City of Waco v. Kelley

• Decision Date: 02 May 2007
• Docket Number: No. 10-03-00214-CV.,10-03-00214-CV.
• Citation: 226 S.W.3d 672
• Parties: THE CITY OF WACO, Texas, Appellant, v. Larry KELLEY, Appellee.
• Court: Texas Court of Appeals

226 S.W.3d 672

THE CITY OF WACO, Texas, Appellant, v. Larry KELLEY, Appellee.

No. 10-03-00214-CV.

Court of Appeals of Texas, Waco.

May 2, 2007.

Art Pertile, City Attorney-City of Waco, Waco, Kevin W. Cole, Cole & Powell PC, Austin, for appellant.

LaNelle L. McNamara, Waco, Michael L. Rickman, Cleat Legal Services, San Antonio, Richard W. Carter, Fort Worth, for appellee.

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

OPINION ON REMAND

FELIPE REYNA, Justice.

The City of Waco appeals a summary judgment rendered in Larry Kelley's favor which affirmed the decision of an independent hearing examiner: (1) reducing Kelley's indefinite suspension as a police officer to a 180-day temporary suspension; (2) reinstating Kelley at the rank of sergeant; and (3) determining that Kelley "should be made whole subject to the normal principles of mitigation." The district court also awarded attorney's fees to Kelley. The City contends in four issues that: (1) the hearing examiner exceeded his jurisdiction by reducing Kelley's suspension after finding the charges true; (2) the hearing examiner exceeded his jurisdiction by demoting Kelley to the rank of sergeant; (3) the hearing examiner exceeded his jurisdiction by awarding back pay and benefits to Kelley; and (4) the district court erred by awarding attorney's fees to Kelley. Kelley contends in a cross-issue that the court erred by denying his appeal of the hearing examiner's refusal to dismiss the indefinite suspension because he was indefinitely suspended before he was convicted of the offense which was the basis for the suspension.

On original submission, this Court vacated the judgment of the trial court for want of jurisdiction and dismissed the appeal. City of Waco v. Kelley, No. 10-03-214-CV, 2004 WL 2481383 (Tex.App.-Waco Oct.29, 2004) (citing City of Houston v. Clark, 142 S.W.3d 350 (Tex.App.-Houston [1st Dist.] 2004)). On decisions issued the same day however, the Supreme Court reversed the decision of the First Court of Appeals in Clark and our decision in Kelley, concluding in both that the trial court had jurisdiction. See City of Waco v. Kelley, 197 S.W.3d 324, 325 (Tex.2006) (per curiam); City of Houston v. Clark, 197 S.W.3d 314, 324 (Tex.2006).

We will affirm in part and reverse and render in part.

Background

Kelley was Waco's Assistant Chief of Police in January 2001 when he was arrested in Austin for driving while intoxicated. After an internal investigation, Chief of Police Alberto Melis issued a letter of suspension on April 2, suspending Kelley indefinitely. Kelley appealed the suspension to an independent third party hearing examiner who issued his decision in June 2002. The hearing examiner found the charges to be true but reduced the indefinite suspension to a 180-day suspension with reinstatement at the rank of sergeant. The examiner also determined that Kelley "should be made whole subject to the normal principles of mitigation."

The City challenged this decision by appeal to district court under section 143.057(j) of the Local Government Code. See TEX. LOC. GOV'T CODE § 143.057(j) (Vernon Supp.2006). The City contended in its petition that the hearing examiner exceeded his jurisdiction by (a) considering evidence not presented at the hearing, (b) reducing the period of suspension and demoting Kelley, and (c) awarding back pay and benefits. Kelley filed a general denial, accompanied by: (a) a request to dismiss the City's appeal because there was no basis for the district court to assert jurisdiction under section 143.057(j), (b) a request that the district court reconsider the hearing examiner's denial of his motion to dismiss the indefinite suspension, and (c) a request for attorney's fees.

Kelley later filed a motion to dismiss the city's appeal to district court for want of jurisdiction alleging that Chapter 143 of the Local Government Code provides for an appeal of a hearing examiner's decision only by a fire fighter or police officer.

Kelley also filed a no-evidence summary judgment motion. In this motion, Kelley contended that the City could produce no evidence that the hearing examiner exceeded his jurisdiction. In a response, the City argued that the hearing examiner exceeded his jurisdiction by: (1) considering a document entitled a Blood Alcohol Content Calculator which was not presented during the hearing but attached to a post-hearing brief submitted by Kelley; (2) reducing Kelley's indefinite suspension to a 180-day suspension after finding the charges against Kelley true; (3) awarding Kelley back pay and benefits; and (4) considering Kelley's "popularity within the Department" as a basis for reinstatement.

