### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00215- CV

Christopher Jenkins , Appellan t

v. City of Cedar P ark, Texas, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 167 TH JUDICI AL DISTRICT NO. D-1 -GN-1 2-0 0284 9, H ONO RAB LE GISELA D. TRI ANA, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Christopher J enkins challeng es the district court’ s order g ranting the City of Cedar Par k’s plea to the jur isdiction in a case a rising unde r the F ire F ighte rs’ a nd Police Offic ers’ Civil Service Act. See generally Tex. L oc. Gov’t Code §§ 143.001–.363 (the Civil Service Act or the Act). J enkins, a fire fig hter, appea led his indefinite suspension to a hearing examiner, who upheld the suspension. On appea l to the district court, J enkins arg ued that the hear ing examiner exceede d his jurisdiction by upholding the indefinite suspension without finding he violated a local civil service rule and by upholding the suspension on the basis of untimely discipline. The City filed

a plea to the jurisdiction, which the district court g rante d. For the rea sons that follow, we aff irm the district court’s orde r.F ACTUAL AND P ROCEDURAL BACK GR OUND The City of Cedar Park adopted the Civil Service Act in 2003, promulg ated the City of Cedar Park Fire Fig hters’ and Police Offic ers’ Civil Service Commi ssion Rules and Reg ulations (the L ocal Civil Service Rules) in compli an ce with the Civil Service Act, and there by provides a civil service sy stem for its fire depart ment. See id. § 143.004; Cedar Park, Tex., Code of 1
Ordinanc es § 9.11.001. J enkins was employ ed as a fire fig hter with the Cedar Park Fire Depa rtment for more than eig ht y ear s. After a series of rule violations, J enkins ag re ed to a twenty -day 2

s u s pension. On September 9, 2010, while still on suspension, J enkins was char g ed with dri v i n g while intox icated (DWI ). The conduct that led to his arr est and DWI char g e included blocking two lanes of a roadw ay at a red light. On Aug ust 15, 2011 , J enkins enter ed a plea barg ain, pleade d

no contest to a char g e of blocking a roadw ay , and rec eived defe rre d ad j u d i cation. On
Dec ember 16, 2011, the fire chief issued J enkins a notice of indefinite suspension, which is equivalent to dismi ssal from the depar tment. See Tex. L oc. Gov’t Code § 143.052(b). The notice char g ed violations of subsections (1), (4), (6), (7), (8), an d (1 2 ) o f s ection 143.051 of the L ocal
Gover nment Code; section 143.056(g ) of the L ocal Gover nment Code; L oca l C i v i l Service Rule 143.051(1); and thr ee de partment rule s.

The Civil Service Act provides for civil sy stems for fire fig hters and police. See generally 1 Tex. L oc. Gov’ t Code §§ 143.001–.363. We refe r only to fire f ighte rs for e ase of

ref ere nce. The fac ts and proce dural backg ro u n d o f t h i s case are well known to the parties, and we 2 there fore will not rec ite them in g rea t detail in this opini o n
. See Tex. R. App. P. 47.1 (appe llate court opinions should b e as “b ri ef as prac ticable” ), 47.4 (memora ndum opinions should be “no longe r than ne cessa

ry to advise the pa

rties of the c ourt’s dec ision and the basic r easons f or it”). 2J enkins exercised the option to appea l his indefini t e s u s p en sion to an independe nt

hear ing examiner. See id. § 143.057 (appe aling fire fig hter may el ec t t o appeal to independe nt third party hear ing examiner instead o f t o civi l service commission); City of DeSoto v. W hite , 288 S.W .3d 389, 392 (Tex. 2009). The hear ing examiner found that J enkins violated subsections (4), (7), (8), and (12) of section 143.051 but did not violate subsections (1) and (6). He also found that
J enkins violated the three depar tment rules. The hear ing examiner made no finding as to the one L ocal Civil Service Rule alleg edly violated. The hear ing examiner then found that the suspension 3

was a ppropriate and denie d the appe al.
J enkins appea led t o the district court, claiming that the examiner exceede d his ju ri s diction by upholding the suspension on improper g rounds. See Tex. L oc. Gov’t Code § 143.057(j) (district court may hear appea l of hear ing examiner’s awa rd only on g rounds arbitra tion panel had no jurisdiction or exceede d its jurisdiction or that order was procur ed by fra ud, collusion,

or other unlawful means). The City filed a plea to the jurisdiction, conte n d i n g that the hear ing 4
examiner did not exceed his jurisdiction beca use J enkins’s claims did not fall within the narr ow rig ht

to appea l aff

orded under section 143.057(j). The parties filed cross-motions for summary judgme nt,

