### 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

D I S S E N T I N G O P I N I O N

The hear ing examiner in this case exceede d his jurisdiction by upholding J enkins’s

suspens ion on a basis not supported by statute. As a result, the trial court had jurisdiction over
J enkins’s appe al. B eca

use the Court holds otherwise, I respe ctfully

dissent.
As explained in the majority ’s opinion, the City of Cedar Park indefinitely suspended
J enkins, a fire fig hter, char g ing him with violations of S ec t ion 143.051 of the Texas L ocal
Gover nment Code , S ection 143.056(g ) of the L ocal Gover nment Code, Rule 143.051(1) of the City ’s Civil Service Rules, and three fire depar tment rul es. J enkins appea led his suspension to a
hear ing examiner, who found that J enkins violated Section 143.051 of the L ocal Gover nment Code
and the three fi re d ep ar t m ent rules, but that J enkins did not violate the City ’s Civil Service Rule.
J enkins contends that by upholding his suspension without finding that J enkins violated the City ’sCivil Service Rule, the hear ing examiner exceede d his jurisdiction, confe rring a rig ht t o J en k i n s

to appea l to the district court. Iag ree
.

Section 143.057(j) of the Texas L ocal Government Code provides the standard for
when a district court has jurisdiction over an appe al of a hear ing e x aminer’ s decision. I t states, in
rele vant par

t:

A district court may hear an appea l of a h ea ri n g examiner’s awa rd only on the g rounds that the arbitra tion panel was wi t h o u t jurisdiction or exceede d its 1 j u ri s d iction or that the order was procur ed by fra ud, collusion, or other unlawful means.

Tex. L oc. Gov’t Code § 143.057(j). The Texas Supreme Court has noted that the Civil Service Act “imposes signific ant limit s” on a hear ing examiner’s jurisdi ct i o n and that the non-dele g ation
doctrine require s enfor ceme nt of those limit s. City of Pasadena v. Smith , 292 S.W .3d 14, 21 (Tex. 2009). I n City of Pasadena , the court conclude d that “a hear ing examiner exceeds his jurisdiction
when his acts are not authorized by the [C ivil Service ] Act or are contra ry to it, or when they invade
the policy -setting rea lm protected by the nondeleg ation doctrine.” Id. Under this test, the hear ing
examiner in this case exceede d his jurisdiction by acting in a manner not authorized by the Act, and
there fore J enkins has a r ight to appe al to the district court.

The hear ing examiner exceed ed his jurisdiction in this case beca use he upheld
J enkins’s suspension on a basis that is not authorized by , or is contra ry t o , t h e Civil Service Act.
The Civil Service Act provide s that the only basis on which a suspe nsion can be upheld on appea l

This t er m i n cludes a hear ing examiner. City of Pasadena v. Smith , 292 S.W .3d 14, 19 1 (Tex. 2009).
2is for violation of a local civil service rule. Tex. L oc. Go v ’t C o d e § 1 4 3.053(g ). Section 143.053

of the Act is entitled “Appe al o f Di s ci p linary Suspension,” the situation prese nted in this case
. Subsection (g ) provides that “The commission may suspend or dismiss a fire fig hter or police office r 2 only for violation of civil service rules and only aft er a finding by the commission of the truth of the spec ific cha

rg es ag ainst the fire fig hter or police office r.” Id. (empha sis added). 3
Sometimes this Court is fac ed wit h i n t er p re t ation of a statute that uses vag ue or ambig uous lang uag e, requiring us to deciphe r the leg islature’s intent when promulg ating the statute.
This is not one of those statutes. The lang uag e of Section 143.053(g ) could not be more clea r. The “only ” basis upon which a hear ing examiner can uphold a fire fig hter’s suspe nsion is for violation
of a local civil service rule. Id. Her e, it is undisputed that the hear ing examiner expressly found no
violation of the City ’s Civil Service Rules. The hear ing exa m i n er never theless upheld J enkins’s suspension on other bases. I n doing so, the hear ing examiner exceede d his jurisdiction, confe rring appellate jurisdiction in the dist rict cour t.
I n s te a d o f a

p p ly in g th e p la in la

n g u a g e o f th e s ta

tu te , th e ma jo r it y u lt im a te ly c o n c lu d e s , in essenc e, that the leg islature could not have rea lly meant what it wrote. First, the majority rea sons

