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 Read your group’s assigned case, summarize it and what you learned from the case and how you would apply it in a management situation.    

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Date and Time: Monday, March 27, 2023 7:36:00PM EDT

Job Number: 193573748

Document (1)

1. McCall v. Hays Cty. Constable Precinct Three, 2020 Tex. App. LEXIS 4095

Client/Matter: -None-

Search Terms: 2020 Tex.App. LEXIS 4095

Search Type: Natural Language

As of: March 27, 2023 11:36 PM Z

McCall v. Hays Cty. Constable Precinct Three

Court of Appeals of Texas, Third District, Austin

May 21, 2020, Filed

NO. 03-18-00355-CV

2020 Tex. App. LEXIS 4095 *; 2020 WL 2739868

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

Subsequent History: Related proceeding at McCall v.
State, 2021 Tex. App. LEXIS 126 (Tex. App. Austin,
Jan. 8, 2021)

Prior History: [*1] FROM THE 261ST DISTRICT

Disposition: Affirmed.

Core Terms

alcohol, termination, drinking, loco parentis, restaurant,
hearsay, general discharge, intoxicated, dinner, fail to
prevent, discharged, termination of employment,
assault, contest, preponderance of evidence, substantial
evidence, happened, alleged misconduct, conversation,
investigated, violations, objected, talk, honorable
discharge, alcoholic beverage, disciplinary, licensed,

Counsel: For Appellant: Mr. David B. McCall, Ms.
Kindra Ann Johnson, Mr. Tom C. McCall, Gray Becker,
PC, Austin TX.

For Appellee: Mr. Eric A. Johnston, Mr. Michael A.
Shaunessy, Ms. Brytne Kitchin, McGinnis Lochridge,
LLP, Austin TX.

Judges: Before Justices Goodwin, Baker, and Smith.

Opinion by: Melissa Goodwin



In this appeal, Blair McCall, a licensed peace officer,
seeks judicial review of the Decision and Order (Order)
of the Administrative Law Judge (ALJ) with the State
Office of Administrative Hearings (SOAH) on his petition
to correct his “general discharge”—as stated in the
employment termination report (the F-5 Report)—to an
“honorable discharge” from his position as a volunteer
reserve deputy with the Hays County Constable
Precinct Three (Constable). See Tex. Occ. Code §§
1701.452 (requiring employment termination report
stating whether license holder was “honorably
discharged, generally discharged, or dishonorably
discharged” for licensed person who is terminated or
separated from law enforcement agency), .4525
(providing petition process for contesting information
contained in employment termination report); 37 Tex.
Admin. Code § 217.8 (Tex. Comm’n on Law
Enforcement, Contesting an Employment Termination
Report) (same). Following a hearing (the F-5 Hearing),
the ALJ concluded in the Order that the Constable had
established by a preponderance [*2] of evidence that
McCall’s termination was appropriately categorized as a
“general discharge” and should not be changed to
“honorable discharge,” and the district court affirmed.
See Tex. Occ. Code § 1701.4525(d) (providing that
proceeding to contest information in employment
termination report is contested case under chapter 2001
of Texas Government Code), (e) (setting preponderance
of evidence burden); Tex. Gov’t Code § 2001.171
(providing for judicial review). For the following reasons,
we also affirm.


1 Because the parties are familiar with the facts of the case
and its procedural history, we recite them only as necessary to
advise the parties of the Court’s decision and the basic
reasons for it. See Tex. R. App. P. 47.1, 47.4.