Concerning L ocal Civil Service Rule 143.051(1), the hear ing examiner stated that it is “not 3 at all clea r that the

. . . rule

. . . is consistent with state law.” See Tex. L oc. Gov’t Code § 143.051(1) (listing conviction of felony or other crime of moral t urpitude as among g rounds for commission rules presc ribing cause for remova l or suspension). The hear ing examiner did not addre ss the alleg ed violation of L ocal Gover

nment Code section 143.056(g ). See id. §143.056(g ) (convic tion of felony is cause for dism issal and co n v i ct i o n o f Class A or B misdemeanor may be cause for disciplinary action or inde finite suspension). Although the statute ref

ers to an “ar

bitration panel” having no jurisdiction or exceeding its 4 jurisdiction, the term includes a he aring examiner. City of Pasadena v. Sm ith , 292 S.W .3d 14, 19 (Tex. 2009). 3which the district court hear d concur rently with the City ’s plea to the jurisdiction. The district court
g rante d the C ity ’s pl ea to the j u ri s d i ct i o n and did not rule on the m otions for summ ary judgme nt. This appea l followed.

DISCUSSIO N
Stand ard of Review

Our standard of revie w for pleas to the jurisdiction is de novo and well established.
See Tex as Dep’t of P arks & W ildlif e v. Miranda , 133 S.W .3d 217, 226–28 (Tex. 2004)

. J enkins’s issues also involve matters of statutory construction, for which the standard of revie w is also de novo and well established. See Marks v. St. Luke ’s Episcopal Hosp. , 319 S.W .3d 658, 663 (Tex. 2010);

see also Tex. R. App. P. 47.1, 47.4. Additionally , we must apply the standard applicable under the statutory scheme of the Civil Service Act. A hear ing examiner’s decision is revie wable only on the
g rounds that the hear ing examiner had no jurisdiction or exceede d his jurisdiction or that the order

was procur ed by fra

ud, collusion, or other unlawful means. Tex. L oc. Gov’t Code § 143.057(j). I t is undisputed that the hear ing examiner had jurisdiction to hear J enkins’s appea l, and J enkins does

not alleg e that the decision was procur ed by fra ud, collusion, or o t h er u n lawful means. J enkins alleg es only that the hear ing examiner excee d ed h i s j urisdiction in upholding the indefinite suspension. A hearing examiner exceeds his j urisdiction “when his a cts are not authorized by the
Act or are contra

ry to it, or when they invade the policy -setting rea lm protec ted by the nondeleg ation doctrine.” City of W

aco v. Kelley , 309 S.W .3 d 5 3 6, 542 (Tex. 2010) (quoting City of Pasadena

v. Smith , 292 S.W .3d 14, 21 (Tex. 2009) ). J enkins does not arg ue that the hear ing examiner’s acts

4violated the nondeleg ation doctrine. There fore , the scope of our revie w includes whether the hear ing

examiner’s ac ts were not authorized by the Act or

wer e contr ary

to it. See id.

