NUMBER 13-10-00688-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CITY OF MISSION, TEXAS, Appellant,

v.

ALEJANDRO GONZALEZ, Appellee.

On appeal from the 332nd District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Benavides

Memorandum Opinion by Chief Justice Valdez

Appellant, the City of Mission, appeals from the district court’s dismissal of its suit 

challenging the award of an independent hearing examiner that reinstated appellee, 

Alejandro Gonzalez, a firefighter, who appellant had suspended indefinitely (i.e., 

terminated) from employment.1 By three issues, appellant argues that the dismissal of 

 

1

See Miller v. City of Houston, 309 S.W.3d 681, 684 (Tex. App.—Houston [14th Dist.] 2010, no 

pet.) (“Indefinite suspension is the equivalent of termination[.]”).
2

its suit for lack of jurisdiction was improper because: (1) the district court has 

jurisdiction to decide whether a hearing examiner exceeded his jurisdiction; (2) the 

district court has jurisdiction to decide whether a hearing examiner’s award was 

procured by “unlawful means”; and (3) appellant was prevented from deposing Jessica 

Martinez prior to the granting of appellee’s plea to the jurisdiction. We affirm.

I. BACKGROUND

A. Notice of Indefinite Suspension

In a notice letter dated April 29, 2010, appellant informed appellee that he was 

being indefinitely suspended from employment. The notice letter set forth two grounds 

for the disciplinary action: (1) improper conduct by appellee in (a) permitting a female

visitor to have access to the fire station at unauthorized hours and (b) allowing her to 

use his security “swipe” card; and (2) “inappropriate behavior” that occurred during the 

visit.

B. Appeal to Independent Hearing Examiner

Appellee denied the charges and appealed to an independent hearing examiner, 

who held an evidentiary hearing and subsequently issued a report describing the 

evidence presented at the hearing.2 According to the report, the examiner found that 

“appellee engaged in the conduct set forth in the notice of disciplinary action as it 

pertained to violation of rules on visitors and the misuse of his personal identification 

‘swipe’ card.” The examiner found that there was no evidence to support the charge of 

other “inappropriate behavior.” In his report, the examiner concluded that “disciplinary 

action appropriate to those violations [was] warranted.”

 

2

Appellee’s written request for a hearing and denial of the charges made against him was dated 

April 30, 2010. The hearing before the hearing examiner was held on August 12, 2010.
3

The report went on to note, however, that “[i]ndefinite suspension (termination) is 

the extreme disciplinary action reserved for internal ‘capital offenses’ such as theft, 

fighting, lawbreaking, safety breaches, and other violations that may not require the use 

of progressive discipline.” According to the report, “Testimony from several witnesses 

revealed that it was commonplace for violations of the visitor policy throughout the 

various fire stations in the department, [to go] without disciplinary actions.” The hearing 

examiner also found it significant that “[t]here was no evidence presented . . . to support 

an assumption [that] ‘inappropriate behavior’” took place during the visit, as alleged in 

the notice of suspension. Based on the foregoing, the examiner concluded that “a 

reasonable person would agree that the charges in [and] of themselves do not support 

the extreme discipline of indefinite suspension (termination).”

In his report, the hearing examiner also noted:

[Appellee] admitted to violations of . . . department rules to the extent such 

violations were supported by the evidence and he stated he would not 

repeat such violations in the future. His actions were a result of personal 

problems with the mother of his child and he admitted he did not consider 

consequences. His actions created no harm or damage to the department 

nor was there any evidence presented by [appellant] claiming actual harm 

or damage . . . . 

Ultimately, the examiner concluded that the indefinite suspension was excessive for the 

violations committed and ordered the indefinite suspension reduced to a temporary 

suspension without pay for a term of ten days, awarding appellee back pay, less the 

period of suspension. 

C. Proceedings in District Court 

Subsequently, appellant filed an action for declaratory judgment in district court, 

seeking to overturn the examiner’s award. Appellant alleged two grounds for relief: (1) 
4

the examiner exceeded the scope of his authority by making a finding about a charge of 

sexual harassment that was not made in the notice of indefinite suspension; and (2) the 

examiner’s award was procured by “unlawful means” because appellee was untruthful 

in his testimony during the hearing. Appellee filed a plea to the jurisdiction, which was 

granted by the district court. The district court also granted a motion for protective order 

filed by appellee in response to appellant’s notice of deposition and discovery subpoena 

for appellee’s female visitor. This appeal ensued. 