Page 2 of 9

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 generally Tex. 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] See
Tex. 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.2 The evidence at the hearing showed that a
dinner at a certain restaurant on July 5, 2015, with
McCall’s fiancée 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

2 Under Hays County Policy 2.17, “[t]he first 180 days of
employment with Hays County is considered a probation
period both for new employees and rehires,” and “[i]f at any
time during this period, the employee is unable to adapt
successfully to the requirements of the position, the
department or Hays County, employment will be terminated

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 his Fifth Amendment privilege and declined to

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 the Fifth
Amendment on anything related to the criminal case”
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
Opiela called him, 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 then called his
lawyer but admitted that he did not immediately call the

Deputy Helm testified that he received a call from
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 to call
McCall. Deputy Helm made three calls to 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 initial call to
him occurred only two to three hours after Detective
Opiela called McCall on July 9.3

In Deputy Helm’s initial call to McCall, McCall told him

3 McCall produced his cell phone records that showed
incoming calls received on July 9, but the phone records listed
the call as coming from McCall’s own cell phone number, not
from the Constable’s office. McCall explained that he had
“add[ed] an iPad to a data blend” with his cell phone account
so that when he receives a call “it shows up as [McCall’s]
telephone number.”

2020 Tex. App. LEXIS 4095, *2

Page 3 of 9

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 Helm called Constable 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 then called McCall
a second time that day and said that he had received “a
call from 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]

After returning home from the office on July 10, Deputy
Helm again called McCall 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 phone call with 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 Helm called McCall 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.


Our review of the ALJ’s Order is a substantial evidence
review governed by section 2001.174 of the Texas
Administrative Procedure Act [*10] . See Tex. Occ.
Code § 1701.4525(d) (providing that proceeding to
contest information in employment termination report is
contested case under chapter 2001, Texas Government

2020 Tex. App. LEXIS 4095, *5

Page 4 of 9

Code); Tex. Gov’t Code § 2001.174 (setting forth
substantial evidence review standard); see also Stacks
v. Burnet Cty. Sheriff’s Office, 565 S.W.3d 860, 865
(Tex. App.—Austin 2018, no pet.) (applying substantial
evidence standard of review); City of Rice v. Texas
Comm’n on Law Enf’t Officer Standards & Educ., No.
03-11-00047-CV, 2013 Tex. App. LEXIS 7551, 2013 WL
3186194, at *2 (Tex. App.—Austin June 21, 2013, no
pet.) (mem. op.) (describing substantial evidence
review). This standard requires that we reverse or
remand a case for further proceedings “if substantial
rights of the appellant have been prejudiced because
the administrative findings, inferences, conclusions, or
decisions” were made through unlawful procedure; are
affected by other error of law; are not reasonably
supported by substantial evidence considering the
reliable and probative evidence in the record as a
whole; or are arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise of
discretion, among other things. Tex. Gov’t Code §
2001.174(2). We presume that the administrative
decision is valid and supported by substantial evidence,
and the complaining party bears the burden of showing
otherwise. City of Rice, 2013 Tex. App. LEXIS 7551,
2013 WL 3186194, at *2 (citing Sanchez v. Texas State
Bd. of Med. Exam’rs, 229 S.W.3d 498, 510 (Tex. App.—
Austin 2007, no pet.)). In reviewing the decision, we are
concerned with the reasonableness of the administrative
order, not its correctness. [*11] Id. (citing State v.
Public Util. Comm’n, 883 S.W.2d 190, 203 (Tex. 1994)).
With this standard in mind, we turn to the parties’


On appeal, McCall raises eight issues. In his first four
issues, McCall asserts that the ALJ and the district court
should have considered the Constable’s alleged
violations of chapter 614 of the Texas Government
Code, which set forth procedures for a termination
based on a complaint. In his fifth issue, McCall
complains that the Constable raised additional grounds
for McCall’s general discharge at the F-5 Hearing, other
than the original two grounds initially provided to McCall.
In his sixth issue, McCall challenges the ALJ’s reliance
on hearsay evidence. In his seventh issue, McCall
argues that his mother was acting in loco parentis to
Sanchez, and therefore there was no violation of section
106.06 of the Texas Alcoholic Beverage Code. In his
final issue, McCall raises a substantial evidence
challenge to the ALJ’s findings of fact.

