CAUSE NO. THE CITY OF AUSTIN, TEXAS IN THE DISTRICT COURT OF VS. TRAVIS COUNTY, TEXAS NEDITH TORRES JUDICIAL DISTRICT PLAINTIFF S ORIGINAL PETITION

Transcription

1 CAUSE NO. THE CITY OF AUSTIN, TEXAS IN THE DISTRICT COURT OF VS. TRAVIS COUNTY, TEXAS NEDITH TORRES JUDICIAL DISTRICT PLAINTIFF S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES THE CITY OF AUSTIN, Plaintiff, by and through the City Attorney, complaining of Defendant, Nedith Torres, and for cause of action would respectfully show the Court as follows: I. INTRODUCTION 1. Plaintiff City of Austin, is appealing the decision of a hearing examiner regarding the disciplinary suspension of Defendant Torres. II. DISCOVERY CONTROL PLAN 2. In accordance with TEX. R. CIV. P , Plaintiff states its intent that discovery in this cause be conducted under Level 2, as provided by TEX. R. CIV. P III. THE PARTIES 3. Plaintiff is The City of Austin ( City ), a municipal corporation, appearing and proceeding by and through the City Attorney.

2 4. Defendant, Nedith Torres ( Torres ) is a City of Austin Police Officer. His attorney, Tom Stribling, has agreed to accept service on Defendant Torres behalf. Mr. Stribling s address is: 400 W. 14th Street, Suite 200, Austin, Texas IV. JURISDICTION AND VENUE 5. This cause of action involves a hearing examiner s award issued pursuant to statutory Civil Service Law, Chapter 143 of the Texas Local Government Code (hereafter referred to as LGC ). Because the City of Austin Police Department is located in Travis County, Texas; jurisdiction and venue are proper in Travis County District Court pursuant to Section (j) of the LGC. Department. V. FACTUAL BACKGROUND 6. Defendant Torres is a commissioned police officer for the City of Austin Police 7. While off-duty, on April 28, 2007, Defendant Torres assaulted his wife, Sandra Torres, at their home in Hutto, Williamson County, Texas. 8. Sandra Torres reported the assault to the Austin Police Department, which documented the assault in offense report number , entitled Assault with Injury- Family Violence. On May 1, 2007, this matter was referred to the Austin Police Department's Internal Affairs Division to investigate whether Defendant Torres violated any City or Police Department policies. 9. Since the assault occurred in Williamson County, the matter was also referred to the Williamson County Sherriff's Office for a criminal investigation. On May 4, 2007, the Williamson County Sherriff's Office issued an arrest warrant for Defendant Torres for Assault Page 2 of 6

3 with Injury-Family Violence. On August 11, 2008, Defendant Torres pled guilty to a Class C Assault. 10. The City of Austin Chief of Police, Art Acevedo, instituted a Disciplinary Matrix on July 14, 2008, which provides that the first occurrence for Dishonesty - False Official Statements, will result in indefinite suspension. Austin Police Department General Order A109c.07: Discipline Process, provides that "Any statement or omission of pertinent or material information which represents facts or misleads others will be considered a false official statement and will result in indefinite suspension". 11. On August 25, 2008, Chief Acevedo convened a Dismissal Review Hearing and, after hearing and considering the evidence, on August 26, 2008, indefinitely suspended Defendant Torres for the following violations of the Austin Police Department's General Orders, Policies and Procedures: A201.01(C)(1): Code of Conduct: Responsibility to Comply - Penal Code Section 22.01(a)(1): Assault Class A. A201.02(A)(1)(3): Code of Conduct: Individual Responsibilities: Honesty A201.02(B)(1): Code of Conduct: Individual Responsibilities: Acts Bringing Discredit Upon the Department. 12. On September 3, 2008, Defendant Torres filed a timely appeal with the Director of the City of Austin Fire Fighters' and Police Officers Civil Service Commission seeking an appeal before an Independent Third Party Hearing Examiner pursuant to LGC Section (b). The appeal hearing took place on December 7-8, 2009 before Hearing Examiner John Barnard. 13. On February 17, 2010, the Hearing Examiner issued his written award sustaining all three charges from the Dismissal Review Hearing, including the finding that Defendant Torres did commit a Class A Assault and was dishonest; but reinstating Defendant Torres with Page 3 of 6

4 his same rank and seniority, with only a written reprimand to be placed in his file. See Exhibit A. VI. CAUSE OF ACTION 14. The City of Austin brings this appeal pursuant to LGC Section (j). 15. This appeal is timely, as it is filed within ten days of receipt of the Hearing Examiner s February 17, 2010 written award. See Local government Code ; City of Houston v. Clark, 197 S.W.3d 314 (Tex. 2006); City of Pasadena v. Smith, 292 S.W.3d 14 (Tex. 2009). 16. Section (j) provides that a district court may hear an appeal of a hearing examiner s award on the grounds that the panel was without jurisdiction, exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. Plaintiff City would show the Court that the award with regard to Defendant Torres reinstatement exceeds the Hearing Examiner s jurisdiction. By reinstating a police officer who has been affirmed on appeal to have physically assaulted and injured his wife and repeatedly lied about it, including while under oath in official proceedings, the Hearing Examiner exceeded his jurisdiction. VII. REQUEST FOR ATTORNEY S FEES 16. Plaintiff City would show the Court that it was obligated to seek the legal services of the City Attorney's Office in pursuit of this appeal, and that an award of attorneys' fees to Plaintiff under the circumstances presented would be equitable and just. Plaintiff is entitled to its reasonable attorneys' fees under the provisions of Section (c) of the Texas Local Government Code. Page 4 of 6

5 VIII. PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that the Defendant be cited to appear and answer herein, and that on final hearing, the Plaintiff have judgment as follows: 1. Vacating the following provisions of the Hearing Examiner s Award; i. The grievant, Sergeant Nedith Torres is to be reinstated with this same rank of Sergeant, and his seniority is to also be reinstated. ii. There is to be no award of any backpay or benefits. Such applicable benefits are to resume upon his reinstatement. iii. In addition, he is to have a written reprimand placed on his file, along with this suspension. 2. For reasonable and necessary attorney s fees; 3. Costs of Court, and 4. For such other and further relief to which the Plaintiff may be justly entitled. RESPECTFULLY SUBMITTED, DAVID ALLAN SMITH, CITY ATTORNEY ANNE L. MORGAN, CHIEF, LITIGATION DIVISION /s/ Meitra Farhadi MEITRA FARHADI State Bar No Assistant City Attorney City of Austin Law Department P. O. Box 1546 Austin, Texas (512) (512) [FAX] meitra.farhadi@ci.austin.tx.us ATTORNEYS FOR PLAINTIFF Page 5 of 6

6 CERTIFICATE OF SERVICE This is to certify that I have served a copy of the foregoing on all parties, or their attorneys of record, in compliance with the Texas Rules of Civil Procedure, this 26 th day of February, 2010, as follows: Via e-service: Tom Stribling 400 West 14 th Street, Suite 200 Austin, Texas /s/ Meitra Farhadi MEITRA FARHADI Page 6 of 6