Finally, Kelley filed a counter-appeal contending that the hearing examiner should have granted his motion to dismiss the City's letter suspension dated April 2, 2001 because the City did not strictly comply with the requirements of section¹ 143.056. See TEX. LOC. GOV'T CODE ANN. § 143.056 (Vernon 1999).

After a hearing, the court granted Kelley's no-evidence motion, denied Kelley's motion to dismiss, denied Kelley's counter-appeal, affirmed the hearing examiner's decision, and awarded Kelley $12,500 in attorney's fees.

Standards of Review

We apply the same standard in reviewing a no-evidence summary judgment as we would in reviewing a directed verdict. Rice v. Russell-Stanley, L.P., 131 S.W.3d 510, 513 (Tex.App.-Waco 2004, pet. denied). We review the summary-judgment evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id. A no-evidence summary judgment will be defeated if the non-movant produces some evidence on the elements challenged by the movant. Id.

The decision of an independent third-party hearing examiner ordinarily is "final and binding on all parties." TEX. LOC. GOV'T CODE ANN. § 143.057(c) (Vernon Supp.2006). However, a party may challenge the hearing examiner's decision in district court on the grounds that the hearing examiner "was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means." Id. § 143.057(j); see City of Laredo v. Leal, 161 S.W.3d 558, 562-63 (Tex.App.-San Antonio 2004, pet. denied). This has been construed as an "abuse-of-authority" standard. See Leal, 161 S.W.3d at 563; City of Garland v. Byrd, 97 S.W.3d 601, 607 (Tex.App.-Dallas 2002, 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." Leal, 161 S.W.3d at 563; Byrd, 97 S.W.3d at 607; see also City of Carrollton Civil Serv. Comm'n v. Peters, 843 S.W.2d 186, 188 (Tex.App.-Dallas 1992, writ denied) (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding)).

Authority to Reduce Period of Suspension

The City contends in its first issue that the hearing examiner exceeded his jurisdiction by reducing the length of Kelley's suspension after finding that Kelley violated the Code of Conduct provisions of the Waco Police Department General Orders (General Order 10.01) and section 53 of the Fire Fighters' and Police Officers' Civil Service Regulations. The City argues that section 143.014 controlled the hearing examiner's decision because Kelley was an assistant chief when he was suspended. See TEX. LOC. GOV'T CODE ANN. § 143.014 (Vernon 1999).

Kelley responds that the hearing examiner's decision is authorized by section 143.053, which applies generally to police officers and fire fighters with civil service protection. TEX. LOC. GOV'T CODE ANN. § 143.053 (Vernon Supp.2006). Therefore, we must construe these statutes to determine whether the hearing examiner exceeded his authority.

Our purpose in construing a statute is to determine the Legislature's intent. As a starting point, we construe statutes as written and, if possible, ascertain intent from the statutory language. We may also consider other factors, including the object the statute seeks to obtain, legislative history, and the consequences of a particular construction. Moreover, we must always consider a statute as a whole and attempt to harmonize its various provisions.

Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex.2002) (citations omitted); see also TEX. GOV'T CODE ANN. §§ 311.021, 311.023 (Vernon 2005). "Statutory construction is a question of law, and our review is accordingly de novo." State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006).

Section 143.014 applies only to persons "appointed to a position in the classification immediately below that of the head of the police [or fire] department." Id. § 143.014(d), (e).

If a person appointed under this section is charged with an offense in violation of civil service rules and indefinitely suspended by the department head, the person has the same rights and privileges of a hearing before the commission² in the same manner and under the same conditions as a classified employee. If the commission, a hearing examiner, or a court of competent jurisdiction finds the charges to be untrue or unfounded, the person shall immediately be restored to the same classification, or its equivalent, that the person held before appointment. The person has all the rights and privileges of the prior position according to seniority, and shall be repaid for any lost wages.

Id. § 143.014(h) (footnote added).

The City contends that, under the plain language of section 143.014(h), an assistant chief may be restored to a former position only if the hearing examiner "finds the charges to be untrue or unfounded." According to the City's argument, if the hearing examiner had found the charges to be untrue, then Kelley could have been restored to the position of commander, which he held before he was appointed assistant chief. Because the hearing examiner found the charges true however, the City insists that the hearing...