Violation of

Civil Service Rule
I n his first issue, J enkins arg ues that the district court err ed in g ranting the City ’s plea

to the j urisdiction beca

use t he hearing examiner exceede d his jurisdiction by upho l d i n g J enkins’s indefinite suspension based only on violations of the L ocal Gover nment Code and not on violations of the City ’s L ocal Civil Service Rules. J enkins contends that the plain lang uag e of the Civil Service
Act makes it clea

r that local civil service rules are the only rules that a fire fig hter can be disciplined for violating. He cites to sever al sections in the Civi l Service Act that provide for remova l or suspension for violation of a “civil service rule,” see Tex. L oc. Gov’t Code §§ 143.052(b), .053(g ), .056(c) , and arg ues there is no provision in the Civil Service Act that allows a fire chief to suspend

a fire fig hter for any

thing other than a local civil service rule. J enkins further contends that section
143.051 of the Act does n o t p ro v i d e an y g rounds for remova l or suspension of a fire fig hter but

mere ly sets the par ameter s for the r ules that a local commission may adopt. See id. §§ 143.008(c) (loca l civil service commission shall adopt rules presc ribing cause fo r re m oval or suspension in compliance with g rounds presc ribed by sectio n 143.051), .051 (listing g rounds for remova l or

sus p en s i o n co mmissi on rules may involve). I n short, J enkins arg ues that beca use the hear ing examiner’s decision to uphold the suspension was based on violations of the Civil Service Act rathe r than of the L ocal Civil Service Rules, it was not authorized by the Act or

was c ontrary

to it. The City arg ues that there is no law to sup port J enkins’s arg ument and numerous
courts have upheld suspensions for violations of 143.051 or its prede cessor, Tex. Rev. Civ. Stat.

5art. 1 2 6 9 m , § 5. J enkins’s arg ument, the City contends, puts form over substance. We ag ree
. 5
J enkins acknow ledg es that no cour t has direc tly

addre ssed the ar g ument he urg es and ha s cited no

case s, nor have we have found any , in w hich the courts have held that remova l or suspension must be based on local civil se rvice rules and cannot be based on alleg ed violations of section 143.051. 6
Moreove r, our decision in this case is informed by the approa ch the supreme court has taken in

See Act of April 30, 1987, 70th L eg ., R.S., ch. 1 4 9, § 1, sec. 143.051, 1987 Tex. Gen. 5 L aws 714, 903 (c urre nt version at Te x . L oc. Gov’ t Code § 143.051).

Although J enkins acknowledg es that the courts have not specific ally addre ssed his 6 arg ument that local civil service rules must be cited by the hear ing examiner, he cites sever al case s he contends support the arg ument. First, he relies on Bichsel v. Carver , 321 S.W .2d 284 (Tex. 1959) for the contention that discipline that is not based on civil service rules is “leg ally insuffici en t

. ” Howeve r, in Bischel , althoug h the city “conc eded” at the hear ing that its orig inal char g es based on depar tment rules wer e leg ally insufficient, the issue befor e the court was the timeliness of the city ’s second set of char g es, and the question of the sufficie ncy of the first set of char g es as a basis for the commission to uphol d the suspension was not prese nted or ruled on by the supreme c ourt. See id. at 285–87. J enkins’s relianc e on Skates v. City of Paris , 363 S.W .2d 425 (Tex. 1963 ) i s equally misplaced. I n Skates , a police office r was indefinitely suspended for violation of Tex. Rev. Civ. Stat. art. 126 9 m , § 5 , t h e p redece ssor to section 143.051. See Act of Apr. 30, 1987, 70th L eg ., R.S., ch. 149, § 1 , s ec
. 1 4 3

. 0 51, 1987 Tex. Gen. L aws 714, 903–04, (cur rent version at Tex

. L oc. Gov’t Code § 143.051). The “sole question prese nted [t o the] court [was] whether the order [was] void for the failure of the Commi ssion to make a finding of the truth of the specific char g es ag ainst Skates.” 363 S.W .2d at 426. The court held that beca use the commission’s order did not ref lect that i t was based upon a finding of the truth of the specific char g es ag ainst Skates, it failed to compl y with the lang uag e of a

