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Click here for the full text of this decision FACTS:This case arises from the allegedly unlawful termination of the appellant Catherine Waller by the Bexar County Sheriff’s Department. After three alleged instances of sleeping while on duty, the Sheriff’s Department terminated Waller. Waller appealed to the Bexar County Sheriff’s Civil Service Commission, arguing that she was not terminated for just cause. Following a hearing, the Commission denied Waller’s appeal and upheld her dismissal. Waller then appealed the matter to the Bexar County District Court, and, following a hearing, the trial judge granted the Sheriff’s Department’s motion for summary judgment. HOLDING:Affirmed. Waller argues the trial court erred in upholding the commission’s denial of her subpoena of the employment and disciplinary records of other employees who were situated similarly to her. She also claims this denial violated her rights to both due process and equal protection under the U.S. and Texas Constitutions. Waller claims she was “wholly denied the opportunity to show that her public employer may have treated her disparately in comparison with other similarly situated employees.” However, because Waller did not have the burden of proof at the hearing, she did not need to prove the county’s adverse action should not be upheld. Instead, the county bore the burden of justifying its actions. Even without the subpoena, Waller was still able to present a defense. Because she was not denied due process, Waller was not harmed by the commission’s refusal to grant her request for the subpoena of other employees’ records. Additionally, the commission did not possess the power to subpoena such records. There is no provision giving the commission the authority to order the production of documents. The commission argues that county entities have only those powers which are expressly granted to them by statute together with those powers necessarily implied from the authority conferred or duties imposed. Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex. 1961). However, Waller reads the above rule of law as empowering the commission to adopt, publish, and enforce rules regarding disciplinary actions under the statute. Texas Local Government Code �158.035(a)(5). In other words, argues Waller, the commission may adopt any language to grant itself necessary and implied powers. She goes on to suggest that the subpoena power is necessary to conduct a hearing on a disciplinary action and should therefore be impliedly within the purview of the commission. While the court finds that Waller’s argument to contain some merit, the court does not find it applicable here. At least one other appellate court has found a sheriff’s department civil service commission to have the ability to grant itself the power to subpoena under �158.035. Brooks v. Klevenhagen, 807 S.W.2d 777 (Tex. App. � Houston [14th Dist.] 1991, no writ). In the Brooks case, however, the Harris County Sheriff’s Department Civil Service Commission had given itself the subpoena power in its rules. The Bexar County Sheriff’s Department Civil Service Commission has not. OPINION:Green, J.; Green, Angelini and Marion, JJ.

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