Blair B. McCall, Appellant v. Hays County Constable Precinct Three, Appellee

McCall Case

BACKGROUND

This appeal arises out of McCall's September 14, 2015 petition to correct his "general discharge," as stated on the Constable's F-5 Report filed with the Texas Commission on Law Enforcement (the Commission), to "honorable discharge."See generallyTex. Occ. Code 1701.452(describing "[g]enerally discharged" as separation related to disciplinary investigation of conduct not included in definition of dishonorably discharged or documented performance problem and "[h]onorably discharged" as separation while in good standing and not because of disciplinary actions or documented performance problem),.4525(providing for petition and hearing for correction of report);37 Tex. Admin. Code 217.8. After McCall filed his petition, the Commission referred it to SOAH for a hearing.[*3]SeeTex. Occ. Code 1701.4525(a);37 Tex. Admin. Code 217.8(c). The SOAH ALJ conducted the F-5 Hearing on June 13, 2016. At the F-5 Hearing, the Constable presented three witnesses: McCall, Constable Darrell Ayres, and Chief Deputy Ray Helm. McCall was the only witness who testified on his behalf. The relevant evidence from the F-5 Hearing showed as follows.

McCall began working with the Constable on April 14, 2015, as a volunteer reserve officer. On August 24, 2015, the Constable issued the F-5 Report stating that McCall was separated as of that date and received a general discharge. At the time of his separation, McCall was still within his 180-day probation period, having only worked for the Constable for approximately four months.2The evidence at the hearing showed that a dinner at a certain restaurant on July 5, 2015, with McCall's fiance Vivian Sanchez and his parents David and Pam triggered the events that led to his termination.

McCall had been dating Sanchez since February 2014, when Sanchez was 18. In March or April 2015, she and McCall began living together. McCall was then 26 and Sanchez 19, and they were engaged to be married in August 2016. McCall had been going to the same restaurant with his family most Sunday evenings "for[*4]years," and Sanchez would accompany them. McCall testified that Sanchez would "[n]ot always" have alcohol at the dinners, but he "assume[d] that most times she did," and she would "go up to the bar and get it herself, order it at the table." He also explained that he believed his mother Pam had authority to let Sanchez drink alcohol under the doctrine of in loco parentis and therefore he never objected to her drinking in his mother's presence. But when asked if he provided alcohol to Sanchez outside of his mother's presence, he invoked hisFifth Amendmentprivilege and declined to answer.

McCall testified that on July 5, he did not see Sanchez drinking alcohol during the meal, but he realized when they walked out of the restaurant to get in his truck and go home that "she must've had a lot to drink." When asked what occurred after Sanchez and McCall got home, McCall stated that he was "gonna take theFifth Amendmenton anything related to the criminalcase" and that "[a]nything related from the time that we left [the restaurant] to the time of July the 9th when I was contacted, I'm not gonna answer any questions about that." McCall testified that on July 9 Detective Mark Opielacalledhim, identified himself as[*5]a detective with the Hays County Sheriff's Office, and wanted to talk about something that had happened at McCall's house. But "Detective Opiela gave [McCall] no reason to believe [he was] under investigation at that time" and never mentioned him as being a suspect in any crime. Nevertheless, McCall told Detective Opiela that "you have to talk to my attorney." McCall thencalledhis lawyer but admitted that he did not immediatelycallthe Constable.

Deputy Helm testified that he received acallfrom Constable Ayers on July 10. According to Deputy Helm, Constable Ayers said he had learned from Detective Opiela that McCall was being investigated for assault/family violence and asked Deputy Helm tocallMcCall. Deputy Helm made threecallsto McCall that day. Although Deputy Helm testified that Detective Opiela had told him that he waited 24 hours from the time he contacted McCall to contact the Constable's office, McCall claimed that Deputy Helm's initialcallto him occurred only two to three hours after Detective OpielacalledMcCall on July 9.3