rticle 1269m, sec tion 16 that “no employ ee shall be suspended or dismiss ed by the Commi ssion except upon a finding by the Commi ssion of the truth o f t h e s p ecif ic char g es ag ainst the fire fig hter” and was there fore void. Id. at 426–27; see Act of Apr. 30, 1987, 70th L eg ., R.S., ch. 149, § 1, sec. 143.120(e) , 1987 Tex. Gen. L aws 714 , 9 1 7 (c u rre nt version at Tex. L oc. Gov’t Code § 143.120(e )). Thus, Skates is inapposite. J enkins also cites City of San Antonio v. Poulos , 422 S.W .2d 140 (Tex. 1967) in support of this arg ument. I n Poulos , a poli ce office r was char g ed with viola t i ons of l ocal civil service rules. Id. at 141–42. The office r challeng ed the char g es on the g rounds that the acts cited did not constitute a violation of the cited rules and the char g es did not specify which acts violated which rules. Id. at 143. Whether the char g es wer e require d to be based on local civil service rules was not at issue, and the supreme court’s r

uling in that ca se does not g uide our de cision here

. 6addre ssing suspensions under the Civil Service Act. I n Kelley , a police office r’s susp en s i o n was

“base d on Section 143.051(7) [of the L ocal Gover nment Code], which provides that a police office r
may be removed or suspended for dr inking intoxi cants while on duty or for intox ication whil e off duty , and Section 143.051(12) [of the L ocal Gover nment Code], which provides for the remova l or suspension of an office r for violation of an applicable fire or police depar tment rule or specia l order .”
309 S.W .3d at 540. Thus, under the supreme court’s rea ding of section 143.05 1 of the L ocal
Gover nment Code, it “

provides that a police offic er [ o r fi re fig hter] may be remove d for” cer tain conduct and “

provides for the remova l or suspension for” ce rt ain violations. See id. (empha sis added)

. I n summarizing the proce dures for discipline under the Act, the supreme court also stated that “[i] nvoluntary discipline of an office r by the depar tment head may be only for violation of a civil servic e ru l e.” Id. at 545 (citing section 143.052(b)). The supreme court did not note any conflict betwee n the Civil Service Act’s provisions for discipline based on violations of a “civil service rule” and the char g es ag ainst Kelley that wer e based on violations of section 143.051 of the Civil Service
Act ra ther than on violations of loca l civil service r ules. 7 The supreme court and int erme diate appe llate cour ts have a lso upheld s uspensions for violations of depar

tment rules. See Firemen’ s & Policeme n’s Civil Serv. Comm’n of the City of
Fort W orth v. Lockhart , 626 S.W .2d 492, 494 (Tex. 1981) (upholding suspension based on violation of “two specific depar

tmental rules”) ; City of Carroll ton Civil Serv. Comm’n v. Peters , 843 S.W .2d 186, 187, 190 (Tex. App.—Dallas 1992, writ denied) (upholding suspension based on violation of

Simi larly , Skates involved an indefinite suspension based on section 5 of Article 1269m, 7 the pre dece ssor to section 143.051. 363 S.W .2d at 425. The supre me cour t found the conte nts of the commission’s order void on other statutory g rounds but did not base its holding on the fac t that the cha rg es we re f

or violations of the Civil S ervic e Ac t rather local civil servic e rule s. Id. at 427. 7depar

tment administrative direc tive); Vick v. City of W aco , 614 S.W .2d 861, 863–64 (Tex. Civ. App.—Waco 1981, writ ref ’d n.r.e
. ) ( u

p h o lding suspension based on violation of depar tment g ener al order ); Duck

ett v. Civil Serv. Comm’n of City of Houston , 598 S.W .2d 640, 641–42 (Tex. Civ. App.—Houston [14t h Dist.] 1980, writ ref ’d n.r.e.) (upholding suspension based on vio l at i o n o f “interna l rules and reg

