, I tried to see if I find could sive. any get trash on him Fred terminated sufficiency is Factual the sole do, Ias was sir ordered ... damages. remittitur standard for actual sup- sufficiently evidence in case this Moore, v. (1986). Pope 711 S.W.2d 622 ported finding so actual malice damages resulting libel or slander are support exemplary damage as to issue. personal purely by cannot be measured We appellants’ twenty-fifth point. overrule rule, any fixed standard or the amount Appellant’s twenty-sixth point of error largely awarded to be rests the discre complains recovery of attorney fees jury. Buck, tion 678 S.W.2d at 630. appellee’s Attorney’s on behalf. fees are appellee There was evidence that suffered provid- recoverable in an action unless anxiety. emotional distress ed statute contract or a between the among things testified other that his anxi parties. New Casualty Amsterdam Co. ety caused him to disassociate himself from Industries, Inc., Texas 414 S.W.2d 914 family. We find the evidence for dam County Appraisal (Tex.1967); Willacy ages factually sufficient for libel and slan District Supply v. North Alamo Water Appellant’s point twenty-four der. error Corp., (Tex.App S.W.2d —Cor- damage related to the issue is overruled. Here, n.r.e.). pus Christi writ ref’d response point twenty-five, it is deprivation action for relied on his exemplary damages well-settled that may privacy petition grievances be allowed a case where defamation attorney’s as the basis for his fees. Hav- party defamed establishes existence of ing judgment court’s reversed the trial support or wanton wilful act sufficient to causes, those we must reverse the award finding of malice. British OverseasAir of attorney’s Appellant’s fees as well. ways Corp. Houston, v. Tours & Travel of twenty-sixth of error is point sustained. Inc., (Tex.Civ. App.— n.r.e.). Houston writ ref'd [1st Dist.] twenty-one Point of error asserts replete The record is with evidence indicat allowing appellee an abuse of discretion ing the falsity allegations contained to call two witnesses who were not named appellant Additionally, Smith’s memo. appellee’s as witnesses in answer to inter was testimony there as follows: rogatories. testimony The witnesses’ (Jacobs’ testimony Smith’s state- only limited instruction the court’s upon learning ment to Jacobs that Jacobs against appellant attorney Smith. talked mayor before the Feb- ruling objection never received a on his ruary meeting.) behalf, testifying witnesses Jacobs’ Moreover, trying ‘I’m keep profes- any this on a and therefore error. waived basis, you bring ques sional and if want to the witnesses in discovered Gonzalez) gutter,’ (Arthur down to the I’m ready go tion and Homer ... Garcia got only gave that route too to trial and keep prior ... ‘You’ve in two weeks appellants language publish- names a trial. is false and or their week before uttered express experts they were not ed with malice. The witnesses relevant to the be- testified to facts issues communication, Any oral or writ- jury. They employees had been fore the ten, uttered or in the due appellant the di- Town worked under judicial of a proceeding course is abso- time of appellant rection of Smith at the privileged lutely and cannot constitute The trial complained damages activities. the basis of a civil in for action continu- court offered the defense a week’s falsity or of the slander libel. The state- All appellants ance which the refused. ment or the malice of the utterer is im- parties opportunity depose material, had an nonliability pre- and the rule of prior witnesses to trial. The record shows though vails even the statement was not good testimony relevant, reason to allow the of the pertinent and material to the find witnesses. We no abuse of discretion in issues involved the case. allowing testimony, in overrule their rule that communications ut- appellants’ twenty-first point. or published tered in the course judicial proceeding absolutely privi- judgment of the trial is RE- court applies leged, proceedings before exec- VERSED RENDERED officers, and and commis- utive boards against take-nothing Town of South quasi-judicial pow- which sions exercise Island; against appellant Padre and as ers. judgment is REFORMED $74,000 plus recover costs court privilege Absolute is founded against appellant Smith. theory good accomplishes on the that the it protecting rights general pub of the outweighs any wrong injury lic or which ON OPINION MOTION FOR may particular result individual. Rea REHEARING protects gan, 166 S.W.2d at It SEERDEN, Justice. public shielding responsible by interest Appellant, Johnny Smith, P. a mo- filed government officials harassment rehearing tion for asserting origi- that the hazards of or ill- inevitable vindictive case, opinion nal holding this him liable damage brought suits on account founded actual of actions taken the exercise of their damages, exemplary He error. ar- responsibilities, though, at official even gues, theories, addition other that he times, may result in individual citizens is entitled to absolute immunity liabil- pecuniary op suffering loss as a result of ity for any statements him in made pressive by govern or malicious actions appellee’s termination, connection with re- Matteo, Barr ment officials. U.S. gardless of whether statements were 564, 565, L.Ed.2d S.Ct. regardless truthful and of the motive or (1959). later The likelihood of this event malice in which statements were made. likely seems less occur because requirement or the utterance state In Reagan v. Guardian Insurance Life judicial quasi-judicial ment made in a be Co., 140 Tex. proceeding potentially injured where the (1942), the Supreme Court set certain out party reply and defend has regarding well-settled rules the doctrine himself. privilege: absolute absolutely Smith, official, 1.An privileged Appellant, public communi- was a which, cation is one for memo and he made reason and the statements upon made, occasion which it public is no reme- another official. The concerned dy exists in a performance civil action for libel or made in statements were Manager. slander. way, Stated another where duties as While there is an absolute privilege, present no action the Board of Jacobs was at in damages language, written, meeting oral or Aldermen’s lie; though will and this is firing, true even the Board discussed Jacob's when 144 given memo February governmental

