the City of Houston v. Donald Clark

Affirmed in Part, Vacated and Dismissed in Part, and Majority and Concurring Opinions filed March 18, 2008 Affirmed in Part, Vacated and Dismissed in Part, and Majority and Concurring Opinions filed March 18, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-03-00399-CV ____________ THE CITY OF HOUSTON, Appellant V. DONALD CLARK, Appellee On Appeal from the 333rd District Court Harris County, Texas Trial Court Cause No. 00-20826 M A J O R I T Y   O P I N I O N In this appeal regarding disciplinary action taken against a member of the Houston Fire Department, the City of Houston challenges a summary judgment granted in favor of that member, alleging (1) error in the district court=s declaratory judgment that an acting fire chief lacks authority to suspend fire department members, and (2) error by the district court in concluding that the hearing examiner did not exceed his jurisdiction. Under applicable statutes, a district court adjudicating an appeal from a hearing examiner=s decision lacks jurisdiction to review the merits of that decision. Therefore, the district court lacked jurisdiction over the parties= declaratory-relief requests. For this reason, we vacate the district court=s judgment in this regard, and we dismiss the City=s appeal to this extent. However, because we have determined that the district court did not err in concluding that the hearing examiner acted within his jurisdiction in making his decision, we affirm the district court=s rejection of the City=s appeal from the hearing examiner=s award. I. Factual and Procedural Background In 1999, Houston Fire Department Assistant Chief Chris Connealy, while serving as Acting Fire Chief, temporarily suspended appellee Donald Clark, a member of the Houston Fire Department, for failing to follow the fire department=s regulations. Clark appealed his suspension to a hearing examiner. In his decision, the hearing examiner ruled that Clark=s Agrievance@ was Adenied@ because just cause existed for Clark=s suspension. However, the hearing examiner also determined that only the appointed Fire Chief, and not the Acting Fire Chief, had authority to temporarily suspend Clark. Consequently, the hearing examiner Agranted@ Clark=s AMotion to Dismiss the charges against [Clark]@ because he concluded the Acting Fire Chief had no authority to issue the suspension. The City of Houston appealed the hearing examiner=s decision to the district court, and the City also sought a declaratory judgment that an Acting Fire Chief has the authority to suspend members of the fire department (hereafter referred to as the Aauthority issue@). The district court granted summary judgment for Clark based on collateral estoppel. However, the First Court of Appeals reversed and remanded the case to the district court. See City of Houston v. Clark, No. 01-01-00828, 2002 WL 31771188, at *4 (Tex. App.CHouston [1st Dist.] 2002, Dec. 12, 2002, no pet.) (not designated for publication). On remand, Clark filed another motion for summary judgment, and the City filed a cross-motion for summary judgment. The district court denied the City=s motion, and granted Clark=s motion. In its judgment, the district court rendered a declaratory judgment that: (1) the term Adepartment head,@ contained in section 143.117 of the Local Government Code, does not include an Acting Fire Chief who was not appointed by the mayor or confirmed by the city council; (2) an Assistant Fire Chief temporarily appointed by the Fire Chief to serve as Acting Fire Chiefs is not empowered with the authority to suspend fire department members; and (3) Acting Fire Chief Connealy did not have the authority to suspend Clark. In its final order, the district court rejected the City=s appeal from the hearing examiner=s decision. The City appealed the district court=s judgment, and this court dismissed the appeal for lack of subject matter jurisdiction, holding that, under the applicable statutes, the City had no right to appeal the hearing examiner=s decision and that the district court=s declaratory judgment was an advisory opinion. See City of Houston v. Clark, 142 S.W.3d 350, 353B54 (Tex. App.CHouston [14th Dist.] 2004), ref=d, 197 S.W.3d 314, 324 (Tex. 2006). Without addressing this court=s decision regarding the district court=s declaratory judgment, the Supreme Court of Texas concluded that the City did have the right to appeal, reversed this court=s judgment, and remanded for consideration of the party=s appellate arguments. See City of