II. DISCUSSION

By three issues, appellant argues that the district court erred in granting 

appellee’s plea to the jurisdiction.

A. Standard of Review

A plea to the jurisdiction is a dilatory plea used to defeat a cause of action 

without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. 

Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject 

matter jurisdiction. Id.; see Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 

1999). Whether a trial court has subject matter jurisdiction is a question of law that we 

review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 

2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 

2002).

The plaintiff has the burden to plead facts affirmatively showing that the trial court 

has jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 

1993); City of Fort Worth v. Davidsaver, 320 S.W.3d 467, 473 (Tex. App.—Fort Worth 

2010, no pet.). We construe the pleadings liberally in favor of the pleader, look to the 
5

pleader’s intent, and accept as true the factual allegations in the pleadings. See 

Miranda, 133 S.W.3d at 226, 228; City of Fort Worth v. Crockett, 142 S.W.3d 550, 552 

(Tex. App.—Fort Worth 2004, pet. denied). If a plea to the jurisdiction challenges the 

existence of jurisdictional facts, we consider relevant evidence submitted by the parties 

when necessary to resolve the jurisdictional issues raised, as the trial court is required 

to do, even those facts which may implicate the merits of the cause of action. Miranda, 

133 S.W.3d at 227; Blue, 34 S.W.3d at 555 (confining evidentiary review to evidence 

that is relevant to the jurisdictional issue); see City of Waco v. Kirwan, 298 S.W.3d 618, 

622 (Tex. 2009).

A trial court’s review of a plea to the jurisdiction challenging the existence of 

jurisdictional facts mirrors that of a traditional motion for summary judgment. Miranda, 

133 S.W.3d at 228; see TEX. R. CIV. P. 166a(c). The defendant is required to meet the 

summary judgment standard of proof for its assertion that the trial court lacks 

jurisdiction; once the defendant meets its burden, the plaintiff is then required to show 

that there is a disputed material fact regarding the jurisdictional issue. Miranda, 133 

S.W.3d at 228. If the evidence creates a fact question regarding jurisdiction, the trial 

court must deny the plea to the jurisdiction and leave its resolution to the fact finder. Id. 

at 227-28. On the other hand, if the evidence is undisputed or fails to raise a fact 

question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as 

a matter of law. Id. at 228.

B. Applicable Law

“A district court may hear an appeal of a hearing examiner’s award only on the 

grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or 
6

that the order was procured by fraud, collusion, or other unlawful means.” TEX. LOC.

GOV'T CODE ANN. § 143.057(j) (West 2008). The statute refers to an “arbitration panel”

exceeding its jurisdiction, but the term includes a hearing examiner. City of Pasadena 

v. Smith, 292 S.W.3d 14, 19 (Tex. 2009).

C. Analysis

1. Jurisdiction of Hearing Examiner

In its first issue, appellant argues that the district court erred in concluding that 

the hearing examiner did not exceed his jurisdiction. A hearing examiner exceeds his 

jurisdiction when his acts are not authorized by the Fire Fighters and Police Officers 

Civil Service Act (the “Act”) or are contrary to it, or when they invade the policy-setting 

realm protected by the non-delegation doctrine. Id. at 21.

In its live petition, appellant alleged that “the hearing examiner exceeded and/or 

lacked jurisdiction when he ordered the reinstatement of [appellee] to his job” because: 

(1) the examiner found that appellee had not committed a violation of Department policy 

that was never alleged (i.e., sexual harassment); and (2) the examiner stepped into the 

non-delegable role of policymaker when he concluded that the Department’s security 

policy should not be strictly enforced.

With regard to appellant’s first allegation (i.e., that the examiner exonerated 

appellant of sexual harassment), we note that the hearing examiner’s report, which was 

attached to appellant’s live petition and incorporated therein by reference, 

acknowledged appellant’s position that appellee “was not charged with ‘sexual 

harassment,’ [and] therefore, discussion of this claim was irrelevant.” Elsewhere in the

report, it is clear that the examiner wrestled with the question of whether an allegation of 
7

sexual harassment was included or could be implied in the notice of indefinite 

suspension, which used the murky language “inappropriate behavior.” This effort by the 

hearing examiner to determine the specific grounds for the disciplinary action imposed 

by appellant was consistent with his fact-finding role. See City of Athens v. MacAvoy, 

353 S.W.3d 905, 911 (Tex. App.—Tyler 2011, pet. denied) (“[T]he statutory scheme for 

hearing examiners is organized around the examiners acting as fact finders with respect 

to the allegations against covered employees.”).

