City of Houston v. Jackson

• Decision Date: 22 March 2001
• Citation: 42 S.W.3d 316
• Parties: <!--42 S.W.3d 316 (Tex.App.-Houston 2001) THE CITY OF HOUSTON AND LESTER TYRA, IN HIS OFFICIAL CAPACITY, Appellants v. ROBERT JACKSON, Appellee NO. 14-00-00750-CV Court of Appeals of Texas, Hosuton (14th Dist.)
• Court: Texas Court of Appeals

Page 316

42 S.W.3d 316 (Tex.App.-Houston [14th Dist.] 2001)

THE CITY OF HOUSTON AND LESTER TYRA, IN HIS OFFICIAL CAPACITY, Appellants v ROBERT JACKSON, Appellee

NO. 14-00-00750-CV

Court of Appeals of Texas, Hosuton (14th Dist.).

March 22, 2001.

On Appeal from the 125th District Court Harris County, Texas Trial Court Cause No. 98-55144.

Panel consists of Justices Yates, Wittig, and Frost.

OPINION

Wittig, Justice.

This is a City of Houston jurisdictional claim against one of its firefighters. When the Houston Fire Department denied his voluntary transfer to a different fire station, Robert Jackson resorted to the statutory grievance process. A grievance examiner ordered the fire department to grant Jackson a transfer to certain stations of his choice. The department refused appellee's transfer requests and he brought this suit seeking damages and declaratory relief. The City filed a plea to the jurisdiction alleging Jackson did not receive a final order, thus did not exhaust all administrative remedies. The court denied the plea and the City brings this interlocutory appeal requesting we determine whether the trial court has subject matter jurisdiction to consider appellee's claims. We hold it does and affirm.

Factual and Procedural Background

Jackson currently works as an engineer/operator for the Houston Fire Department ("HFD").¹ Beginning in 1996, he made several attempts to transfer to station 70, all of which were denied. Jackson then filed a grievance under chapter 143 of the Texas Local Government Code, commonly known as the Fireman's and Policeman's Civil Service Statute, to accomplish the transfer.

The administrative grievance process that Jackson undertook consists of as many as four steps. See Tex. Loc. Gov't. Code Ann. §§ 143.127(d) - 143.131. Jackson was denied a transfer under Steps I and II. He then had a choice between appealing to an "independent third party hearing examiner" under section 143.129 or to a "grievance examiner" under section 143.130 (who is chosen by the civil service commission pursuant to section 143.132). Jackson chose the latter. The grievance examiner, Yolonda Coroy, held a hearing and, on November 21, 1996, submitted her "Written Findings and Recommendation for a Solution" pursuant to section 143.130(d).² While she denied Jackson's specific request to be transferred to Station 70, she did order the department to grant Jackson's request for a transfer to any other station that had an opening available at the time. In the same document, the grievance examiner also informed the parties they had fifteen days "in which to file a written appeal requesting a review by the Civil Service Commission. . . ."

Neither party filed a step IV grievance procedure, which is an appeal to the commission. Therefore, the grievance examiner's decision was "considered accepted" by the parties. Id. at 143.130(e). Jackson requested transfers to Stations 11B and 72D. The City refused to follow the examiner's decision. The City's human resources and legal departments then wrote a series of letters between themselves, debating the meaning of the grievance examiner's order, including, among other things, whether Jackson's transfer should take precedence over those of other personnel with more seniority than Jackson. Nearly five months after her original order was issued without compliance, the grievance examiner issued a "Written Clarification of Order" dated March 13, 1997. She noted that the clarification was necessary to "reiterate the intent of [her original] order and give [Jackson] a fair opportunity to effect a transfer." She went on to hold that, upon Jackson's submitting a transfer request, the City was ordered to grant the request, regardless of the seniority of other applicants. Jackson then requested transfers to numerous other stations, all of which were in turn denied. Jackson filed a step I grievance for denial of his last transfer requests; however, an assistant chief summarily dismissed it in a letter, asserting, "I cannot rule on a grievance that has been decided by a grievance examiner."

Jackson sued in district court, making a claim under section 143.134(h), which states:

If the decision of the commission under Section 143.131 or the decision of a hearing examiner under Section 143.129 that has become final is favorable to a fire fighter, the department head shall implement the relief granted to the fire fighter not later than the 10th day after the date on which the decision was issued. If the department head intentionally fails to implement the relief within the 10-day period, the municipality shall pay the fire fighter $1,000 for each day after the 10-day period that the decision is not yet implemented.