Although the Constable raised multiple grounds for the
general discharge, we consider only the ground that we
conclude is dispositive: that McCall, in violation of the
Department Guidelines, either provided or failed to
prevent others in his presence from providing alcoholic
beverages to his girlfriend Sanchez, who was
under [*12] twenty-one years old.4See Tex. R. App. P.
47.1, 47.4. We begin with the legal question of whether
the doctrine of in loco parentis permitted McCall’s
mother to authorize Sanchez’s drinking when McCall’s
mother was present. We then turn to McCall’s
substantial evidence challenge and consider whether
substantial evidence supports the ALJ’s finding. Finally,
we consider McCall’s issues related to chapter 614 of
the Texas Government Code.

In Loco Parentis

Under section 106.06 of the Texas Alcoholic Beverage
Code, a person commits a misdemeanor offense if that
person “purchases an alcoholic beverage for or gives . .
. an alcoholic beverage to a minor,” statutorily defined
as a person under 21 years of age. Tex. Alco. Bev.
Code §§ 106.01, .06(a), (c). However, a person may
provide alcohol to a minor if that person is “the minor’s
adult parent, guardian, or spouse, or an adult in whose
custody the minor has been committed by a court, and
is visibly present when the minor possesses or
consumes the alcoholic beverage.” Id. § 106.06(b)(1).

At the hearing, McCall admitted that his mother Pam
McCall is not related to Sanchez as her natural or
adopted mother, a guardian appointed by a court of law,
or an adult in whose custody Sanchez has been
committed by a court. Nevertheless, in his briefing and
at the hearing, McCall argued [*13] that his mother has
the same rights as Sanchez’s “adult parent[s]” for

4 The other grounds raised at the hearing include McCall’s
failures (1) to promptly report the alleged assault on Sanchez,
(2) to report contacts with law enforcement officers, and (3) to
bring in his equipment when requested. Because we do not
consider these other grounds, we do not address McCall’s fifth
issue that concerned the addition of new grounds at the
hearing. McCall also asserts in his fifth issue that the
Constable should have identified the ground that he “furnished
Sanchez alcohol on multiple other occasions” than July 5,
2015. McCall’s concern as to this ground in his fifth issue,
however, is that chapter 614 of the Texas Government Code
required disclosure of this ground in a particular manner to
McCall. But, as discussed below, chapter 614 does not apply
to this specific ground.

2020 Tex. App. LEXIS 4095, *10

Page 5 of 9

purposes of section 106.06 due to the doctrine of in loco
parentis. McCall testified that the doctrine applies
because his mother provided a place for Sanchez to
live; assisted her with doctor visits, driving lessons,
food, clothing, and education; was referred to as “Mom”
in public by Sanchez; was the confidante for Sanchez’s
confidential medical information; and attended
Sanchez’s medical examinations with her. Thus, McCall
contended that because McCall’s mother was present at
the dinners where alcohol was provided to Sanchez, no
violation of the Texas Alcoholic Beverage Code
occurred. The ALJ, however, concluded that “[t]he
common law doctrine of in loco parentis is not relevant
to the determination of who may legally provide alcohol
to a person younger than 21.”

“In loco parentis” means “in the place of the parent,” and
the doctrine “generally refers to a person in the role of a
parent who assumes the obligations incident to the
parental relationship, though without the formality of a
legal adoption.” McCullough v. Godwin, 214 S.W.3d
793, 807 (Tex. App.—Tyler 2007, no pet.). The doctrine
has had a long life and been applied in various common
law and statutory contexts. See, e.g., Tex. Penal Code §
9.61(a) (providing justification [*14] defense for actor in
loco parentis to child who uses non-deadly force against
child younger than 18 years); Schrimpf v. Settegast, 36
Tex. 296, 302-03 (1872) (explaining in loco parentis
doctrine); Cunningham v. Ansorena-Cunningham, No.
03-08-00493-CV, 2009 Tex. App. LEXIS 7162, 2009 WL
2902718, at *3 n.2 (Tex. App.—Austin Aug. 26, 2009,
no pet.) (mem. op.) (citing cases applying doctrine in
various contexts). But McCall does not cite any
authority—nor have we found any—applying the
doctrine to section 106.06 of the Texas Alcoholic
Beverage Code.5