ulations”). Thus, there is a long line of case s in which courts have applied the Civil Service Act so as n o t t o require that discipline be expressly based on violations of the local civil service rules. “I t is not t h e fu n ct i o n o f a court of appea ls to abrog ate or modify established
prec edent.” Lubbock Cnty. v. Trammel’s Lubbock Bail Bonds , 80 S.W .3d 580, 585 (Tex. 2002); see Hebe rt v. Hopkins , 395 S.W .3d 884, 902 n.16 (Tex. App.—Austin 2013, no pet.) (we are bound to follow supreme court prec edent) ; Pet co A n i ma l Supplies, Inc. v. Schuster , 144 S.W .3d 554, 565 (Tex. App.—Austin 2004, no pet.) (as intermediate appellate court, “we are not fre e to mold Texas law as we see fit”); Martin v. Texas De n t al Plans, Inc. , 948 S.W .2d 799, 806 (Tex. App.—San Antonio 1997, writ denied) (Rickhoff, J ., concur ring ) (“I t is not for an intermediate appellate court
to alter consistently applied prec edent.” ); Tracker Marine, L.P. v. Ogle , No. 14-00-00230, 2000 Tex. App. L EXI S 7169, at *14 (Tex. App.—Houston [14t h Dist.] Oct. 26, 2000, no pet.) (not desig nated for publication) (intermedia te appellate court is not fre e to disreg ard judicial dict u m o f supreme court). J udicial restra int compels us to leave it to the supreme court to deter mine whether the Civil Service Act prec ludes suspension based on provisions in the Act and overr ule prec edent upholding such sus pensions. S

ee L u b bock Cnty. , 80 S.W .3d at 585 (only supreme court m ay ree valuate and modify prior dec isions).

8Moreove r, to adopt J enkins’s arg ument would not further the underly ing g oals of the statutory scheme of t he C ivil Service Act. See 2 0 8 0 1 , In c. v. Parker , 249 S.W .3d 392, 396 (Tex. 2008) (we must con sider provision’s role in broade r statutory scheme ); Northw estern Nat’l Cnty.
Mut. Ins. Co. v. Rodriguez , 18 S.W .3d 718 , 721 (Tex. App.—San Antonio 2000, pet. denied) (“Construction of a statute must be cons i s tent with its underly ing purpose and the policies it promotes.”) . The L eg islature ena cted the Civil Service Act for the express purpose of “sec ur[ing] eff icient fire

. . . depar

tments composed of capa ble personne l w ho are fre e from political influence and who have perma

nent employ

ment tenure as public serva nts.” Tex. L oc. Gov’t Code § 143.001. Thus, one of the g oals of the Act is to provide for and protec t the rig hts of persons serving as office rs and employ ees of municipal fire depar tments. Bichsel v. Carver , 321 S.W .2d 284, 286 (Tex. 1959).
To further this g oal, the Act provides administrative proce dures and g uidelines by which fire fig hters can seek review of disciplinary actions. See Tex. L o c. Go v ’t Code §§ 143.010, 143.057; Proctor v. Andrews , 972 S.W .2d 729, 737 (Tex. 1998). “To e nsure f ull and fair tr eatment, the L eg islature provided that, at the option of the disciplined office r, appea l c ould be had to ‘ an independe nt third party hear ing examiner,’ instead of to the Ci t y ’s appointed Civil Service Commi ssion.” Proctor , 972 S.W .2d at 729; see Tex. L oc. Gov’t Code § 143.057; City of Pasadena , 292 S.W .3d at 18 (Ac t’s use of indepe ndent hea

ring examiners further s Act’s purpose ).
Her e, the City ado p t ed the Civil Service Act and promulg ated rules in compliance with the act. The City ’s L ocal Civil Service Rules conce rning g rounds for remova l or suspension

8

J en k i ns objects to our consideration of the City of Cedar Park Fire Fig hters’ and Pol i ce 8 Offic ers’ Civil Service Commi ssion Rules and Reg ulations, contending the City did not offe r them as evid en ce in the district court and they are not proper ly in the rec ord. Howeve r, the appellate rec ord establishes that at the hear ing befor e the examiner J enkins acknow ledg ed that he had rea d the 9are v i rt u al l y identical to section 143.051, trac king for the most part both the lang uag e and the

numbering sy stem of the Act. J enkins availed himself of the option to have his appea l hear d by an 9 independe nt hear ing examiner and does n o t co m p l ain that the char g ing letter failed to g ive him notice of the conduct with which he was char g ed or that he did n o t h ave adequate opportunity to defe nd the char g es befor e the hear ing examiner. Nothing in the proce dure followed in this case runs
contra ry to the underly ing pur

