Proctor v. Andrews

• Decision Date: 03 July 1998
• Docket Number: No. 97-1039,97-1039
• Citation: 972 S.W.2d 729
• Parties: 41 Tex. Sup. Ct. J. 1172 Richard Dewayne PROCTOR, Hugh Glen Osborn, John Yeates, and Dan Morales, Attorney General of Texas, Petitioners, v. Mary ANDREWS, in her official capacity as Civil Service Director of The City of Lubbock, Texas and as Managing Director of Human Resources for The City of Lubbock, Texas, Ken Walker, in his official capacity, et al., Respondents.
• Court: Texas Supreme Court

Page 729

972 S.W.2d 729

41 Tex. Sup. Ct. J. 1172

Richard Dewayne PROCTOR, Hugh Glen Osborn, John Yeates, and Dan Morales, Attorney General of Texas, Petitioners, v. Mary ANDREWS, in her official capacity as Civil Service

Director of The City of Lubbock, Texas and as Managing

Director of Human Resources for The City of Lubbock, Texas,

Ken Walker, in his official capacity, et al., Respondents.

No. 97-1039.

Supreme Court of Texas.

Argued April 1, 1998.

Decided July 3, 1998.

Rehearing Overruled July 3, 1998.

Nancy A. Trease, Austin, Denette Vaughn, Lubbock, B. Craig Deats, Austin, for Petitioners.

Jeffrey C. Hartsell, Cecil Kuhne, Lubbock, for Respondents.

PHILLIPS, Chief Justice, delivered the opinion for a unanimous Court.

Respondents' motion for rehearing is overruled. Our opinion of June 5, 1998, is withdrawn and the following substituted in its place.

We must determine whether section 143.057(d) of the Civil Service Act, TEX. LOC. GOV'T CODE §§ 143.001 -.134, ¹ violates the Texas Constitution either by impermissibly delegating legislative authority to two arbitration services or by impermissibly infringing on a home rule city's governmental authority to direct, control, and discipline its police officers. We hold that section 143.057(d) is not unconstitutional on either ground. Accordingly, we reverse the judgment of the court of appeals and reinstate the judgment earlier rendered by the trial court compelling the City of Lubbock to comply with section 143.057(d).

I

Under the Civil Service Act, a police officer or fire fighter suspended, passed over for a promotion for disciplinary reasons, or recommended for demotion has the choice of appealing the action to the local civil service commission, section 143.010, or to an independent third-party hearing examiner, section 143.057. Section 143.057(d) provides that if the officer and department head cannot agree on the selection of an impartial hearing examiner within ten days after the appeal is filed, the City's Civil Service Director must request a list of seven "qualified neutral arbitrators" from either the American Arbitration Association ("AAA") or the Federal Mediation and Conciliation Service ("FMCS"). § 143.057(d). If the officer and department head cannot agree on one of the listed arbitrators, the two parties select the hearing examiner by alternately striking names from the list. Id. The hearing examiner selected has the same powers and duties as the Civil Service Commission. § 143.057(f). The statute also provides that the hearing examiner's decision is final and binding. § 143.057(c). An officer choosing this option waives the right to appeal the hearing examiner's decision to a district court unless the hearing examiner was without jurisdiction, exceeded his or her jurisdiction, or the award was procured by fraud, collusion, or other unlawful means. §§ 143.057(c), (j).

This appeal involves three cases consolidated for trial. Officers Richard Dewayne Proctor, Hugh Glen Osborn, and John Yeates were suspended from the City of Lubbock Police Force for separate alleged violations of the Local Civil Service Rules. The three officers elected to have their appeals heard by a hearing examiner under section 143.057. In officers Proctor's and Osborn's cases, the City requested the list of names from the AAA, but refused to comply with the striking provision. In Officer Yeates's case, the City refused even to request a list of qualified neutral arbitrators. Proctor filed suit seeking a declaratory judgment that the statute is constitutional and mandamus relief to compel the defendants to proceed with a hearing before a third-party hearing examiner. The City of Lubbock, Mary Andrews in her official capacity as Lubbock's Civil Service Director, and Ken Walker in his official capacity as Lubbock's Chief of Police ("the City") counterclaimed for a declaratory judgment that section 143.057(d) is unconstitutional. The City also subsequently filed suit against Osborn and Yeates seeking declaratory judgments that the hearing examiner provision of section 143.057 is unconstitutional. The officers counterclaimed, seeking their own declarations that the statute is constitutional and mandamus relief requiring the City to comply with section 143.057(d). The trial court consolidated all three cases. The Attorney General intervened to defend the statute's constitutionality.

