City of Waco, Tx. v. Bittle

• Decision Date: 16 March 2005
• Docket Number: No. 10-03-00098-CV.,10-03-00098-CV.
• Citation: 167 S.W.3d 20
• Parties: CITY OF WACO, TEXAS, Appellant, v. Louis E. BITTLE, Appellee.
• Court: Texas Supreme Court

167 S.W.3d 20

CITY OF WACO, TEXAS, Appellant, v. Louis E. BITTLE, Appellee.

No. 10-03-00098-CV.

Court of Appeals of Texas, Waco.

March 16, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Art Pertile, Christopher Taylor, Kevin W. Cole, Waco, for appellant.

R. John Cullar, Mills & Cullar, L.L.P., Waco, B. Craig Deats, P.C., Austin, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA, Justice.

An independent hearing examiner determined that the City of Waco had improperly suspended Louis Bittle from his position as a firefighter and later ordered the City to restore to Bittle the compensation and benefits he lost as a result of the suspension. A dispute arose over the manner in which the City sought to restore Bittle's compensation and benefits, and Bittle filed suit. The trial court granted Bittle's motion for summary judgment, finding that the City had failed to comply with the hearing examiner's decision and with section 143.053(f) of the Local Government Code and that Bittle is entitled to mandamus relief directing the City to pay Bittle the compensation and benefits due him.

The city contends in three issues that: (1) a genuine issue of material fact exists on the question of whether the City failed to comply with the hearing examiner's decision and with section 143.053(f); (2) a genuine issue of material fact exists on the question of whether the attorney's fees awarded were reasonable and necessary; and (3) the trial court did not have jurisdiction to entertain Bittle's suit because (A) governmental immunity bars the suit and (B) Bittle failed to exhaust his administrative remedies.¹ We will reverse and remand.

BACKGROUND

The City indefinitely suspended Bittle for failing a breath-alcohol test given with a promotional exam. At the time of suspension, Bittle had accrued the following hours of leave: 1268.5 sick, 216 vacation, and 48 holiday. The City treated the suspension as a termination and paid him $20,462.23, which was a "cash out" of the following hours of leave: 1080 sick, 216 vacation, and 48 holiday.

Bittle timely appealed the indefinite suspension to an independent, third-party hearing examiner.² Following a hearing, the hearing examiner issued his decision, which stated in relevant part:

Since the City has not met its burden of establishing that Louis Bittle was under the influence, indefinite suspension is not the appropriate remedy. Mr. Bittle is to be reinstated to the position he held August 31, 2001. He is entitled to a new promotional physical. Then, upon reinstatement on February 15, 2002, he will submit to a physical so the City's promotion policies can be complied with, and he can be, upon passing the physical, promoted to lieutenant The arbitrator maintains jurisdiction to assist the parties.

Bittle was reinstated and returned to work. Subsequently he inquired of the City whether he would receive back pay. Because the hearing examiner's decision did not mention back pay, the City requested reconsideration/clarification of whether Bittle was entitled to same. The City argued that he was not because (1) the time he was off without pay is the appropriate discipline for failing the breath-alcohol test and for failing to mitigate his damages and (2) there is no evidence in the record upon which to base such an award. The hearing examiner issued the following decision:

Having found that the City failed to meet its burden of proof, we ordered Mr. Bittle to be reinstated to the position he held August 31, 2001. He is entitled to compensation for the actual time lost as a result of the suspension. He is entitled to the wages he would have earned had he not been improperly suspended. All his rights and benefits are restored. If there is no basis for disciplinary action, there is no basis to treat the period of time it took to reinstate Louis Bittle as time off without pay. He is returned to work with back pay, minus interim earnings.

Award

Mr. Louis Bittle is to be paid all wages and benefits due from September 5, 2001, to his reinstatement on February 15, 2002, minus interim earnings.³

Bittle then sent a written demand to the City to comply with section 143.053(f), which states in pertinent part:

If the suspended fire fighter or police officer is restored to the position or class of service from which the person was suspended, the fire fighter or police officer is entitled to:

(1) full compensation for the actual time lost as a result of the suspension at the rate of pay provided for the position or class of service from which the person was suspended; and

(2) restoration of or credit for any other benefits lost as a result of the suspension, including sick leave, vacation leave, and service credit in a retirement system.

TEX. LOC. GOV'T CODE ANN. § 143.053(f) (Vernon Supp.2004-2005).