I n a disciplinary appea l conducte d by an independe nt hear ing examiner under Section 2 143.057, “the hear ing examiner has the same duties and power s as the comm ission.” Tex. L oc. Gov’t Code § 143.057(f

); City of Pasadena , 292 S.W .3d at 20.
This require ment is consistent with other provisions within Chapter 143 wher e suspension 3 of a fire fig hter or police office r is conce rned. See, e.g. , Tex. L oc. Gov’t Code §§ 143.052(b) (“The h e a d o f th e f

ir e o r p o li c e d e p a

r tm e n t ma y s u s p e n d a f

ir e f ig h te r o r p o li c e o f

f ic e r u n d e r th e d e p a

r tm e n t head’ s supervision or jurisdiction for the violation of a civil service rule.” ), 143.052(e) (“The written statement filed by the depar tment he ad with the commission must point out each c ivil service r ule alleg ed to have been violated by the suspended fire fig hter

. . . and must descr ibe the alleg ed acts of the per son that the depa

rtment hea d contends a

re in violation of the c ivil service r ules.”).
3that en fo rc em en t of the plain lang uag e of the statute would run contra ry to exis ting case law in
which courts have upheld disciplinary suspensions on g rounds other than for violation of local civil
service rules. The problem with eac h of the case s cited by the majority in support of its decision is
that none of them actua lly analy zes the question befor e us—whether a hear ing examiner exceede d
his jurisdiction by upholding a suspension on a basis other than a violation of a local civil service

ru l e. I n s t ea d, the courts in the case s the majority cites never had to decide the issue. I ndeed, as
J enkins open ly admits in his brief, no court in Texas has square ly decide d what the lang uag e of Section 143.053(g ) mea

ns in this contex t.
The issue befor e the Court appea rs to be one of first i m p re s s i o n
. I have found no

case direc tly on point. Ba sed on my revie w of the case law, the case most analog ous to our prese nt
situation is the Texas Supreme Court’s decision in Bichsel v. Carver , 321 S.W .2d 284 (Tex. 1959). Although not dire ctly

on point, the supr eme court’s r easoning in Bichsel

is instructive. There , the City of San Antonio suspe nded a police office r, char g ing him with violating depar tment r ules. Id

.
at 2 8 5

. The City then conce ded that the char g es wer e leg ally insufficient and soug ht to amend
the cha rg es to alleg e violation of loca l civil service r ules. As the supre me cour t noted, “The Civil
Service Act

. . . say s that policemen may be suspended only for violations of civil s er v i ce ru les.
So the second set of char g es alleg ed violations of cer tain civil servic e rules.” Id

. The problem 4
for the City was that the Act restric ted char g es to the o ri gi n al written statement and direc ted that

I ndeed, the Civil Service Act’s require ment that a depar tment head can only suspend a fire 4 fig hter or police office r for violation of a local civil service rule has rema ined u n ch ang ed in the fifty y ear s since the supreme court’s decision. Compare Tex. L oc. Gov’t Code § 143.052(b), with Bichsel v. Carver , 321 S.W .2d 284, 285 (Tex. 1959).
4the written statement and char g es “shall not be ame n d ed.” Id. ; see also Tex. L oc. Gov’t Code

§ 143.053(c) . The City

never theless contende d that it was entitled to amend the c harg es.
T h e s upreme court disposed of the City ’s arg ument based on the Act’s p la in la n g u a g e :

I f it wer e not for the above statute, this would be an entirely differ ent case
. We must agr ee wi th [t he police office r] and the courts below that the statute does limit the Chief t o his orig inal written charg es which may not b e am en d ed

. That i s what the Act say s. I t is not contende d that the statute is ambig uous, and its validity is not att ac k ed. I t is our duty , then, to follow it. The wisdom of the provision is a leg islative matter.

