Kirkwood v. City of Corsicana

• Citation: 871 S.W.2d 544
• Decision Date: 09 March 1994
• Docket Number: No. 10-93-151-CV,10-93-151-CV
• Parties: Kenneth KIRKWOOD, Appellant, v. CITY OF CORSICANA, et al., Appellees.
• Court: Texas Court of Appeals

Page 544

871 S.W.2d 544

Kenneth KIRKWOOD, Appellant, v. CITY OF CORSICANA, et al., Appellees.

No. 10-93-151-CV.

Court of Appeals of Texas,

Waco.

March 9, 1994.

R. John Cullar, Mills, Millar, Matkin & Cullar, Waco, for appellant.

Bettye S. Springer, Sheila Gladstone, and Don R. Willett, Haynes and Boone, L.L.P., Austin, for appellees.

Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

VANCE, Justice.

This appeal arose under chapter 143 of the Texas Local Government Code, entitled "Municipal Civil Service." See TEX.LOC.GOV'T CODE ANN. §§ 143.001-143.089 (Vernon 1988 & Supp.1994). It was brought by a police officer who was (1) indefinitely suspended by his chief; (2) temporarily suspended and placed on probation by the city's civil service commission after he appealed to that body; (3) fired by the chief because he appealed to the district court; (4) permanently dismissed by the commission after the proceeding was remanded to it by the district court; and (5) denied relief by the district court after hearings on the two civil service commission orders. Because we decide that the district court improperly remanded the proceeding, that the commission had no jurisdiction to issue a second decision, and that the commission exceeded its authority in placing the officer on probation, we will remand with instructions that he be reinstated and awarded back pay and attorney's fees.

PUBLIC POLICY

Chapter 143 provides that its purpose 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." Id. § 143.001. Decisions have stated that one of the purposes of the predecessor act was to provide for and protect the rights of persons serving as officers and employees of municipal fire and police departments. E.g., Bichsel v. Carver, 159 Tex. 393, 321 S.W.2d 284, 286 (1959); City of Carrollton v. Popescu, 806 S.W.2d 268, 272 (Tex.App.--Dallas 1991, no writ); Crawford v. City of Houston, 487 S.W.2d 179, 181 (Tex.App.--Houston [14th Dist.] 1972, writ ref'd n.r.e.).

HISTORY OF THE PROCEEDING

Kenneth Kirkwood, a civil service employee, held the rank of Captain in the City of Corsicana Police Department. On November 24, 1992, the Chief of Police sent Kirkwood a letter informing him that he had been indefinitely suspended for alleged violations of the department's rules of conduct. ¹ See TEX.LOC.GOV'T CODE ANN. § 143.052. On December 1, Kirkwood appealed to the Civil Service Commission, the body authorized by chapter 143 to hear appeals of disciplinary suspensions. See id. §§ 143.010, 143.053. The commission conducted a hearing and issued a written decision on December 31, the thirtieth day after the appeal was filed, which temporarily suspended Kirkwood from the police department from November 25 through December 31. See id. § 143.053(e)(2). The order continued:

As a condition of this temporary suspension, it is ORDERED that Kenneth Kirkwood is placed on probation for a period of one year with the following conditions:

1. That he accept a demotion from the Chief of Police back to the position of patrol officer.

2. That during the year, he not be involved in exhibitions of poor judgment in any similar situations.

3. That any appeal of this decision or his demotion shall result in the probation being revoked and the suspension automatically becomes permanent dismissal.

After receiving a copy of the order on January 4, 1993, Kirkwood filed suit in the district court on January 13. See id. § 143.015. On January 14, the Chief of Police sent a letter informing Kirkwood that he was "no longer an employee of the City of Corsicana."

After a hearing held on January 29, the court notified the parties that the commission's order was not a final, appealable order and remanded the proceeding back to the commission "for entry of a final order." The commission conducted a second hearing and, on February 10, ordered that Kirkwood be "permanently dismissed" from the Corsicana Police Department and revoked the probationary conditions set out above.

Kirkwood amended his petition in the district court and filed a second suit attacking the February 10 order of the commission. At his request the court consolidated the two suits. On April 30, the court signed a judgment that affirmed the December 31 commission order and provided "or, in the alternative, if the first Order was not final, then the Civil Service Commission Order of February 10, 1993, is affirmed." After the court filed findings of facts and conclusions of law, Kirkwood perfected this appeal.