In Deputy Helm's initialcallto McCall, McCall told him that he was being investigated for assault/family violence but that "it's gonna get[*6]cleaned up." Deputy Helm then said he would talk with Detective Opiela. Detective Opiela told Deputy Helm that Sanchez had filed a complaint for assault/family violence a day or two after the July 5 dinner. Realizing it was a serious matter, Deputy HelmcalledConstable Ayers, and they concluded that McCall should be placed on administrative leave and return his ID and badge until the issue was cleared. Deputy Helm thencalledMcCall a second time that day and said that he had received "acallfrom Detective Mark Opiela with the Sheriff's Office investigating -- you're a suspect in an assault and so until everything is cleared up we're gonna have to put you on administrative leave" and that "[w]e're gonna be looking into the -- the policy and procedure manuals and stay in contact with me." Deputy Helm testified that he asked McCall to bring his ID and badge back at that time and that McCall said he would bring them in that week. McCall claimed he did not recall being asked to turn in his equipment prior to his termination on August 24. Deputy Helm testified that he asked McCall for the equipment two or three times from then to the separation, but it was never returned until August[*7]25.

After returning home from the office on July 10, Deputy Helm againcalledMcCall to see what happened. Deputy Helm testified that McCall told him that Sanchez got intoxicated at the July 5 dinner at the restaurant; that after he and Sanchez returned home, they got into an altercation where she fell and hit her head on the truck; that she then barricaded herself in the house and Pam McCall tried to give her some alcohol to calm her down; and that someone in a vehicle arrived and Sanchez got in the vehicle and went away. McCall also testified that Sanchez left the house because he broke up with her, kicked her out, and said "[p]ack your shit and leave." Later that week, Deputy Helm and Constable Ayers were discussing Deputy Helm's phonecallwith McCall when Constable Ayers raised the point that Sanchez is "under age." Constable Ayers reached out to Sanchez, and Sanchez confirmed that "she was intoxicated on that [July 5] night and, in fact, on several occasions [McCall] had furnished her alcohol."

In late August, Deputy Helm had another conversation with Detective Opiela in which Detective Opiela told him that assault/family violence charges were being filed against McCall and that[*8]his arrest was imminent. Constable Ayers and Deputy Helm met and considered what to do. Deputy Helm said, "Well, we do have some policy violations" and that they should look through the F-5 and separate McCall "if all of this is -- is getting stacked up." Constable Ayers testified that the basis for the decision was that "there were several policy violations," including McCall "allowing or [] not interfering . . . with a minor being in possession of alcohol and a minor consuming of alcohol" and McCall not returning his equipment when Deputy Helm had requested. Because of the policy violations, Constable Ayers and Deputy Helm concluded that "a general discharge was appropriate," rather than an honorable discharge.

On August 24, Deputy HelmcalledMcCall and told him that he was being let go with a general discharge. On August 25, Deputy Helm asked McCall to come in because he needed to give him the F-5 Report. McCall texted him back and said he had returned all the equipment. Helm then responded that he would fax or mail the F-5 Report to McCall, which he did. Deputy Helm also prepared another report summarizing his investigation of the matter and identifying the ways McCall violated[*9]the rules of conduct applicable to all peace officers employed by the Constable (the Department Guidelines), including not immediately disclosing to the Constable's office that Detective Opiela had contacted him and furnishing or allowing others to furnish alcohol to Sanchez.

After the F-5 Hearing, the ALJ concluded that "the F-5 Report should not be changed" because:

By providing Ms. Sanchez with alcohol and failing to prevent others from providing her with alcohol, Mr. McCall: (1) failed to abide by all laws, in violation of Department Guideline 2.1; and (2) failed to comply with "reasonable rules of good conduct and behavior" and engaged in acts "tending to bring reproach or discredit upon" himself and the Constable, in violation of Department Guideline 3.1. Moreover, by refusing to disclose the facts of the night of July 5, 2015, to Detective Opiela, he failed to report all crimes and concealed the facts of such crimes, in violation of Department Guideline 4.12.

McCall appealed the Order, and the district court affirmed. McCall now appeals to this Court.

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