City of Waco, Texas v. Louis E. Bittle ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00098-CV

City of Waco, Texas,

                                                                      Appellant

 v.

Louis E. Bittle,

                                                                      Appellee

From the 74th District Court

McLennan County, Texas

Trial Court # 2002-1910-3

O p i n i o n

This appeal arises from an alleged violation of Texas Local Government Code Chapter 143, Fire Fighters’ and Police Officers’ Civil Service Act.  Due to failure to exhaust administrative remedies, we will vacate the judgment and dismiss the case for lack of jurisdiction.

On September 5, 2001, Louis Bittle, a Waco fire fighter, was indefinitely suspended for failing a breath-alcohol test given with a promotional exam.  Bittle timely appealed the indefinite suspension to a third party hearing examiner.[1]  A hearing was held on Nov. 28, 2001, and a decision was issued on Jan. 28, 2002, 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 on February 15, 2002. Subsequently he inquired to the City whether he would receive back pay for the period between September 5, 2001[2] and February 14, 2002.  Because the hearing examiner’s decision did not mention back pay, the City requested reconsideration[3]/clarification of whether Bittle was entitled to back pay. The City argued Bittle was not entitled to back pay because the time he was off without pay is the appropriate discipline for failing the breath-alcohol test and for failing to mitigate his damages,[4] and that there is no evidence in the record upon which to base such an award.  On March 7, 2002, the hearing examiner issued a decision denying the reconsideration and provided the clarification regarding the back pay as follows:

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.[5]

On April 24, 2002, Bittle sent a written demand to the City to comply with Tex. Loc. Gov’t Code § 143.053(f), which states:

(f) . . . 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 § 143.053(f) (Vernon Supp. 2004-2005) (emphasis added).

Up to the suspension date, Bittle had accrued the following hours of leave: 1268.5 sick, 216 vacation, and 48 holiday.  On September 17, 2001, the City treated Bittle’s 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.

When Bittle did not receive the back pay he demanded, he filed suit for: a declaratory judgment, a writ of mandamus, and attorney’s fees.  He alleged:

(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 pay him “full compensation for the actual time lost as a result of the suspension,” pursuant to Texas Local Government Code § 143.053(f).

The City responded that it offered to restore Bittle’s sick, vacation, and holiday leave accruals to his pre-suspension amounts and then pay the back pay by paying the difference between the total back pay and the “cash out” Bittle already received and interim wages.  Bittle refused the City’s offer to offset and wanted to accept less restoration of leave, retain the money from the “cash out”, and be paid his back pay.[6]  The City filed a plea to the jurisdiction and a counterclaim seeking declaratory judgment regarding the manner it could pay the back pay (i.e., whether section 143.053(f) allowed the offset it proposed) and sought its own attorney’s fees.

Bittle filed a motion for summary judgment, which was granted on Feb. 17, 2003.  The Final Summary Judgment 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 leave[7], 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.[8]

. . .

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

The City now appeals the trial court’s summary judgment in two issues: (1) error in granting summary judgment when there was a genuine issue of material fact as to whether the City “failed and refused” to comply with the hearing examiner’s decision or Texas Local Government Code section 143.053(f) when the City sought a declaratory judgment; and (2) error in granting summary judgment when there was a genuine issue of material fact as to whether Bittle’s attorney’s fees were reasonable and necessary.

JURISDICTION

Among its other arguments, the City says Bittle was not entitled to mandamus relief because he did not exhaust his administrative remedies under Chapter 143.  The City asserts that because it is the duty of the commission to determine if Chapter 143 is being obeyed, Bittle should have taken his post-examiner dispute to the commission.

Bittle says he is not appealing the hearing examiner’s decision—he is trying to enforce it.  He states that mandamus is an appropriate remedy to enforce a final hearing examiner’s decision when the City refuses to comply with the decision and the Act.

If an administrative agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking review of the agency’s action.  Cash Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000). Until the party has exhausted all administrative remedies, a trial court lacks subject matter jurisdiction and must dismiss any claim within the agency’s exclusive jurisdiction.  Subaru of Am. v. David McDavid Nissan, 84 S.W.3d 212, 221 (Tex. 2002) (citing Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex.1992); Tex. Bd. of Exam'rs in Optometry v. Carp, 162 Tex. 1, 343 S.W.2d 242, 246 (Tex.1961)).

We agree with the City that the dispute is grounded in whether the City violated Chapter 143 of the Texas Local Government Code.  It was clear that Bittle’s contention was that the City was violating section 143.053(f) by failing to pay the back pay using his method of calculation (i.e., no offset).  Thus, if the commission had exclusive jurisdiction over disputes arising out of Chapter 143, the trial court lacked subject matter jurisdiction over the underlying lawsuit.  Our only inquiry then is whether the commission had exclusive jurisdiction over the dispute.[9]

An agency will have exclusive jurisdiction only when a pervasive regulatory scheme indicates that the Legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed.  See David McDavid Nissan, 84 S.W.3d at 221. Whether an agency has exclusive jurisdiction is a question of law.  Id. at 222. 

