City of Houston v. Williams, 14-02-00695-CV.

• Court: Court of Appeals of Texas
• Citation: 99 S.W.3d 709
• Docket Number: No. 14-02-00695-CV.,14-02-00695-CV.
• Parties: CITY OF HOUSTON, Appellant, v. Steve WILLIAMS, Appellee.
• Decision Date: 06 February 2003

99 S.W.3d 709 CITY OF HOUSTON, Appellant,
v.
Steve WILLIAMS, Appellee. No. 14-02-00695-CV. Court of Appeals of Texas, Houston (14th Dist.). February 6, 2003.

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Carole Snyder, Timothy J. Higley, Houston, for appellants.

E. Troy Blakeney, Richard Charles Mumey, Houston, for appellees.

Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.

OPINION

EVA M. GUZMAN, Justice.

The City of Houston appeals from the trial court's denial of its plea to the jurisdiction. Appellee, Steve Williams, sued the City seeking a declaratory judgment the City violated statutory provisions in its disciplinary letter and thus his suspension is void. In its plea to the jurisdiction, the City argued that Williams failed to pursue his administrative remedies, the exhaustion of which is a prerequisite to filing suit. We reverse and render.

FACTUAL BACKGROUND

In the fall of 2001, a dispute developed within the City of Houston Fire Department regarding the number of firefighters to be assigned to certain types of fire trucks. The Fire Chief, Christopher Connealy, authorized the operation of such vehicles with only three firefighters, while the union, led by Captain Steve Williams, president of the Houston Professional

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Firefighters Association, advocated the assignment of four firefighters to each unit.

In October of 2001, Houston Mayor Lee Brown held a press conference where he discussed unit staffing levels. During the event, Michael Hermann, a member of the Chiefs staff, spoke favorably of both the Mayor and the Chief. Attending the event while in uniform and on duty, Williams reportedly interjected with an inappropriate remark questioning Herman's praise of city officials. Thereafter, Williams received a letter of temporary suspension, signed by Chief Connealy and dated April 15, 2002. Among other matters, the letter stated that Williams's comment violated Rule 8.06 of the Fire Department's Administrative Rules and Regulations, which states:

Members shall treat other members of the department with the respect and response due them as fellow members. They shall be courteous, civil and respectful of their superior officers and associates, and shall not use threatening or insulting language.

The letter also stated: "Captain Williams has accepted responsibility for his actions and has agreed to the temporary suspension with the waiver of any right to appeal said disciplinary action." Williams challenges the veracity of this statement and maintains that he never agreed to the suspension and did not waive his right to appeal. Attached to the letter was a "Receipt of Letter of Temporary Suspension," which explained rights and procedures for appealing the disciplinary action.

On April 26, 2002, Williams filed an appeal of his suspension to an independent hearings examiner. On May 2, 2002, he instituted the present lawsuit under the Declaratory Judgments Act, seeking a declaration that: (1) the City violated the letter and spirit of Local Government Code Chapter 143 (governing municipal civil servants) by submitting documents containing false statements regarding his right to appeal; and thus, (2) the suspension is void because it violates Chapter 143. The City filed a plea to the jurisdiction, the denial of which the City appeals.

POINTS OF ERROR

In two points of error, the City argues that: (1) the district court improperly denied the plea to the jurisdiction because Williams is attempting to judicially bypass the requirement to exhaust available administrative remedies prior to bringing suit; and (2) having submitted his suspension to a hearing examiner whose decision is binding upon all parties, Williams is not entitled to utilize statutory law to escape a potential adverse decision of the hearing examiner. For the sake of clarity, we discuss the second point of error first.

STANDARD OF REVIEW

Appellate courts review a trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). A plea to the jurisdiction is a dilatory plea, the purpose of which is 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 plaintiff bears the burden of alleging facts affirmatively demonstrating the trial court's jurisdiction to hear a case. Id.

JURISDICTION OF THE DECLARATORY JUDGMENT ACTION

In its second point of error, the City maintains the trial court improperly denied the City's plea to the jurisdiction because Williams is attempting to simultaneously avail himself of and collaterally attack the jurisdiction of the hearing examiner. In framing the issue in this manner, the City essentially challenges the

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propriety of a suit for declaratory judgment under the facts of this case. However, Williams argues that when a municipality has failed to comply with the statutory framework a suspended public employee may proceed directly to district court and thereby pursue both a suit for declaratory judgment and a disciplinary appeal through a hearing examiner.