pose of the A ct.
Fur ther, to construe the plain lang uag e of the Civil Service Act so as to invalidate the hear ing examiner’s decision on these fac ts would lead to the absurd result that the hear ing examiner could not uphold the suspension based on char g es that (1) used statutory lang uag e virtually identical

to that in the L o ca l C ivil Service Rules used to descr ibe the same conduct, (2) provided J enkins adequate notice, and (3) aff orded him the opportunity to defe nd the char g es. See Marks , 319 S.W .3d

at 663 (we apply plain meaning of text unless differ ent meaning is supplied by leg islative definition

local rules, an d t h ey wer e admitt ed int o evidenc e without objection by J enkins and considered by the hear ing examiner. Fur ther, the City ’s L ocal Civil Service Rules are capa ble of acc urate and rea dy deter

mination by resor

t to a source whose acc urac y cannot be rea sonably questioned, and we may take judicial notice, whether reque sted by a party or on our own, at any stag e in the proce eding

. See Tex. R

. Evid. 201(b), (c) , (f) ; Langdale v. Villamil , 813 S.W .2d 187, 189–90 (Tex. Ap p
. — Ho u s t o n [14t h Dist.] 1991, no writ) (taking judicial notice of judgme nt not contained in rec ord); HealthTronics, Inc. v. Lisa Laser USA, In c. , 382 S.W .3d 567, 576 (Tex. App.—Austin 2012, n o p et.) (taking judicial notice of California trial court rec ords not contained in appellate rec ord but submitt ed to appellate court); see also Dutton v. Dutton , 18 S.W

. 3 d 8 4 9 , 8 56 (Tex. App.—Eastland 2000, pet. denied) (“This c ourt may take judicial notice , even if no one re quested the tr i al co u rt t o d o s o and even if the trial court did not announce that it would do so.”) (citing Harper v. Killion , 348 S.W .2d 521, 523 (Tex. 1961)). For example section 143.051(7) of both the Civil Service Act and the City ’s Civil Service 9 Rules ref er to “Dr inking of intox icants while on duty or intox ication while off duty .” See Tex. L oc. Gov’t Code § 143.051(7); City of Cedar Park Fire Fig hters’ and Police Offic ers’ Civil Service Commi ssion Rul es and Reg ulations, §143.051(7). 10or is appar ent from context or plain meaning leads to absurd results). We cannot conclude that the

leg islature intended such a result. See Jose Carreras, M.D., P.A. v. Marroquin , 339 S.W .3d 68, 73 (Tex. 2011) (noting courts “interpr et statutes to avoid an absurd result” and holding that to interpre t health car e liability statute, intended to provide speedy resolution, so as to allow leng thy delay would lead to absurd result); City of W aco v. Lopez , 259 S.W .3d 147, 151 (Tex. 2008) (dec lining to adopt employ ee’ s interpre tation of Texas Commi ssion on Human Rights Act that was contra ry to purpose of statute and would lead to absurd result that employ er could avoid liability for reta liation by swiftly firing employ ee) ; American Home Assurance Co. v. Unauthorized Practice of Law Comm. , 121 S.W .3d 831, 843 (Tex. App.—Eastland 2003), aff’d as modified , 261 S.W .3d 24, 46 (Tex. 2008) (dec lining to apply literal meaning of criminal statute conce rning unauthorized prac tice of law to insurance contra cts b ec au s e it would lead to absurd result of prohibiting insurance defe nse altog ether ).

I n light of exis ting prec edent and the g oals of the Civil Service Act, we conclude that

to follow J enkins’s rea soning and require the hear ing examiner’s awa rd to be based expressly on the
L ocal Civil Service Rules that contain virtually identical lang uag e to, and ref er to the same conduct

as, the Civil Service Act lang uag e cited by the hear ing ex am i n er woul d also eleva te form over substance. See Garza v. Garcia , 137 S.W .3d 36, 41 (Tex. 2004) (Phill i p s , C

. J

. , d issenting) (a l t h oug h literal rea ding of venue statute supported court’s holding that implied g round o f convenie nce prec luded appellate revie w, result exalted form over substance and undermin ed essential pu rp o s e o f leg islature’s venue scheme); Griffin Indus. v. Honorable T hirteenth Court of
A ppeals , 934 S.W .2d 349, 351 (Tex. 1996) (to require indige nt litigant to obtain formal loan