Houston v. Clark, 197 S.W.3d 314, 318B24 (Tex. 2006). II. Standard of Review A summary judgment may be granted if the summary-judgment record shows that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law on the issues expressly set out in the summary-judgment motion and responses. Tex. R. Civ. P. 166a(c). In a traditional motion for summary judgment, if the movant=s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a lower court=s summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). III. Issues and Analysis Declaratory Judgment The City first challenges the district court=s declaratory-judgment ruling on the merits as to the authority issue. Chapter 143 of the Texas Local Government Code offers procedures to fire fighters and police officers by which to appeal certain adverse disciplinary actions to a hearing examiner. See Tex. Loc. Gov=t Code Ann. ' 143.1016 (Vernon 1999); see generally Tex. Loc. Gov=t Code Ann. ' 143.001 et. seq. (Vernon 1999). Under subsection 143.1016(c) of the Texas Local Government Code, a hearing examiner=s decision is final and binding on all parties. Tex. Loc. Gov=t Code Ann. ' 143.1016(c); Clark, 197 S.W.3d at 318. Subsection 143.1016(j) permits a district court to hear an appeal of a hearing examiner=s award. Tex. Loc. Gov=t Code Ann. ' 143.1016(j); Clark, 197 S.W.3d at 318. However, such an appeal is limited to three grounds: (1) the hearing examiner[1] lacked jurisdiction; (2) the hearing examiner exceeded his jurisdiction; or (3) the hearing examiner=s decision was procured by fraud, collusion, or other unlawful means.[2] Tex. Loc. Gov=t Code Ann. ' 143.1016(j); see Clark, 197 S.W.3d at 318; City of Houston v. Williams, 99 S.W.3d 709, 713 (Tex. App.CHouston [14th Dist.] 2003, no pet.). The City has never asserted the third ground; however, it did assert the first two grounds in the district court. Whether the hearing examiner correctly determined the authority issue is irrelevant to the resolution of the City=s appeal. The district court below made declarations on the merits of the authority issue. The City challenges these declarations in its appeal in this court. However, the district court lacked jurisdiction to make these declarations because the hearing examiner ruled on this issue in his decision and, by statute, the district court cannot review the merits of this decision but only the three non-merits issues listed in section 143.1016(j). See Tex. Loc. Gov=t Code Ann. ' 143.1016(j); Clark, 197 S.W.3d at 324; Williams, 99 S.W.3d at 713 (holding district court lacked jurisdiction to make declaration regarding merits of firefighter=s appeal to hearing examiner). Therefore, although a case or controversy exists regarding the authority issue, section 143.1016 deprives the district court of jurisdiction to make a declaration regarding this issue.[3] Because the district court lacked jurisdiction, this court lacks jurisdiction over the City=s appeal from the district court=s declaratory judgment; therefore, as to this part of the district court=s judgment, we vacate the judgment and dismiss the City=s appeal.[4] See Gantt v. Gantt, 208 S.W.3d 27, 31 (Tex. App.CHouston [14th Dist.] 2006, pet. denied) (vacating trial court judgment and dismissing appeal based on lack of subject matter jurisdiction in the trial court). The Hearing Examiner=s Jurisdiction The City also contends the district court erred by rejecting the City=s contention that the hearing examiner exceeded his jurisdiction based on his lack of jurisdiction to rule on the authority issue because, the City asserts, this issue was not stated as a ground in Clark=s notice of appeal to the hearing examiner, as the City asserts is required by section 143.010(b). See Tex. Loc. Gov=t Code Ann. ' 143.010(b) (Vernon 1999). Presuming that this section applies to appeals to a hearing examiner, courts have held that an appellant must include in the notice of appeal one of the statements contained in the second sentence of section 143.010(b) in order to invoke appellate jurisdiction under section 143.010(b). See id; City of Temple Firemen=s and Policemen=s Civil Serv. Comm=n v. Bender, 787 S.W.2d 951, 952 (Tex. 1990) (per curiam); Fire Fighters= and Police Officers= Civil Service Commission of City of Houston v. Caezer, 725 S.W.2d 431, 433 (Tex. App.CHouston [14th Dist.] 1987, writ ref=d n.r.e.). The City does not assert that Clark failed to invoke the hearing examiner=s jurisdiction at all by failing to include one of these grounds in his notice of appeal; rather, the City asserts that the hearing examiner=s jurisdiction is limited to only those grounds stated in the notice of appeal and that Clark did not state the authority issue as a ground in his notice. The City has not cited and research has not revealed any cases addressing the issue of whether an appeal to a hearing examiner is limited to the grounds specified in the notice of appeal.