Even if the doctrine did apply to section 106.06,
McCall’s mother would not be in loco parentis to
Sanchez given the facts here. In Texas, “[t]he duty of a
parent to support his or her child exists while the child is

5 In the context of the Texas Wrongful Death statute, which
provides a cause of action “for the exclusive benefit of the
surviving spouse, children, and parents of the deceased,” Tex.
Civ. Prac. & Rem. Code § 71.004(a), Texas courts have
consistently held that the statutory word “parents” does not
incorporate a person standing in loco parentis for purposes of
a wrongful death action. See, e.g., Davis v. Bills, 444 S.W.3d
752, 758 (Tex. App.—El Paso 2014, no pet.); Robinson v.
Chiarello, 806 S.W.2d 304, 310 (Tex. App.—Fort Worth 1991,
writ denied); Taylor v. Parr, 678 S.W.2d 527, 529 (Tex. App.—
Houston [14th Dist.] 1984, writ ref’d n.r.e.)).

an unemancipated minor and continues as long as the
child is fully enrolled in a secondary school in a program
leading toward a high school diploma.” Tex. Fam. Code
§ 151.001(b). For purposes of the Texas Family Code,
“minor” is generally defined as a person under eighteen
years old. Id. § 101.003(a). It is undisputed that
Sanchez was eighteen or older at all relevant times and
no longer enrolled in a secondary school—in fact,
McCall testified that they did not start dating until
Sanchez was eighteen and that his mother was helping
her with paying for college courses. All acts committed
by McCall’s mother that McCall construes as assuming
the parental obligations occurred [*15] after any
parental duty to support Sanchez had expired.
Accordingly, McCall’s mother did not assume any
parental obligations, duties, or responsibilities under law
towards Sanchez. On this record, no in loco parentis
relationship could have existed between Sanchez and
McCall’s mother. See Coons-Andersen v. Andersen,
104 S.W.3d 630, 635 (Tex. App.—Dallas 2003, no pet.)
(“The in loco parentis relationship arises when a non-
parent assumes the duties and responsibilities of a
parent and normally occurs when the parent is unable or
unwilling to care for the child.” (emphasis added)). We
overrule McCall’s seventh issue.

Substantial Evidence Challenge

Having concluded that the doctrine of in loco parentis
does not apply here, we turn to McCall’s substantial
evidence challenge. In the Order, the ALJ made the
following relevant findings of fact:

11. Mr. McCall was aware of Ms. Sanchez’s age,
and that she was not of legal age to drink alcohol.
12. Over the period of several months, it was a
regular practice for Mr. McCall, his parents David
and Pam McCall, and Ms. Sanchez to eat out on
Sunday evenings, typically at [a certain] restaurant
in Austin, Texas.

13. During these dinners, Ms. Sanchez would often
drink alcohol in the presence of Mr. McCall and his
parents. The alcohol [*16] would variously be
provided to Ms. Sanchez by Mr. McCall and his
parents. Mr. McCall never intervened to prevent
Ms. Sanchez from drinking alcohol at these dinners.
14. On Sunday, July 5, 2015, Mr. McCall, his
parents, and Ms. Sanchez were at their usual
Sunday dinner at [the restaurant]. Mr. McCall
and/or his parents provided enough alcohol to Ms.
Sanchez that she became drunk.
21. Sometime after July 10, Mr. McCall informed

2020 Tex. App. LEXIS 4095, *13

Page 6 of 9

the Constable that Ms. Sanchez had gotten drunk
during their July 5, 2015 dinner and then the two of
them had gotten into a fight. The Constable also
learned that Ms. Sanchez had been below the legal
drinking age at the time.
22. By providing Ms. Sanchez with alcohol on
multiple occasions, and by failing to prevent others
from providing her with alcohol on multiple
occasions, Mr. McCall: (1) failed to abide by all
laws, in violation of [the Department Guidelines],
specifically 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

25. The Constable terminated Mr. McCall’s
employment [*17] because he violated multiple
Department Guidelines.

From these findings of fact, the ALJ concluded, “The
Constable proved that Mr. McCall’s termination is
appropriately categorized as a general discharge,” and,
“The F-5 Report for Mr. McCall should not be changed.”