In his report, the examiner returned repeatedly to appellant’s stated position that 

“this decision was not based on sexual harassment.” The report indicates that the 

examiner struggled with appellant’s position (i.e., that the charge of “inappropriate 

behavior” did not include a sexual-harassment component). Ultimately, the examiner

offered the following remarks to reconcile what he perceived to be an inconsistency in 

appellant’s position:

I have determined in agreement with [appellant] that the entire issue of 

“sexual harassment” was not the sole factor for disciplinary action in this 

case. Although there was considerable dialogue related to the subject 

and evidence presented reflecting disparity [in] treatment, it is this 

arbitrator’s opinion that we must restrict the case to the evidentiary 

findings. [Appellee] did in fact violate certain rules and regulations and 

therefore, disciplinary action appropriate to those violations is warranted.

According to the report, the examiner found some of the violations to be true, but 

he found “no evidence” to support the allegation of “inappropriate behavior.” The 

examiner was careful to note that he was not considering what he perceived to be the 

sexual-harassment component of the allegation. The report concludes with the 

examiner’s finding that “[i]f, in fact, the sexual harassment issue is not to be considered, 
8

then a reasonable person would agree that the charges [found to be true] in [and] of 

themselves do not support the extreme discipline of indefinite suspension (termination).” 

Appellant contends that the examiner exonerated appellee of a charge of sexual 

harassment thereby exceeding his jurisdiction. We disagree. In his report, the

examiner: (1) acknowledged appellant’s position that “the sexual harassment issue is 

not to be considered”; (2) indicated that he would not consider the sexual harassment 

issue; and (3) concluded that on their own, the other charges that he found to be true

“do not support the extreme discipline of indefinite suspension (termination).” Although 

appellant suggests that the examiner’s decision was based solely on his consideration 

of the sexual harassment charge, the foregoing demonstrates that the examiner based 

his decision on his finding that “appellee engaged in the conduct set forth in the notice 

of disciplinary action as it pertained to violation of rules on visitors and the misuse of his 

personal identification ‘swipe’ card.” The examiner found no evidence to support the 

charge of other “inappropriate behavior.” The examiner found that the charges did not 

support the indefinite suspension and therefore reduced it to a temporary (10-day) 

suspension. His report indicates that the sexual harassment issue, if considered as a 

charge and found to be true, may have possibly supported the imposition of the more 

severe disciplinary action of indefinite suspension. Accordingly, we conclude that 

appellant has not established that the district court erred in ruling that the examiner did 

not exceed his jurisdiction in making this decision.

We reach the same conclusion with regard to appellant’s second allegation (i.e., 

that the examiner ruled that the Department’s security policy should not be strictly 

enforced). Nowhere in the report does the examiner suggest that the Department’s 
9

security policy should not be strictly enforced. Nor did the examiner seek to impose a 

new rule or policy. See City of Pasadena, 292 S.W.3d at 20 (“[T]he Act does not 

empower a hearing examiner to make rules.”). The examiner performed his proper factfinding function by determining “the truth of the specific charges against the fire fighter.” 

TEX. LOC. GOV’T CODE ANN. § 143.053(c), (g) (West 2008). Specifically, the examiner 

found the charges involving violations of the visitation rules and security policy to be 

true and found the charge involving “inappropriate behavior” not to be true. Thereafter, 

the examiner exercised his statutory authority to determine the discipline to be imposed. 

See City of Waco v. Kelley, 309 S.W.3d 536, 545 (Tex. 2010) (“When a classified 

employee appeals an indefinite suspension and the charges are found to be true, the 

Act affords a hearing examiner options as far as the discipline to be imposed.”).

Appellant contends that by choosing to impose a 10-day temporary suspension 

instead of an indefinite suspension, the examiner invaded a policy-setting realm

protected by the non-delegation doctrine; however, the law gives a hearing examiner 

the authority to select among “options as far as the discipline to be imposed.” Id.; see 

also City of Lancaster v. Clopton, 246 S.W.3d 837, 841 (Tex. App.—Dallas 2008, no

pet.) (“A hearing examiner has the authority and jurisdiction to reduce the length of an 

indefinite suspension, even if the charges are found to be true.”). Appellant’s contention 

is essentially that the hearing examiner’s decision was “wrong” because more severe 

disciplinary action was appropriate. We agree with the district court that this complaint 

is not within its jurisdiction. See City of Pasadena, 292 S.W.3d at 21 (“Asserting that a 

decision made by the hearing examiner is incorrect is not the same as asserting that the 
10

examiner did not have jurisdiction.”); see also TEX. LOC. GOV’T CODE ANN. § 143.057(j). 