[5] Nonetheless, the City has a proof problemCthe appellate record does not reflect what grounds Clark stated in his notice of appeal. Our record does not contain Clark=s notice of appeal to the hearing examiner, and it does not indicate that this document was before the district court. The only reference to Clark=s notice of appeal in the record is in the parties= district court stipulations, in which they agree that AClark timely appealed his suspension to an independent third-party hearing examiner under the provisions of Chapter 143, Texas Local Government Code.@ Even if section 143.010 applied and limited Clark=s appeal to the grounds stated in his notice of appeal,[6] because the notice is not contained in our record, we would presume that the missing document supports the district court=s determination that the hearing examiner did not exceed his jurisdiction. See, e.g., Middleton v. Nat=l Fam. Care Life Ins. Co., No. 14-04-00428-CV, 2006 WL 89503, at *2 (Tex. App.CHouston [14th Dist.] Jan. 17, 2006, pet. denied) (mem. op.) (holding that, because appellate record did not contain a complete record of the trial, this court would presume the omitted portions are relevant to the disposition of the appeal and support the trial court=s judgment); Hiroms v. Scheffey, 76 S.W.3d 486, 489 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (holding that the court could not address the merits of an alleged charge error because appellate record did not contain a complete record of the trial proceedings). Therefore, we cannot reach the merits of the City=s argument because we cannot review the contents of Clark=s notice of appeal. See Middleton, 2006 WL 89503, at *2; Hiroms, 76 S.W.3d at 489. The City also asserts that the hearing examiner lacked jurisdiction to rule on the authority issue or exceeded his jurisdiction in doing so because the hearing examiner abused his discretion and ignored or misinterpreted controlling law. As stated above, the district court and this court lack jurisdiction to review the merits of the hearing examiner=s decision, including issues regarding whether the hearing examiner abused his discretion and ignored or misinterpreted controlling law. See Tex. Loc. Gov=t Code Ann. ' 143.1016(j); Williams, 99 S.W.3d at 713. Finally, the City argues that, under section 143.118 of the Texas Local Government Code, the hearing examiner=s jurisdiction over an appeal of a suspension is limited to deciding whether the suspension (1) is supported by just cause, (2) should be reduced, or (3) should be reversed. See Tex. Loc. Gov=t Code Ann. ' 143.118 (Vernon 1999). However, this statute does not expressly purport to set forth or limit a hearing examiner=s jurisdiction, and the City has not provided any argument, analysis, or authorities in support of its assertion that this jurisdiction is so limited. Therefore, we conclude that the City has waived this challenge to the district court=s judgment. See Tex. R. App. P. 38.1(h); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 337 (Tex. App.CHouston [14th Dist.] 2005, no pet.). In any event, even absent briefing waiver, the City would not prevail. In conducting a hearing in an appeal of a suspension, a hearing examiner has the same powers as the Fire Fighters= and Police Officers= Civil Service Commission. Tex. Loc. Gov=t Code Ann. '' 143.003(1), 143.1016(f). Therefore, this court has concluded that a hearing examiner has the authority to interpret statutory provisions and make decisions thereon. See Williams, 99 S.W.3d at 717; Lindsey v. Fireman=s and Policeman=s Civil Serv. Comm=n, 980 S.W.2d 233, 236B37 (Tex. App.CHouston [14th Dist.] 1998, pet. denied). For this reason, the hearing examiner did not exceed his jurisdiction by deciding the authority issue based on his interpretation of the statutes at issue. In addition, a hearing examiner, as the hearing examiner did in this case, may reverse a suspension and order that the fire fighter or police officer be restored to his prior position with backpay. Tex. Loc. Gov=t Code Ann. ' 143.118(b). The hearing examiner stated that he was denying Clark=s grievance but granting Clark=s motion