The statute defines “[g]enerally discharged” to mean, as
relevant here, “a license holder who” “was terminated by
. . . a law enforcement agency and the separation was
related to a disciplinary investigation of conduct that is
not included in the definition of dishonorably
discharged.” Tex. Occ. Code § 1701.452(b)(2)(A). At the
F-5 Hearing, Constable Ayers testified that “[t]he basis
for the [termination] decision was there were several
policy violations,” including McCall “allowing or of not
interfering with a inter- — intervening with a minor being
in possession of alcohol and a minor consuming of
alcohol, which is a violation of the Texas Alcoholic
Code.” He explained when the concern arose:

In Deputy Helms’ conversation with [McCall],
[McCall] had said that [Sanchez] was intoxicated. In
my looking into the policy and procedure, I called

6 Relevant Department Guidelines were admitted into evidence
at the hearing. Department Guidelines 2.1 and 3.1 state,
respectively, “Members of this Department shall abide by the
Laws of the United States and the State of Texas and the
general orders and rules of conduct of the Constable
Department, Precinct No. 3,” and “Members of this
Department, whether on or off duty, shall be governed by the
ordinary and reasonable rules of good conduct and behavior,
and shall not commit any act tending to bring reproach or
discredit upon themselves or the Department.”

her to find out if, indeed she was intoxicated. She
did not want to talk to me initially and it took some
convincing [*18] to get her to talk to me because
she thought I was there to side with [McCall]
against her in a criminal case. I told Ms. Sanchez, “I
am not here to investigate that criminal case. I have
nothing to do with that.” I just wanted to know if she
was intoxicated and, in fact, who furnished her the

In his call with Sanchez, Constable Ayers explained that
Sanchez “said that she was intoxicated on that night
and, in fact, on several occasions [McCall] had
furnished her alcohol.” Finally, Constable Ayers testified:

We did not investigate her complaint about an
assault other than the fact that I wanted to know if
there was — based on the testimony from [McCall]
she was intoxicated that night. My issue was that if
she — she was a minor, knowing she was a minor,
how did she get the alcohol and was it furnished to
her? And that was the only — and that came from
the conversation that Deputy Helm had with
[McCall]. That’s what sparked my interest in the

McCall objected to the admission of Constable Ayers’s
testimony about Sanchez’s comments as hearsay. The
ALJ admitted the evidence of those statements not for
the truth of the matter, but to show that McCall’s
termination was related [*19] to “a disciplinary
investigation of conduct that is not included in the
definition of dishonorably discharged.”7 Tex. Occ. Code
§ 1701.452(b)(2)(A). Thus, Constable Ayers’s testimony
provided evidence that the termination was based on a
disciplinary investigation of misconduct related to
McCall either providing or failing to prevent others from
providing alcohol to Sanchez. We must now determine
whether substantial evidence supported the ALJ’s
findings of fact and conclusion that the Constable met
its burden to demonstrate by a preponderance of the
evidence that this misconduct occurred. See id. §
1701.4525(e); 37 Tex. Admin. Code § 217.8(d)-(e).

7 Following the objection, the Constable’s counsel explained,
“Your Honor, it’s the basis of — of his decision ultimately. This
is an employment case. The basis of [Constable Ayer’s]
decision to give a general discharge is based on what he
heard. Now they can object that it can’t come in for the truth of
the matter asserted but it’s certainly a reasonable basis for him
to consider in making the ultimate decision.” The ALJ clarified
that “you’re saying it wouldn’t be for the truth of the matter
asserted but it would be to justify his actions,” and then
overruled the objection.