Bischel , 321 S.W .2d at 286. The c ourt then we nt on to conclude that even if the amendment wer e
allowed by statute, it was filed too late in time. Id. at 287. The court conclude d i t s o p i n i o n by stating tha t “[s] ince the c harg es bef ore the Civil Service Boa rd we re not leg ally

broug ht under the

statute in question, the Chief of Police was not authorized to remove [t he office r] on them, and the
Boa rd had no a

uthority to proce ed to uphold his suspension under them.” Id

. Although it did not direc tly decide the issue befor e us now, the supreme court’s leg al

rea soning and rea ding of the C ivil Service Act is telling. The court enfor ced t h e Ac t based on its plain meaning , even though it is fairly obvious from the opinion th at the court was not entirely
comforta ble with the result compelled by that rea ding. Neve rtheless, the court rec og nized that
absent ambig uity , the statute must be applied as written, and that it was up to the leg islature to chang e the statute i f t h e p l ai n m eaning is not what it intended. The court also noted t hat i ts plain

rea ding of the statute—which protec ted the po l i ce o ff i cer’s rig hts—made sense, g iven that one
purpose of the Act is to protec t the rig hts of t h o s e who serve as fire fig hters and police office rs.
Id. at 286.

5Her e, the plain meaning of t he st atute shoul d likewise be enfor ced. Doing so does

not promote form over substance, as the majority decr ies. I t simply car ries out what the leg islature
instructed. Doing so also does not c ontrave ne the purpose of the statute, as the majority contends.
I n fa ct , it serve s the s ame purpose not ed by the s upreme court in Bichsel —to protec t the rights o f
those who serve as fire fig hters. See generally Talley v. City of Kill een , 418 S.W .3 d 2 0 5 (Tex. App.–Austin 2013, pet. denied) (en fo rc i n g lang uag e of Act for protec tion of police office r wher e city rule was c ontrary

to A ct). Finally , apply ing the Act’s plain lang uag e does not, a s the majority
cl ai m s , l ead to an absurd result any more than the supreme court’s decision in Bichsel did b y n o t allowing the city to amend its char g es from a violation of depar tm en t rules to a violation of civil
service rules. 5
The L eg islature promulg ated protec tions for suspended police o ffice rs and fire fig hters in the Act. Neither the Court nor any party to this proce eding claims that the l ang uag e of
Section 143.053(g ) is ambig uous or invalid. The stat u t e’ s lang uag e is plain—the hear ing office r

I ndeed, apply ing the p l ai n l an gu age of the Act leads to a less absurd result than the 5
ar g ument made by the City that J enkins’s suspension could be upheld for violations o f S ec t i o n 143.051 of the L ocal Gover nment Code alone. That provision provides: “A commission rule presc ribing cause for removal or suspension of a fire fig hter o r pol ice officer is not valid unless it involves one or more of the following g rounds.” Tex L oc. Gov’t Code § 143.051. The statute then lists t hose g rounds.
Section 143.051, on its fac e, mere ly establish es para meters for rules that may be promulg ated by a commission to serve as the basis for the suspension of a fire fig hter. I t does not, in and of itself, provide g rounds for a particula r fire fig hter’s suspension. For example, under Section 143.051(11),
a commission may adopt a rule that a fire fig hter’s “shirking duty or cowa rdice at fires” is a g round for suspension. Howeve r, there is nothing in Sec tion 143.051 that require s a commission to adopt such a rule. I f Section 143.051 wer e a valid basis for a char g e leading to suspension in and of itself, as the City contends, then a fire fig hter in a particula r locality could be suspended for cowa rdice at fires, e ven if the c ommissi on in his locality never adopted suc h a civil servic e rule

. 6could sustain J enkins’s suspension only on the basis of a violation of the City ’s Civil Service Rules.

Be cause the hearing office r ex ceed ed h i s jurisdiction by sustaining J enkins’s sus pension on other

g rounds, the trial court had jurisdiction over J enkins’s appea l and should have denied the City ’s plea

to the jurisdiction. Acc ording ly , I would reve rse th e t ri al court’s g rant of the City ’s plea to the jurisdiction and rema

nd this case to the tria l court for further proce eding s.

__________________________________________ Scott K. Field, Just ice
Be fore J ustices Pury ear , Goodwin, and F ield
Filed: Jul y

24, 2014

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