11reje ct i o n s wher e evidenc e established she had no income or collater al to secur e loan would exalt

form over substance) ; Mohican Oil & Gas, LLC v. Chapco, Inc. , No.13-10-00694- CV,
2011 Tex. App. L EXI S 9435, at *28 (Tex. App.—Corpus Christi Dec

. 1, 2011, pet. denied) (mem. op.) (to require strict compliance with applicable g arnishment rules and “sec ond trial” would exalt form over s u b stance wher e parties had opportunity to prese nt evidenc e and arg ument as contemplated by

rules). The ref

ore, c onstruing the statutory lang uag e in the context of the broade r scheme of the Civil Service Act and the underly ing purpose and the pol icies i t promotes s o as not
to rea ch an absurd result, and in light of exis ting prec eden t , we cannot conclude that the hear ing examiner ’s d ecision was not authorized by the Act or was contra ry to it so that he exceede d his jurisdiction in upholdi ng J enkins’s suspension base d on a finding of violations of section 143.051 of the Civil Service Ac t. See Marks , 319 S.W .3d at 663; Kelley , 309 S.W .3d at 540, 542; Parker , 249 S.W .3d at 396; Rodriguez , 18 S.W .3d at 721.

Time liness of

Disciplin e Also in his first issue, J enkins arg ues that the district court err ed in g ranting the City ’s plea to the jurisdiction beca use the hear ing examiner exceede d his jurisdiction by upholding the indefinite suspension based on discipline that was untimely u n d er the Civil Service Act. J enkins initially arg ues that the City failed to comply with section 1 4 3

. 0 5 2 (h), which provides that the depar tment head may not complain of any act that occur red—or , in the case of criminal activity , was discovere d—more than 180 day s prior to the suspension. See Tex. L oc. Gov’t Code § 143.052(h).
Howeve r, although i t is undisputed that the fire chief did not meet thi s 180-day deadline, the City contends—a

nd J enkins conce ded at the hear ing in the district court—that section 143.056(c) , which

12applies when the action in question is direc tly rel at ed t o a felony indictment or misdemeanor

complaint, applies in this case
. Be cause this case involves discipline following the filing of a misdemeanor c omplaint, we conc lude that sec tion 143.056( c) controls here

. See id. § 143.056(c) ; Rough v. Oje da , 954 S.W .2d 127, 130 (Tex. App.—San Antonio 1997, no pet.).

Section 143.056(c) provides that if the ac t i o n “d irec tly rela ted” to the criminal complaint occur

red or was discovere d within 180 d ay s p ri o r t o the date of the complaint, the depar tment may bring its char g es within 30 day s of the final dispositi on of the complaint. See Tex.
L oc. Gov’t Code § 143.056(c)

. J enkins arg ues that the fire chief did not meet this 30-day deadline beca use t he charg es i n the not ice of suspension “dire ctly rela ted t o” the DWI complaint, the DW I

was dismiss ed, and the char g es wer e broug ht more than 30 day s af t er the dismiss al or final dispositi on of the DWI complaint. He contends that the chief ’s char g es did not rela te to the criminal complaint for obstruction of a highw ay , that the conduct the chief complained of occur red more than
180 day s befor e the obstruction of a highw ay complaint, and that the chief broug ht the civil service char g es befor e the final dispositi on of the obstruction of a highw ay complaint beca use J enkins was still on defe rre d adjudication and that compl ai n t h ad not been finally adjudicate d. Thus, J enkins conclude s, the chief

’s char g es did not comply with section 143.056(c) with reg ard to either the DWI

or obstruction of a highw ay complaint, and the hear ing examiner exceed ed his jurisdiction by upholding discipline ba sed on untimely char g es. Although J enkins’s arg ument is not entirely clea r, assuming his complaint is that the hear ing examiner exceede d his jurisdiction, this arg ument is disinge nuous at best. J enkins’s attempt
to mecha nistically diseng ag e the DWI char g e from the obstruction of a h i gh way char g e is not