Accordingly, we overrule appellant’s first issue.

2. Award Procured by “Unlawful Means”

In its second issue, appellant contends that the district court has jurisdiction to 

determine whether appellee procured the hearing examiner’s award by “unlawful 

means.” TEX. LOC. GOV’T CODE ANN. § 143.057(j). 

The decision of a hearing examiner is “final and binding on all parties,” City of 

Houston v. Jackson, 192 S.W.3d 764, 768 (Tex. 2006), and “[a]ppeals from an 

independent hearing examiner’s decision are severely circumscribed,” City of Houston 

v. Clark, 197 S.W.3d 314, 320 (Tex. 2006). The labor code provides that “[a] district 

court may hear an appeal of a hearing examiner’s award only on the grounds that the 

arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order 

was procured by fraud, collusion, or other unlawful means.” Id. “[I]f the examiner’s 

decision was procured by fraud, collusion, or other unlawful means, then 

[the] . . . proper relief . . . [is] the decision being vacated and a new hearing ordered.” 

City of Waco v. Kelley, 309 S.W.3d 536, 540, 552 (Tex. 2010).

“The standard set forth in section 143.057(j) has been interpreted as an ‘abuse of 

authority’ standard.” City of Garland v. Byrd, 97 S.W.3d 601, 607 (Tex. App.—Dallas 

2002, pet. denied) (citing Lindsey v. Fireman's & Policeman's Civil Serv. Comm'n of the 

City of Houston, 980 S.W.2d 233, 236 (Tex. App.—Houston [14th Dist.] 1998, pet. 

denied); Nuchia v. Tippy, 973 S.W.2d 782, 786 (Tex. App.—Tyler 1998, no pet.)). “An 

abuse of authority occurs when a decision is so arbitrary and unreasonable that it 

amounts to a clear and prejudicial error of law.” Id. (citing City of Carrollton Civil Serv. 
11

Comm'n v. Peters, 843 S.W.2d 186, 188 (Tex. App.—Dallas 1992, writ denied). 

“Although the abuse of authority standard may be strict, it is not meaningless.” Id.

Appellant argues that, in this case, the examiner’s award was procured by “other 

unlawful means” because it was based on appellee’s perjured testimony that he did not 

engage in any “inappropriate behavior,” as appellant charged in its notice letter. TEX.

LOC. GOV’T CODE ANN. § 143.057(j). Appellant has not cited, nor has this Court located, 

any Texas decision holding that “other unlawful means” in section 143.057(j) of the 

labor code includes perjured testimony.3

In the absence of controlling precedent under Texas law, we are guided by 

precedent interpreting analogous provisions under federal law. Rule 60(b)(3) of the 

Federal Rules of Civil Procedure provides in relevant part as follows:

On motion and upon such terms as are just, the court may relieve a party 

or his legal representative from a final judgment, order, or proceeding for 

the following reasons: . . . (3) fraud (whether heretofore denominated 

intrinsic or extrinsic), misrepresentation, or other misconduct of an 

adverse party.

FED. R. CIV. P. 60(b)(3). 

“One who asserts that an adverse party has obtained a verdict through fraud, 

misrepresentation or other misconduct has the burden of proving the assertion by clear 

and convincing evidence.” Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 

1978) (citing Saenz v. Kenedy, 178 F.2d 417, 419 (5th Cir. 1949); Gilmour v. Strescon 

 

3

In fact, we have found only two decisions interpreting or applying the statutory language “other 

unlawful means.” See TEX. LOC. GOV’T CODE ANN. § 143.057(j). In one decision, the Tyler Court of 

Appeals interpreted the phrase to mean that a “hearing examiner is bound by the same precedent and 

authority as the Civil Service Commission and the state courts.” Blair v. Razis, 926 S.W.2d 784, 789 

(Tex. App.—Tyler 1996, no pet.). In the other decision, the parties agreed that “because the examiner 

considered evidence that was not offered by either party during the hearing, the examiner’s order was 

procured by unlawful means, which violated [the employee’s] right to due process.” Steubing v. City of 

Killeen, 298 S.W.3d 673, 675 (Tex. App.—Austin 2009, pet denied). Neither decision provides much 

guidance for resolving appellant’s complaint in this case.
12

Indus., Inc., 66 F.R.D. 146, 153 (E.D.Pa.1975), aff'd without opinion, 521 F.2d 1398 (3d 

Cir. 1975)). “The conduct complained of must be such as prevented the losing party 

from fully and fairly presenting his case or defense.” Id. (citing Toledo Scale Co. v. 

