Appeals court upholds county immunity in deputy's case over wrongful termination

David Yates Mar. 10, 2009, 8:47am

A victory in the courtroom but a defeat in the appeals court have left a former peace officer batting .500.

Last September, the Record reported a former Jefferson County constable won his case against his former boss and was awarded more than $126,000 in damages for his alleged wrongful termination.

Larry Roccaforte, a former chief constable for Precinct 7, filed a civil suit against the county and his fellow officers in June 2006, alleging his constitutional rights were violated when he was fired for not reporting to duty following Hurricane Rita in 2005 and for forging a court document while on probation.

However, only a few weeks before his trial was set to start, a motion filed by the county seeking governmental immunity was approved by presiding Judge Milton Shuffield, 136th District Court.

The county, who had made a plea to the jurisdiction, was dismissed with prejudice, court papers say.

Although Roccaforte would go on to win his case against the rest of the suit's defendants, he appealed the judge's ruling, arguing the county violated his rights under the Texas Constitution, relying on section 89.0041 of the Texas Local Government Code to validate his claims.

On March 5, justices on the Texas Ninth District Court of Appeals affirmed Shuffield's ruling, but modified the decision by nixing the words "with prejudice."

"Because dismissal was appropriate, though not for jurisdictional reasons, we modify the order to reflect a dismissal without prejudice, and affirm the order as modified," states an opinion authored by Justice David Gaultney.

The justices opined that Roccaforte did not fully comply with section 89.0041 requirements when suing the county, giving the county the right to make its plea to the jurisdiction.

Case history

As the Southeast Texas Record reported in early September, the trial of Larry Roccaforte vs. Jefferson County et al began Sept. 8, in, but was abruptly delayed for two weeks while the area recovered from Hurricane Ike.

On Sept. 29 the jury concluded Roccaforte's constitutional rights were violated, awarding him $126,250 in damages.

After the trial, Roccaforte's attorney Larry Watts, told the Record that he thought it was an "excellent verdict."

However, the attorney was not so pleased with the Record or its coverage,calling the paper un-American, fascist and unconstitutional.

In his suit, Roccaforte says his demotion and firing came "after media attention was directed to the ineffectiveness of federal and state representatives and the apparent lack of some local officers to be present in the area" after the Category 3 hurricane struck Southeast Texas on Sept. 24, 2005.

Precinct 7 Chief Deputy Jeff Greenway, a defendant in the suit, testified that he demoted and put Roccaforte on 90 days probation for not reporting in after Rita, and then fired him three months later for allegedly lounging around at home while he was on duty.

Court documents and testimony show that Roccaforte had indeed returned to duty almost immediately after the storm cleared, but failed to report in with Greenway.

Shortly after Roccaforte's demotion for alleged dereliction of duty, Greenway said in court that Roccaforte's wife called Greenway a "sorry son of a (expletive)" in public and in front of another constable. The other constable reported the incident to Greenway.

The incident served as another false catalyst for Roccaforte's firing, said Watts.

During the trial, Watts pointed out that Greenway's original deposition and current testimony differed, and the lawyer insinuated that Greenway added the foul language to "spice" his testimony with "animosity" to perhaps demonize the Roccafortes.

Roccaforte's firing was cemented on Jan. 5, 2006, when Greenway had another constable spy on Roccoforte.

According to court documents and testimony, the constable reported that Roccaforte remained at his home from 7:57 a.m. to 1:53 p.m. Jan. 5 when he was supposed to be on duty. No attempt was made to contact Roccaforte to find out why he was at home.

During his testimony, Roccaforte contended he was not lounging around at home and presented a court document proving he had served a citizen at 9 a.m. Jan. 5.

Greenway testified that he believed the document was an illegal forgery and used the document as grounds for Roccaforte's termination.

Watts contended his client was fired on bogus accusations and said the incident may have unjustly prevented Roccaforte, who now works at a refinery, from being hired by another law enforcement department.

"You tell me why … for some strange reason an officer with 20 years of experience … couldn't get a job," testified Roccaforte, adding that most departments wouldn't even give him a reason for their refusal to hire him.

Watts also represents Keith Breiner, the Beaumont police officer that was been in the media spotlight last year for having sex with prostitutes during a sting operation.

Assistant District Attorney Tom Rugg represented the county.

Trial case No. D177-131

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