Smith’s of 3 was to employees ais function for day prepared the it and con- city which the itself is immune from suits charges the complaints being tained and In that that, libel. case we light held made Smith. It is clear that this governmental of such immunity, the trial prepared memo was use when Jacobs’ disregarded court should have jury an- appeared on February before the Board finding city swers that the had its libeled meeting February The Board’s 16 employee private and facts it, proceedings leading including and the to about him which were defamatory as im- meeting February the of as well as the material. The extension of privi- absolute preparation February 3, of the memo of lege during judicial to utterances quasi- or quasi-judicial proceeding constituted judicial proceedings gives to individuals the meaning the rule within third as set same and latitude freedom of expression in Reagan, out S.W.2d at during proceedings such of the doctrine quasi-judicial The nature and incidence of governmental immunity gives gov- powers were set out in Parker v. Hol body ernmental itself. brook, (Tex.App.— S.W.2d n.r.e.): Houston writ ref’d [1st Dist.] We hold that the actions appel of quasi-judicial power A been de- has lant, Smith, P. Johnny City Manager of the power duty scribed as the to or investi- Island, Sought of Padre Town connection gate and to draw conclusions such investigation with the and evaluation of the investigation. powers Id. six At least job performance appellee, Fred R. Ja have comprising been delineated as the cobs, Town, employee an of the same judicial function and would be indicative writings, including the statements and the of whether a acting commission in a memo of protected were quasi-judicial, merely or and administra- privilege and absolute the trial tive, 1) capacity: to power exercise granting judgment against court erred in judgment discretion; 2) power on the Smith based answers to issues hear and determine or to ascertain facts through The issues should have decide; 3) power binding to make disregarded. Appellant point been judgments; 4) power orders and twenty of error number is sustained. personal rights affect the property Everything original opinion contrary our persons; 5) private power to examine witnesses, what is stated herein is withdrawn and compel the attendance witnesses, disregarded. litigation should be to hear the hearing; 6) power issues judgment of the trial court is RE- impose penalties, enforce decisions or RENDERED VERSED and (cites omitted). nothing. take An need agency administrative not have all of powers above be con- BENAVIDES, J., participating. quasi-judicial, certainly sidered but has, powers more of these it the more

clearly is quasi-judicial in the exercise powers. its case,

In this Town’s Board Aider-

men had all of powers enumerated possible with the exception

above

power compel attendance witness-

es. Court, This the recent case Moreau,

Dallas v. S.W.2d

(Tex.App. Corpus Christi writ ref'd — n.r.e.), hiring firing held that city

Case Details

Case Name: Town of South Padre Island v. Jacobs

Court Name: Court of Appeals of Texas

Date Published: Jul 6, 1987

Citation: 736 S.W.2d 134

Docket Number: 13-85-357-CV

Court Abbreviation: Tex. App.