The purpose of the Fire Fighters’ and Police Officers’ Civil Service Act (“Act”) 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.”  Tex. Loc. Gov’t Code § 143.001(a) (Vernon 1999). “The members of the Fire Fighters’ and Police Officers’ Civil Service Commission shall administer this chapter in accordance with this purpose.”  Id. at § 143.001(b).  “The commission or a commission member designated by the commission may investigate and report on all matters relating to the enforcement and effect of this chapter and any rules adopted under this chapter and shall determine if the chapter and rules are being obeyed.”  Id. at § 143.009(a) (emphasis added).  The legislature provided the commission with tools to ensure compliance with Chapter 143. Id. at § 143.009(b) (administer oaths, issue subpoenas, and cause depositions of witnesses).

Based on Texas Local Government Code sections 143.001 and 143.009, we believe the commission’s role was designed to create a fair, consistent, and orderly process to ensure Chapter 143 is being obeyed.  See City of Houston v. Jackson, 42 S.W.3d 316, 322 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d w.o.j.).  The commission has specifically been given the authority to ensure the enforcement of Chapter 143 and to determine if Chapter 143 and the rules promulgated pursuant to Chapter 143 are being obeyed.  Tex. Loc. Gov’t Code § 143.009 (Vernon 1999); see also City of Garland v. Byrd, 97 S.W.3d 601, 606 (Tex. App.—Dallas 2002, pet. denied) (citing Tex. Local Gov’t Code § 143.009).

We acknowledge that the Act does not explicitly state the commission has “exclusive jurisdiction” over a Chapter 143 dispute nor does it provide an explicit method to enforce a decision of a hearing examiner.  However, we believe the legislature intended that judicial intervention be the last resort in disputes between civil servants and their employers arising under Chapter 143.  We further note that a firefighter who is dissatisfied with a decision of the commission, as opposed to a hearing examiner, has an unfettered right to appeal to a district court.  Tex. Loc. Gov’t Code § 143.015 (Vernon 1999).

We conclude that the commission has exclusive jurisdiction[10] over Chapter 143 disputes.  The Act is a pervasive regulatory scheme that indicates the Legislature intended for the appeal process to the commission to be the exclusive means of remedying a dispute that alleges a violation of the Act.[11]  See David McDavid Nissan, 84 S.W.3d at 221. Bittle failed to exhaust his administrative remedies by not taking this back pay/leave dispute to the commission for resolution.  Because he failed to exhaust his administrative remedies, the district court lacked subject matter jurisdiction.  See David McDavid Nissan, 84 S.W.3d at 221.

CONCLUSION

Because we find the trial court lacked subject matter jurisdiction, we vacate the judgment and dismiss this case.  Tex. R. App. P. 42.3(e).

FELIPE REYNA

                                                                   Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

          (Chief Justice Gray dissenting)

Dismissed for lack of jurisdiction

Opinion delivered and filed November 10, 2004

[CV06]

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    [1]       A fire fighter can appeal an indefinite suspension to an independent third party hearing examiner instead of to the Fire Fighters’ and Police Officers’ Civil Service Commission (commission).  Tex. Loc. Gov’t Code § 143.057(a) (Vernon 1999). The hearing examiner's decision is final and binding on all parties, and the appealing fire fighter automatically waives all rights to appeal to a district court except as provided by subsection (j).  Id. at 143.057(c) Subsection (j) allows an appeal to a district court only on the grounds that the examiner was without jurisdiction or exceeded his jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. Id. at § 143.057(j).

    [2]       Bittle was on administrative leave with pay from August 31, 2001 to September 4, 2001.

    [3]       The City argued for reconsideration for reasons unrelated to this appeal.

    [4]       The City argued that Bittle could have sought reconsideration with the City Manager to take advantage of the savings clause.

    [5]       This reconsideration/clarification decision did not state that “[t]he arbitrator maintains jurisdiction to assist the parties” as the original decision did.  The statute is silent about the duration of the examiner’s jurisdiction, and we express no opinion about it.

    [6]       Bittle argues that “his rights and benefits lost as a result of the suspension” only include the 188.5 hours of sick leave that were not “cashed out”, and the benefits he would have accrued during his time of suspension (75 hours sick leave, 75 hours vacation leave, and 48 hours holiday).

    [7]       188.5 sick leave hours not “cashed out” and 75 sick leave hours accrued during time of suspension.

    [8]       The Court also awarded Bittle reasonable and necessary attorney’s fees in the amount of $14,600.00 for the prosecution of the suit in the trial court and an additional $10,000.00 in attorney’s fees in the event of an appeal.

    [9]       Issues of subject matter jurisdiction cannot be waived by the parties and may be raised for the first time on appeal.  Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).

    [10]      Subject to the employee’s right to choose a hearing examiner instead of the commission.

    [11]      We note Thomas v. Long, 97 S.W.3d 300, 303 (Tex. App.—Houston [14th Dist.] 2003, pet. granted), where the court found the Sheriff’s Department Civil Service Commission did not have exclusive jurisdiction.