2020 Tex. App. LEXIS 4095, *16

Page 7 of 9

McCall claims that the ALJ improperly relied upon
Constable Ayers’s hearsay testimony that was not
admitted for the truth of the matter. However, although
McCall objected to Constable Ayers’s hearsay
testimony, McCall did not object to Deputy Helm’s
earlier testimony at the hearing that “[Sanchez] said that
— she told us that Blair and his mother had given her the
alcohol; furnished it to her” on July 5. Deputy Helm

Well, Constable Ayers had come in and we had
visited about the — what had happened and I told
him what — what [McCall] — me and [McCall] talked
about and he said, “Well, [Sanchez]’s under-age.”
And [*20] I said, “She is?” And he goes, “Yeah.” I
said, “I didn’t even think about that.” So he had
made contact with [Sanchez] to see what had
happened — Vivian Sanchez — what had happened
and she said that [McCall] and — and his mother
had bought her drinks that [July 5] night and she
was — she got intoxicated and went home and the
assault happened. So we went off of what she told
me. I went off what [McCall] had told me; that she
had been drinking. So that tells me obviously he
knows about it. I went — started the investigation
into our policies and — and as we slowly went
through each and every one of them and when we
came to the conclusion of what we were gonna do
and he was still under his 180 days of probation.
We decided to go ahead and — and F5 him on the
general —

Deputy Helm also testified that McCall told him that after
“[he] and his family had went to a restaurant and his
girlfriend or fiancé[e] was intoxicated,” they returned
home and “[Sanchez] had barricaded herself in the
house and they — he said his mother tried to give her
some more alcohol to calm her down.”

Because McCall failed to object to this earlier testimony
from Deputy Helm, there is probative evidence
that [*21] McCall provided Sanchez with alcohol and
failed to prevent his mother from providing Sanchez with
alcohol both on July 5 and at other times. See Tex. R.
Evid. 802 (“Inadmissible hearsay admitted without
objection may not be denied probative value merely
because it is hearsay.”); Los Fresnos Consol. Indep.
Sch. Dist. v. Vazquez, 481 S.W.3d 742, 745 (Tex.
App.—Austin 2015, pet. denied) (considering hearsay
evidence in substantial evidence review and noting that
“[t]he current Texas Rules of Evidence contemplate that
hearsay is evidence but reflect the policy that hearsay is
generally not reliable enough to be admitted as
evidence in proceedings to which the Rules apply”). And

as to what McCall said, even if there were a hearsay
objection, his testimony would be exempt from the
hearsay definition as an admission of a party opponent.
See Tex. R. Evid. 801(e)(2)(A); TXI Transp. Co. v.
Hughes, 306 S.W.3d 230, 241 (Tex. 2010) (“Rule
801(e)(2)(A) provides that a party admission is not
hearsay.”). We therefore overrule McCall’s sixth issue
regarding hearsay.

Additionally, McCall’s own testimony provides further
direct and circumstantial evidence that he failed to
prevent others from providing Sanchez with alcohol.
See In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015)
(orig. proceeding) (clarifying that circumstantial
evidence “is simply indirect evidence that creates an
inference to establish a central fact”). McCall testified
that Sanchez would get alcohol at [*22] the bar or order
it at the table when he and his family were at the
restaurant they frequently visited:

Q: Whenever Ms. Sanchez went with your family to
[that restaurant] she drank alcohol, didn’t she?
A: I would assume that most times she did. She’d
go up to the bar and get it herself, order it at the
table, do whatever she wants. . . .

McCall explained that he told the wait staff at the
restaurant that Pam McCall was Sanchez’s mother, that
he believed “Pam McCall could authorize Ms. Sanchez
to drink,” and that is the reason he had never objected
to her drinking: “When my mother was around that’s
absolutely why I never objected.” McCall also testified:

Q: Okay. Now it’s your contention — well, let me —
let me ask the question — in all of the times that
you’ve been with Vivian Sanchez and your family at
[that restaurant] there was never a single time
where you said she shouldn’t have liquor, she is
underage? Not — that never happened, did it, Mr.
A: No.

As we have discussed above, however, the doctrine of
in loco parentis did not permit McCall’s mother to
authorize Sanchez’s drinking and thus McCall’s
explanation for never objecting fails.