13supported by the fac ts. The char g es in the notice of suspension are direc tly rela ted t o t h e same

fac tual circ umstances that gi v e ri se to both the DWI and the obstruction of roadw ay char g es. Thus, there is “identity of fa ct s ” an d an “uninterr upted, close rela tionship” betwee n both criminal complaints and the c harg es in the notice of suspension. See City of Amarillo v. Fenwick , 19 S.W .3d 499, 501–02 (Tex. App.—Amar illo 2000, no pet.) (apply ing common meaning of “dire ctly rela ted” a s used in section 143.056(d) of Act, which concer ns rig ht to continuance when misdemeanor char g e and civil service violations are direc tly rela ted, and holding that beca use both criminal complaint and civil service char g es wer e based on same fac tual circ umstance, they wer e direc tly rela ted). Moreove r, the DWI complaint was dismiss ed and “refiled” as an obstruction of roadw ay complaint. I n other words, but for the DWI complaint, there woul d h ave been no plea barg ain or complaint for obstruction of a roadw ay , and the two wer e, in essenc e, the same complaint.
As such, J enkins’s arg ument that the conduct the chief complained of occur red more than 180 day s befor e the obstruc tion of a hig hway complaint is unpersuasive.
J enkins’s arg uments conce rning fi n al dispositi on of the obstruction of a roadw ay complaint also fail. Def

err ed adjudication is not a final dispositi on. See Rough , 954 S.W .2d at 131;
W alden v. Bake r , No. 03-03-00253- CV, 2005 Tex. App. L EXI S 10446, at *7–8 (Tex. App.—Austin
Dec

. 15, 2005, no pet.) (mem. op.) (during defe rre d adjudication there is no finding of g uilt and no final conviction; case is “tempora rily still ed,” acc used has opportunity to show g ood behavior , and
if he succe eds, case “for most purposes disappea rs”)

. Nor is there any

thing in the plain lang uag e of section 1 4 3

. 0 5 6(c) that prec ludes the chief from bring ing civil service char g es prior to final dispositi on of the criminal complaint for obstruction of a roadw ay ; rathe r, section 143.056(c) sets

14the deadline afte r which a civil service char g e may not be filed. See Tex. L oc. Go v ’t C ode

§ 143.056(c) (depa

rtment head “may

” bring civil service char g e within 30 day s afte r final dispositi on of misdemeanor complaint); Marks , 319 S.W .3d at 663; Rough , 954 S.W .2d at 131 (cha rg es timely when broug ht more than 30 day s afte r fire fig hter rec eived d ef er re d adjudi cation but during six -month defe rre d adjudication). Be cause we conclude that the fire chief disciplined J enkins in a timely manner , we cannot conclude that the hear ing examiner’s decision was not authorized by the
Act or was contra

ry to it so that he exceede d his jurisdiction in upholding J enkins’s suspension based

on that discipline. See Tex. L oc. Gov’t Code § 143.057(j); Kelley , 309 S.W .3d at 540, 542; Fenwick , 19 S.W .3d at 501–02; Rough , 954 S.W .2d at 131.

Having conclude d that the hear ing examiner did not exceed his jurisdiction in either of t he way s asser

ted by J enkins, we therefor e further conclude that t he dis trict court did not err in
gra n ting the City ’s plea to the jurisdiction. See Tex. L oc. Gov’t Code § 143.057(j); Miranda , 133 S.W .3d at 226–27. We overr ule J enkins’s first is sue. Be cause we conclude that the district

court did not err in g ranting the City ’s plea to the jurisdiction, we do not rea ch J enkins’s second issue

co n ce rn i n g t he appropr iate reme dy on appea l. See Tex. R. App. P. 47.1 (appe llate court opinio n should be as brief as prac ticable but addre ss ever y issue raised and nece ssary to dispose of appea l).

CONCLUSION We affir m the district court’s orde r g ranting the City ’s plea to the jur isdiction.

15_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Melissa Goodwin, Jus tice
Be fore J ustices Pury ear , Goodwin, and F ield Dissenting O pinion by

J ustice F ield
Affir med Filed: Jul y

24, 2014

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