The City and the police officers all moved for summary judgment. The trial court denied the City's motion and granted the officers' motions, declaring section 143.057 constitutional. The City appealed. The court of appeals reversed the trial court's judgment and granted the City summary judgment, holding that section 143.057(d) impermissibly delegates legislative authority in violation of Article II, Section 1 of the Texas Constitution. Andrews v. Proctor, 950 S.W.2d 750 (Tex.App.--Amarillo 1997). We granted the officers' and the Attorney General's separate petitions for review.

As a preliminary matter, we note that all parties erroneously rely on Article II Section I of the Texas Constitution as the source for the constitutional prohibition of delegations of legislative authority to private entities. This section provides for the separation of powers of the three branches of the state government and prohibits any of the three departments from exercising any power properly attached to either of the other branches. Article II, Section 1 is a direct prohibition of the blending of the legislative, executive, and judicial departments. Article III, Section 1 of the Texas Constitution vests in the Legislature the power to make laws. While noting that "the principle of non-delegation has certain qualifications," the interpretive commentary to this article states that "[a] settled maxim of constitutional law is that the power conferred upon the legislature to make the laws cannot be delegated by that department to any other body or authority." TEX. CONST. art. III, § 1 interp. commentary; see also, e.g., Brown v. Humble Oil & Ref. Co., 126 Tex. 296, 83 S.W.2d 935, 941 (1935). As such, Article II and Article III both apply when the constitutionality of the Legislature's delegation of power to another branch of state government, such as an administrative agency, is challenged. Article II is not relevant, however, to a legislative delegation of authority to an entity that is not a part of state government. Therefore, the proper constitutional source for a prohibition of delegations to private entities or another government's entities is Article III, Section 1 of the Constitution. This Court's recent opinion in Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen, 952 S.W.2d 454, 465-475 (Tex.1997), analyzes the constitutionality of a legislative delegation of power to a private entity under Article II, Section 1. However, in Boll Weevil, whether the Foundation was a state or a private entity was at issue. Id. at 470-71. Because the delegates in the instant case are not affiliated with any department of the state government, the constitutional provision that would be violated by an impermissible delegation is Article III, Section 1, not Article II, Section 1. We therefore analyze the delegation under Article III.

The City asserts that section 143.057(d) is an overly broad delegation of legislative authority to a private entity in violation of the Texas Constitution. The City contends that the terms "qualified" and "neutral" are unconstitutionally vague. Thus, by enacting section 143.057(d), the Legislature conferred on AAA and FMCS the authority to determine what specific requirements make an arbitrator neutral and qualified, and therefore eligible to serve as a hearing examiner under the statute.

The City also contends that the provision unconstitutionally infringes on its powers as a home rule city. We consider that argument first.

II

The City argues that section 143.057(d) violates the constitutional authority granted to home rule cities under Article XI, Section 5 of the Texas Constitution by infringing on the City's governmental authority to direct, control, and discipline its police officers and firefighters. We reject this argument.

"A home rule city derives its power not from the Legislature but from Article XI, Section 5 of the Texas Constitution.... [I]t is necessary to look to the acts of the legislature not for grants of power to such cities but only for limitations on their powers." Lower Colo. Riv. Auth. v. City of San Marcos, 523 S.W.2d 641, 643 (Tex.1975) (citation omitted). While a home rule city thus has all the powers of the state not inconsistent with the Constitution, the general laws, or the city's charter, TEX. CONST . art. XI, § 5, these broad powers may be limited by statute when the Legislature's intention to do so appears "with unmistakable clarity." See, e.g., Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 490-491 (Tex.1993); City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex.1964). Assuming that delegating authority to a third party to review the City's discipline of its police officers is an infringement of the City's police power, such infringement is permissible if the Legislature has, by general law, clearly intended to do so. See, e.g., Dallas Merchant's and Concessionaire's Ass'n, 852 S.W.2d at 491-492. It is unmistakably clear from a review of section 143.057 that the Legislature intended to prevent cities under the Civil Service Act from requiring disciplinary action appeals to be heard only by their civil service commissions. See § 143.057. "Municipal corporations [including home rule cities] are created for the exercise of certain functions of government.... [I]n so far as their character is governmental, they are agencies of the state, and subject to state control." Yett v. Cook, 115 Tex. 205, 281 S.W. 837, 842 (1926). We therefore hold that section 143.057 of the Civil Service Act does not unconstitutionally...