As evidence that he did not provide or [*23] fail to
prevent others from providing Sanchez with alcohol,
McCall relies almost entirely on his own testimony that
he did not see Sanchez drinking the alcohol. Although
he admitted that Sanchez became intoxicated at his
family’s table at the restaurant on July 5, he testified that
he did not see Sanchez drinking alcohol at the event
because “when I’m sitting there at a family dinner in a
large crowded restaurant I don’t pay attention to what
people around me are doing.” He claimed he did not

2020 Tex. App. LEXIS 4095, *19

Page 8 of 9

realize she had been drinking until they were walking
out to his truck to go home and then realized that “wow,
she — she must’ve had a lot to drink” and that she was
“drunk when she got to the truck that evening.”8 But as
to the credibility of this evidence, under the substantial
evidence standard of review, the ALJ is the sole judge
of the weight to be accorded to McCall’s testimony, and
he may accept or reject it in whole or in part. See Lamb
Cty. Elec. Co-op. v. Public Util. Comm’n, 269 S.W.3d
260, 272 (Tex. App.—Austin 2008, pet. denied).

On the record before us, we conclude that the evidence
as a whole is such that reasonable minds could have
reached the conclusion that the ALJ reached in order to
justify its action. See City of Rice, 2013 Tex. App. LEXIS
7551, 2013 WL 3186194, at *2. Substantial evidence
exists to show that McCall provided Sanchez with [*24]
alcohol and failed to prevent others, including his
mother, from providing alcohol to Sanchez both on July
5 and at other times and that this conduct violated the
Department Guidelines. We therefore overrule McCall’s
eighth issue.

Chapter 614 of the Texas Government Code

In his first four issues, McCall raises complaints
regarding chapter 614 of the Texas Government Code.
Under chapter 614, a licensed peace officer cannot be
disciplined based on a “complaint” unless the complaint
is in writing, signed by the complainant, and presented
to the peace officer within a reasonable time, and
termination may not be “based on the subject matter of
the complaint” unless the complaint is investigated and
there is evidence to prove the allegation of misconduct.
Tex. Gov’t Code §§ 614.021-.023; see Colorado County
v. Staff, 510 S.W.3d 435, 438 (Tex. 2017). McCall
claims that the Constable failed to follow chapter 614’s
requirements for his termination, that the ALJ failed to
determine whether the Constable met these
requirements, and that the “evidence of the alleged
misconduct made the basis of these complaints could
not be used by [the ALJ] to justify [McCall’s] adverse

8 McCall also invoked the Fifth Amendment when asked
whether he had provided Sanchez with alcohol at other times.
The parties dispute whether the ALJ could properly make an
adverse inference based on McCall’s invoking the Fifth
Amendment or whether the inference would be mere
speculation. But because we conclude that substantial
evidence exists independent of the adverse inference, we
need not resolve this dispute.

termination classification.”

In the Order, the ALJ noted that McCall has not filed an
action for reinstatement. And [*25] in the hearing on the
petition to correct information in the F-5 Report, the ALJ

The sole question that the ALJ can answer in this
case is whether the preponderance of the evidence
demonstrates that the alleged misconduct which
formed the basis for the Constable’s decision to
classify Mr. McCall’s departure as a general
discharge on the F-5 Report took place; if it does
not, then the only remedy the ALJ can provide is to
change the classification on the F[-]5 Report.