When Bittle did not receive the back pay he demanded, he filed suit alleging:

(1) The decision of the hearing examiner is final and binding on all parties.

(2) Defendant has failed to comply with the final decision of the hearing examiner and Texas Local Government Code § 143.053(f).

(3) Plaintiff is entitled to mandamus relief requiring the City to (1) pay him "full compensation for the actual time lost as a result of the suspension," and (2) restore and give credit for the sick leave, vacation leave, and holiday leave lost as a result of the suspension, pursuant to Texas Local Government Code § 143.053(f).

The City asserted a plea to the jurisdiction in its original answer contending that Bittle failed to exhaust his administrative remedies. In an amended answer, the City raised the issue of governmental immunity and filed a countersuit seeking (1) a declaration that section 143.053(f) does not require the City to restore Bittle's lost compensation and benefits in the manner sought by Bittle, (2) a declaration that restoring the compensation and benefits in the manner sought would result in an unconstitutional gift of public funds in violation of article III, section 52(a) of the Texas Constitution, and (3) reasonable and necessary attorney's fees.

The summary judgment granted in favor of Bittle states in relevant part:

IT IS FURTHER ORDERED, ADJUDGED AND DECLARED that the January 28, 2002, decision of the hearing examiner is final and binding on all parties.

IT IS FURTHER ORDERED, ADJUDGED AND DECLARED that Defendant has failed to comply with the final decision of the hearing examiner and Texas Local Government Code § 143.053(f).

IT IS FURTHER ORDERED, ADJUDGED AND DECLARED that Plaintiff is entitled to mandamus relief requiring the City to (1) pay him "full compensation for the actual time lost as a result of the suspension" (in the total sum of $19,914.56), and (2) restore and give credit to Plaintiff for sick leave, vacation leave, and holiday leave lost as a result of the suspension (263.5 hours of sick leave⁴, 75 hours of vacation leave, and 48 hours of holiday leave), pursuant to Texas Local Government Code § 143.053(f), for which a writ of mandamus shall be issued by the Clerk of the Court to be served on Defendant.⁵

...

All relief requested in this case and not expressly granted is denied. This judgment finally disposes of all parties and claims and is appealable.

JURISDICTION

The City contends in its first issue that the trial court did not have jurisdiction to entertain Bittle's suit because governmental⁶ immunity bars the suit and Bittle failed to exhaust his administrative remedies. However, because Bittle's suit for declaratory relief does not seek to impose liability on the City and because Bittle exhausted all available administrative remedies, the City's immunity is not implicated, and the trial court had jurisdiction.

Suit for Declaratory Judgment

The Uniform Declaratory Judgments Act authorizes a person who is "affected by a statute" to "have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status, or other legal relations thereunder." TEX. CIV. PRAC. & REM.CODE ANN. § 37.004(a) (Vernon 1997). Thus,

Private parties may seek declaratory relief against state officials who allegedly act without legal or statutory authority. This is because suits to compel state officers to act within their official capacity do not attempt to subject the State to liability. Therefore, certain declaratory-judgment actions against state officials do not implicate the sovereign-immunity doctrine.

Tex. Nat. Resource Conservation Commn. v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002) (plurality) (citations omitted).

In contrast, declaratory-judgment suits against state officials seeking to establish a contract's validity, to enforce performance under a contract, or to impose contractual liabilities are suits against the State. That is because such suits attempt to control state action by imposing liability on the State. Consequently, such suits cannot be maintained without legislative permission. And, private parties cannot circumvent the State's sovereign immunity from suit by characterizing a suit for money damages, such as a contract dispute, as a declaratory-judgment claim.

Id. at 855-56 (citations omitted).

These same principles apply to declaratory judgment actions brought against municipalities. See Tex. Mun. Power Agency v. Pub. Util. Commn., 100 S.W.3d 510, 515-17 (Tex.App.-Austin 2003, pet. denied);⁷ City of San Benito v. Ebarb, 88 S.W.3d 711, 721-22 (Tex.App.-Corpus Christi 2002, pet. denied).

The City contends that, because Bittle's suit seeks restoration of compensation lost as a result of his suspension, the suit is one for money damages. Applying this characterization, the City posits that under the rule of IT-Davy the City's immunity from suit is not waived by the Uniform Declaratory Judgments Act. See IT-Davy, 74 S.W.3d at 855-56; Ebarb, 88 S.W.3d at 722-24. We disagree with the City's characterization of Bittle's suit.

When a...