Computing Scale Co., 261 U.S. 399, 421 (1923); Atchison, Topeka & Santa Fe Ry. Co. 

v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957); Rubens v. Ellis, 202 F.2d 415, 417 (5th 

Cir. 1953)). 

In this case, appellant argues that the hearing examiner did not believe the 

testimony of its eyewitness regarding appellee’s “inappropriate behavior” because

appellee gave perjured testimony denying that he engaged in the conduct at issue. Yet, 

the hearing examiner’s performance of this fact-finding function—choosing to reject the 

testimony of one witness while accepting that of another—is not “unlawful.” See City of 

Athens, 353 S.W.3d at 911; Xtria L.L.C. v. Int’l Ins. Alliance, 286 S.W.3d 583, 597 (Tex. 

App.—Texarkana 2009, pet. denied) (“In his authority as a fact-finder, [arbitrator] had 

the capability to judge the credibility of the witnesses before him and could choose to 

believe the testimony of International's witnesses.”). 

Moreover, the hearing examiner’s report, which was attached to appellant’s live 

petition and incorporated therein by reference, indicates that appellee’s allegedly 

perjured testimony was not the reason the examiner chose to reject the testimony of 

appellant’s eyewitness:

I have concluded that [appellant’s eyewitness] lacks credibility in her 

version of events because I cannot accept that someone that was 

supposedly so “humiliated and embarrassed” did not immediately report 

the events to management. Nor can I accept that despite her 

embarrassment, she remained in the room for open conversation with 

[appellee]. A reasonable person would have upon seeing something as 

she described immediately left the room and reported the incident to 
13

management. This did not occur nor did she inform management for 

nearly a month or more later. 

Based on the foregoing, it is clear that the hearing examiner found the witness to 

lack credibility based on her own testimony, not based on appellee’s testimony. There 

is nothing “unlawful” about the hearing examiner’s exercise of his fact-finding function in 

this regard. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (“[The factfinder is] the sole judge[] of the credibility of the witnesses and the weight to be given 

their testimony. [It] may choose to believe one witness and disbelieve another. 

Reviewing courts cannot impose their own opinions to the contrary.”). In sum, appellant 

failed to allege that the hearing examiner’s award was procured by “unlawful means” 

because appellant’s allegations affirmatively establish that it was not unlawfully deprived 

of a full and fair opportunity to litigate appellee’s claim that he did not engage in the 

“inappropriate behavior” charged in appellant’s notice letter. See Karaha Bodas Co., 

L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 307 

(5th Cir. 2004) (“Courts, however, have held that an arbitration award is not fraudulently 

obtained when the protesting party had an opportunity to rebut his opponent’s claims at 

the hearing.”); cf. Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 132 (Tex. App.—

Waco 2005, pet. denied) (newly discovered evidence alleging that a witness committed 

perjury was cumulative, impeaching, and not grounds for a new trial).

Appellant’s second issue is overruled.

3. Protective Order

In its third issue, appellant contends that the district court erred in granting 

appellee’s motion for protective order prohibiting the deposition of appellee’s female 

visitor, Jessica Martinez. The deposition was part of appellant’s effort to conduct 
14

discovery on its claim that appellee procured the hearing examiner’s award through 

perjured testimony. In a single order, the district court granted appellee’s plea to the 

jurisdiction and then found, based on that ruling, “the deposition of the witness is moot.” 

In addressing appellant’s first and second issues, we have held that the district 

court did not err in concluding that it lacked jurisdiction over appellant’s claims. 

Accordingly, we conclude that this issue is moot.

Appellant’s third issue is overruled.

III. CONCLUSION

The order of the trial court is affirmed.

____________________

ROGELIO VALDEZ

Chief Justice

Delivered and filed the 

30th day of August, 2012.