See Tex. Occ. Code § 1701.4525(e) (“In a proceeding
to contest information in an employment termination
report for a report based on alleged misconduct, an
administrative law judge shall determine if the alleged
misconduct occurred by a preponderance of the
evidence regardless of whether the person who is the
subject of the report was terminated or the person
resigned, retired, or separated in lieu of termination. If
the alleged misconduct is not supported by a
preponderance of the evidence, the administrative law
judge shall order the commission to change the
report.”). McCall claims that this “overlook[s]” Colorado
County and that the ALJ and the district court “had
authority and jurisdiction to consider [the Constable’s]
Government Code [*26] violations in reaching their
respective decisions.” However, Colorado County was
an appeal from a summary judgment on a suit for
declaratory, injunctive, and monetary relief and
concerned an administrative action for reinstatement
following a termination decision; it did not speak to an F-
5 hearing. 510 S.W.3d at 440. An F-5 hearing is a
“proceeding to contest information in an employment
termination report,” see Tex. Occ. Code § 1701.4525(d),
not a proceeding to challenge “[d]isciplinary action,” see
Tex. Gov’t Code § 614.023(b); cf. Paske v. Fitzgerald,
499 S.W.3d 465, 469 (Tex. App.—Houston [1st Dist.]
2016, no pet.) (noting that after F-5 hearing, officer filed
distinct claims in court to allege violation of state law
under chapter 614). McCall has not cited—and we have
not found—authority that the ALJ was authorized or
required to determine whether the Constable met
chapter 614’s requirements in the F-5 Hearing for
purposes of challenging “[d]isciplinary action.” And
subsection 1701.4525(e)’s limited grant of authority that
the ALJ “shall determine if the alleged misconduct
occurred by a preponderance of the evidence” is
contrary to McCall’s position that an ALJ may properly
consider and determine a chapter 614 challenge to the

2020 Tex. App. LEXIS 4095, *23

Page 9 of 9

Constable’s “[d]isciplinary action[s]” in an F-5 hearing.
See Tex. Occ. Code § 1701.4525(e).

To the extent McCall is arguing that the ALJ [*27]
should have excluded “all evidence and complaints
against [McCall] that should have been presented to
[McCall] under [chapter] 614,” we conclude that on this
record chapter 614 did not prohibit the admission at the
F-5 Hearing of the evidence that is relevant to the
Constable’s termination of McCall’s employment for
providing or failing to prevent others from providing
Sanchez with alcohol in violation of the Department
Guidelines. As described above, Constable Ayers
testified that what triggered the investigation into
whether McCall provided alcohol to Sanchez was not
Sanchez’s assault complaint, but a conversation
between Deputy Helm and McCall in which McCall said
Sanchez was intoxicated. The relevant evidence
outlined in the preceding sections of this opinion was
not based on a “complaint” governed by chapter 614 but
was based on Deputy Helm’s conversation with McCall,
Constable Ayers’s follow-up phone conversation with
Sanchez, and McCall’s own testimony. See Paske, 499
S.W.3d at 475 (“But every termination of a law
enforcement officer does not necessarily have has its
genesis in a ‘complaint.’ If Subchapter B [of chapter 614]
were meant to apply to every termination of a law
enforcement officer, the [*28] Legislature presumably
would have said so directly.”); see also Colorado
County, 510 S.W.3d at 446 n.39 (citing Paske, 499
S.W.3d at 475). Moreover, the record does not indicate
that Sanchez was making a “complaint” for purposes of
chapter 614—i.e., an “allegation of misconduct” or
“expression of dissatisfaction”—when she responded to
questions from Constable Ayers and confirmed that
McCall had provided her alcohol. See Colorado County,
510 S.W.3d at 449 (concluding that “the word
‘complaint’ ordinarily means an expression of
dissatisfaction, including an allegation made by one
against another”). Accordingly, the relevant evidence
presented at the F-5 Hearing to support McCall’s
violation of the Department Guidelines did not need to
be in a signed writing with a copy provided to McCall to
“be considered by the head of a . . . law enforcement
agency,” see Tex. Gov’t Code §§ 614.022-.023, and
chapter 614 therefore did not require that the ALJ
exclude this evidence at the F-5 Hearing.

We overrule McCall’s first four issues.


Having overruled McCall’s issues, we affirm the Order
denying McCall’s petition to correct the “general
discharge” in his F-5 Report to an “honorable

Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Smith


Filed: May 21, 2020

End of Document

2020 Tex. App. LEXIS 4095, *26

  • McCall v. Hays Cty. Constable Precinct Three
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