Id. at 143.134(h). The City filed a plea to the jurisdiction alleging the court did not have jurisdiction to hear a claim under this provision. The plea was initially granted, but on reconsideration, the trial court denied the plea. The City now brings an interlocutory appeal of that decision.

Discussion

A plea to the jurisdiction contests the court's authority to determine the subject matter of the cause of action. City of Houston v. Lazell-Mosier, 5 S.W.3d 887, 889 (Tex. App.--Houston [14th Dist.] 1999, no pet.). It 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 ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The claims may form the context in which a dilatory plea is raised, but the plea should be decided without delving into the merits of the case. Id. The purpose of a dilatory plea is not to force the plaintiff to preview its case on the merits but to establish a reason why the merits of the plaintiff's claims should never be reached. Id. In deciding whether to grant a plea to the jurisdiction, the trial court normally looks only to the allegations in the petition. Id. When reviewing a trial court order granting a plea to the jurisdiction, an appellate court construes the pleadings in favor of the plaintiff and looks to the pleader's intent. Id.

As stated, Jackson's petition asserted a claim under section 143.134(h). The City argues that there are only two final decisions which would trigger liability under this section: (1) a decision of the commission under section 143.131, or (2) the decision of a hearing examiner under section 143.129. Jackson pursued his grievance under section 143.130(a) for his step III hearing. The City maintains that section 143.134(h) is "clear and unambiguous" and in such a case, the court must presume the legislature meant what it said and the court has no authority to add or subtract from the statute's wording. Ex parte Current, 877 S.W.2d 833, 837 (Tex. App.--Waco 1994, no pet.) Further, a court normally looks to a statute's plain meaning when it is unambiguous. Fleming Foods of Tex., Inc., v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). Thus, the City argues, since a decision by a grievance examiner under 143.130 is not contemplated under the plain meaning of section 143.134(h), the trial court had no jurisdiction to consider Jackson's claim, and we must end our inquiry here and dismiss Jackson's claims.

Section 143.134(h) is not as pellucid as the City pleas. The statute may be crystalline and unambiguous in the abstract, but reveals a latent ambiguity in our scenario. That is, while the statute makes it clear how a grievant is to proceed to enforce a final favorable order under sections 143.131 or 143.129, it is not at all patent how a grievant with a final favorable order under 143.130 should proceed when the other party, required to perform certain acts under the order, neglects to appeal and refuses to comply with the order.³

Thus, we must discern the intent of the legislature as it applies to this situation. Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996) (a court must attempt to ascertain what the legislature intended and interpret the statute accordingly). Legislative intent should be determined from the entire legislative act, and not simply from isolated portions. Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998). As such, we must read the statute as a whole and interpret it to give effect to every part. Id. We must resolve any ambiguities by rejecting interpretations which defeat the purpose of the legislation as long as another reasonable interpretation exists. Citizens Bank v. First State Bank, 580 S.W.2d 344, 348 (Tex. 1979). A too-literal construction of a statute, which would prevent the enforcement of it according to its true intent, should be avoided. State v. Dyer, 200 S.W.2d 813, 815 (1947).⁴

We are also guided by the legislature itself in interpreting its acts. The Code Construction Act states, in pertinent part, that when construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider, among other matters: the (1) object sought to be attained; (2) circumstances under which the statute was enacted; and (3) consequences of a particular construction. Tex. Gov't Code Ann. § 311.023.

In ascertaining the legislature's intent, we begin by looking to the provisions governing an appeal from the grievance examiner to the commission. Section 143.130(e) states:

If the [grievance examiner's] proposed solution is not acceptable to either the fire fighter or police officer or the department head, either party may file a step IV grievance form with the director in accordance with Section 143.131. If the fire fighter or police officer or the department head fails to timely file a step IV grievance form, the solution is considered accepted by that person.

Tex. Loc. Gov't. Code Ann. § 143.130(e). Where section 143.130 ends with the procedure for appealing the grievance examiner's proposed solution,⁵ section 143.131 picks up. It states, in relevant part:

(a) If the department head or the fire fighter or police officer rejects the proposed solution...