The Texas Legislature has set forth a statutory framework governing the rights and responsibilities of municipal officers seeking to challenge disciplinary suspensions. See TEX. LOCAL GOV'T CODE ANN. § 143.101-143.363. Chapter 143 of the Local Government Code was enacted to create a fair, consistent, and orderly process for handling grievances by career firefighters and policemen. City of Houston v. Jackson, 42 S.W.3d 316, 322 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd w.o.j.); see also TEX. LOCAL GOV'T CODE ANN. § 143.001 ("The purpose of this chapter is to secure efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants.") Under this scheme, an officer may appeal his suspension either to the civil service commission or to an independent third-party hearing examiner. TEX. LOCAL GOV'T CODE ANN. § 143.1016(a); Moran v. City of Houston, 58 S.W.3d 159, 161 (Tex.App.-Houston [14th Dist.] 2001, no pet.).

Williams exercised his right to appeal by filing with the Police Officers' and Firefighters' Civil Service Commission his request for an independent hearing examiner. An officer who elects to submit his suspension to a hearing examiner waives his right to appeal to the district court except where: (1) the hearing examiner was without jurisdiction; (2) the hearing examiner exceeded his jurisdiction; or (3) the order was procured by fraud, collusion, or other unlawful means. TEX. LOC. GOV'T CODE ANN. § 143.1016(j). Thus, Williams has forfeited his right to appeal to the district court except on the grounds specifically designated by the statute.

Six days after filing his appeal, Williams filed suit seeking a declaratory judgment that the City had violated statutory law by giving him a disciplinary letter with patently false statements. A declaratory judgment action cannot create jurisdiction but is merely a procedural device for deciding cases already within a court's jurisdiction. See Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex.1996); Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993). Indeed, a suit for declaratory judgment does not allow a district court to review an agency action not otherwise reviewable. See Texas Comm'n of Licensing & Regulation v. Model Search Am., Inc., 953 S.W.2d 289, 291 (Tex.App.-Austin 1997, no writ). Under the facts of the present case, the district court would only acquire jurisdiction to review the award of the independent hearing examiner if the examiner was without jurisdiction or exceeded his jurisdiction in the making of the award. TEX. LOC. GOV'T CODE ANN. § 143.1016(j). If the district court does not acquire jurisdiction to determine the hearing examiner's jurisdiction until after the rendition of an award, it follows that it may not entertain a suit seeking a declaration that the hearing examiner is without jurisdiction until after the making of the award.

Nevertheless, Williams invokes our holding in Nuchia v. Woodruff, in which the City of Houston successfully sought a declaration that the hearing examiner's ruling surpassed the grant of jurisdiction afforded to him by the statute. 956 S.W.2d 612, 615-16 (Tex.App.-Houston [14th Dist.] 1997, pet denied). However, in that case, the hearing examiner had already conducted a hearing and determined that the officer should be demoted for a period of one

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month, after which he would resume his prior status as Sergeant. See id. at 615. The police chief disputed the hearing examiner's authority under the statute to do anything other than grant or deny his recommended demotion. Id. The City directly appealed the hearing examiner's award and alternatively requested a declaratory judgment that the hearing examiner had exceeded his jurisdiction. Id. Addressing only the City's claims under the Declaratory Judgment Act, we found the City did have a right to judicial review under the Act to determine if the hearing examiner in fact exceeded his authority. Id; see also City of Houston v. Clark, No. 01-01-00828-CV, 2002 WL 31771188, at *1 n. 1 (Tex.App.-Houston [1st Dist.] Dec. 12, 2002, no pet. h.) (not designated for publication) (finding the use of declaratory judgment appropriate to determine in City's direct appeal whether hearing examiner exceeded his jurisdiction after examiner conducted hearing and ruled on the merits). In the case at bar, however, the hearing examiner has yet to make a determination or even hold a hearing on the matter. Compare Henderson v. Office of Thrift Supervision, Dep't. of Treasury, 135 F.3d 356, 360 (5th Cir.1998) (noting that petitioner's claims were not ripe for judicial review partly because the administrative hearing had not yet occurred). To permit the use of a declaratory judgment...