to dismiss asserting that his suspension was invalid but Acting Fire Chief Connealy lacked the authority to suspend Clark. In reviewing his decision, the hearing examiner concluded that, although Clark engaged in conduct that would justify the suspension given, Clark=s suspension should be reversed because the Acting Fire Chief had no authority to suspend Clark. Accordingly, the hearing examiner reversed Clark=s suspension and ordered Clark reinstated with backpay. The hearing examiner=s determinations and rulings, as set forth in the award, were not made without jurisdiction or in excess of jurisdiction. See Tex. Loc. Gov=t Code Ann. '' 143.1016(f), 143.118; Williams, 99 S.W.3d at 717; Lindsey, 980 S.W.2d at 236B37. The district court did not err in rejecting the City=s appeal. Accordingly, we overrule the City=s issues to the extent the City challenges the district court=s rejection of the City=s appeal, and we affirm the district court=s ruling in this regard. /s/ Kem Thompson Frost Justice Judgment rendered and Majority and Concurring Opinions filed March 18, 2008. Panel consists of Justices Frost, Guzman, and Edelman.* (Edelman, S. J.,concurring). [1] See Tex. Loc. Gov=t Code Ann. ' 143.1016(j); see also id. ' 143.057(j) (Vernon 1999). Both subsection 143.057(j) and subsection 143.1016(j) refer to a police officer=s or fire fighter=s ability to appeal a hearing examiner=s award on the basis that Athe arbitration panel@ lacked jurisdiction or exceeded its jurisdiction. See id. '' 143.057(j), 143.1016(j). The legislature=s use of the phrase Aarbitration panel@ is difficult to explain in the context of an appeal from a hearing examiner=s decision. See Clark, 197 S.W.3d at 318 n.5. It may be explained by the fact that the American Arbitration Association apparently provides the hearing-examiners. For purposes of this opinion, it is presumed that the references in the statutes to an Aarbitration panel@ include hearing examiners. See id. [2] This appeal primarily involves subsection 143.1016(j) of the Texas Local Government Code as the City is a municipality with a population of 1.5 million people or more. See Tex. Loc. Gov=t Code Ann. ' 143.1016(j); see Clark, 197 S.W.3d at 317 n.4. However, the language at issue in this case regarding appeals of hearing-examiner decisions in sections 143.1016(c) and (j) is substantially similar to the language of sections 143.057(c) and (j). See Tex. Loc. Gov=t Code Ann. '' 143.057(c), (j), 143.1016 (c), (j). [3] In Nuchia v. Woodruff, this court held that, despite section 143.1016, the district court had jurisdiction to make a declaration as to whether the hearing examiner exceeded his jurisdiction, in addition to ruling on an appeal on this same basis. 956 S.W.2d 612, 615B18 (Tex. App.CHouston [14th Dist.] 1997, pet. denied). However, in that case, the requested declaration addressed the same issue that would decide the appeal from the hearing examiner=s decision rather than the merits of the hearing examiner=s decision. Therefore, the Woodruff case is not on point. See id. [4] Our concurring colleague concludes that the district court lacked jurisdiction to render a declaratory judgment as to the authority issue based on a lack of standing. See post at pp. 2B3. Our colleague reasons that there is no standing due to a lack of case or controversy regarding the requests for declaratory relief because the authority issue will be resolved by the City=s appeal of the hearing examiner=s decision. See id. However, after concluding there is no jurisdiction as to the declaratory-judgment issue because the City=s appeal will resolve the authority issue, our colleague would adjudicate the City=s appeal without addressing the authority issue. [5] No court appears to have addressed this issue, and it appears to be one of first impression. [6] Our concurring colleague states that the City agreed to include the authority issue in the appeal to the hearing examiner; however, this point is only relevant to the analysis if, contrary to the City=s argument, the hearing examiner=s jurisdiction is not limited to the grounds stated in the notice. See post at pp. 5B6; Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993) (noting how jurisdiction is essential to the authority to hear a case and cannot be waived); In re Powers, 974 S.W.2d 867, 871 (Tex. App.CHouston [14th Dist.] 1998, orig. proceeding) (ASubject matter jurisdiction cannot be conferred by consent, waiver, or estoppel.@). * Senior Justice Richard H. Edelman, sitting by assignment