THE COURT'S FINDINGS

The facts underlying the disciplinary proceeding are not disputed. The parties stipulated to the facts concerning Kirkwood's employment status and the suspension proceedings, and the court adopted the stipulation as its findings of fact. The court adopted four conclusions of law: (1) that the commission's December 31 order was valid because (a) it determined that Kirkwood had violated departmental rules, (b) it temporarily suspended him as authorized by law, and (c) the commission had the authority to condition its grant of a temporary suspension on Kirkwood's acceptance of a demotion; (2) that because Kirkwood did not accept the demotion, the commission was authorized in imposing the indefinite suspension; (3) alternatively, if the December 31 order is not valid, then the February 10 order is valid because (a) the court had authority to remand the proceedings to the commission for modification and (b) the statute does not prohibit a remand; and (4) the commission acted within its authority when it modified its decision to an indefinite suspension. Kirkwood attacks these conclusions. We review conclusions of law de novo as legal questions. See Nelkin v. Panzer, 833 S.W.2d 267, 268 (Tex.App.--Houston [1st Dist.] 1992, writ dism'd w.o.j.).

THE REMAND AND THE SECOND COMMISSION ORDER

In point six, Kirkwood contends that the December 31 order of the commission was an appealable order and that the court should not have remanded the proceeding. His seventh and eighth points assert that the commission's authority expired 30 days after he filed his appeal with the commission and, thus, the second commission order was invalid. In point five, he contends that the court erred in finding that the second order was valid.

In a per curiam opinion in Horrocks v. City of Grand Prairie, the Supreme Court reiterated its holding that "any decision of a Civil Service Commission concerning a suspension is appealable to the district court." See Horrocks v. City of Grand Prairie, 704 S.W.2d 17, 17 (Tex.1986) (citing Patton v. City of Grand Prairie, 686 S.W.2d 108 (Tex.1985)). Thus, the court was not justified in finding that the December 31 order was not final or in remanding the proceeding to the commission for another decision. ²

The commission's second hearing was held and the order was issued more than thirty days after the date that the commission received Kirkwood's notice of appeal, after its jurisdiction had expired. See TEX.LOC.GOV'T CODE ANN. § 143.053(b); City of Texarkana v. Fincher, 657 S.W.2d 842, 843 (Tex.App.--Texarkana 1983, writ ref'd n.r.e.) (citing Todd v. City of Houston, 508 S.W.2d 140, 141 (Tex.Civ.App.--Houston [1st Dist.] 1974, writ ref'd n.r.e.)). Both the predecessor statute--article 1269m, section 16, under which Fincher and Todd were decided--and section 143.053 of the Local Government Code require that the commission "hold a hearing and render a decision in writing within [thirty] 30 days after the date it receives [said] notice of appeal." ³ See id.

The city argues that disallowing remand and further action by the commission "belies common sense." We believe that the legislature has adopted a workable procedure that requires the commission to render a written decision within the parameters of chapter 143 within thirty days, allows the commission's decision to be appealed to the district court, then allows the district court to review the commission's decision. See §§ 143.015, 143.053(b). This interpretation of the procedure carries out the public policy expressed in chapter 143; it promotes a just and reasonable result and is feasible to carry out. See TEX.GOV'T CODE ANN. § 311.021(3), (4), (5) (Vernon 1988).

Because the court erroneously concluded that it had authority to remand the proceeding to the commission and that the commission acted within its authority in holding an additional hearing and issuing the second order, we sustain points five, six, seven, and eight.

THE INITIAL COMMISSION ORDER

We will review the commission's December 31, 1992, order under Kirkwood's points one through four, which essentially assert that the court erred in concluding that the commission had the authority to place him on probation and impose conditions incident to its decision to temporarily suspend him. His brief states:

It is Kirkwood's position herein that, because probation periods and demotions are not specifically enumerated as acts within the authority of the Civil Service Commission in § 143.053, but are specifically dealt with in other sections of Chapter 143 (namely §§ 143.027 and 143.054), the Civil Service Commission had no authority to impose, "as a condition of (Kirkwood's) temporary suspension," a probation period of one year, which included a demotion.

The parties have directed us to no authority that conclusively decides this question one way or the other.

Section 143.053(e) authorizes a commission hearing a police officer's appeal from a suspension to do one of three things: (1) permanently dismiss the officer from the department; (2) temporarily suspend the officer from the department; or (3) restore the officer to his or her former position or status in the department's classified service. TEX.LOC.GOV'T CODE ANN. § 143.053(e). A commission may also reduce a period of suspension. Id. § 143.053(f). The legislature has...