the City of Waco, Texas v. Larry Kelley ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00214-CV

The City of Waco, Texas,

                                                                      Appellant

 v.

Larry Kelley,

                                                                      Appellee

From the 74th District Court

McLennan County, Texas

Trial Court # 2002-1959-3

Dissenting Opinion

      The majority holds that the district court lacked jurisdiction, and that we thus lack jurisdiction.  I respectfully dissent.

      The City appeals under Local Government Code Section 143.057.  See Tex. Loc. Gov’t Code Ann. § 143.057 (Vernon 1999). In most municipalities with a population of less than 1,500,000, Section 143.057 governs appeals to hearing examiners by police officers who are suspended, demoted, or not promoted; and appeals from hearing examiners to district court.  See id. § 143.002 (Vernon 1999), § 143.057.  Such an “officer may elect to appeal to an independent third party hearing examiner instead of to the” Fire Fighters’ and Police Officers’ Civil Service Commission.  Id. § 143.057(a); see id. § 143.003(1) (Vernon Supp. 2004-2005).  “The hearing examiner’s decision is final and binding on all parties.”  Id. § 143.057(c).

      Section 143.057 provides that if the “police officer decides to appeal to an independent third party hearing examiner, the person automatically waives all rights to appeal to a district court except as provided in Subsection (j).”  Tex. Loc. Gov’t Code Ann. § 143.057(c). Subsection (j), in turn, provides:

A district court may hear an appeal of a hearing examiner’s award only on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means.

Id. (j).

      In the City’s petition in district court, it alleged that the hearing examiner exceeded his jurisdiction.  (See I C.R. at 5, 9-13.)

      At least one court has expressly held that a city may bring an appeal under Section 143.057(j).  See City of Garland v. Byrd, 97 S.W.3d 601, 608 n.1 (Tex. App.—Dallas 2002, pet. denied). There, the city argued that Section 143.057(j) unconstitutionally delegated power to the private hearing examiner, and denied the city the right to appeal.  Id. at 605, 607-608 & n.1.  The Dallas Court held:

The City suggests that because section 143.057(j) does not specify which party has a right to appeal the hearing examiner’s decision, the statute is ‘silent’ on the matter of the City’s right to appeal.  We do not equate the statute’s lack of specificity with silence. Section 143.057(j) clearly grants a right of appeal from a hearing examiner’s decision.  If the legislature wished to limit the right of appeal to only the aggrieved . . . police officer, it clearly could have done so as it did in section 143.015. The fact that the legislature did not similarly restrict section 143.057(j) can only mean that the right of appeal is available to both sides.

Id. at 608 n.1 (internal citations omitted).  Section 143.015 provides, “If a fire fighter or police officer is dissatisfied with any commission decision, the fire fighter or police officer may file a petition in district court asking that the decision be set aside.”  Tex. Loc. Gov’t Code Ann. § 143.015 (Vernon 1999).

      Several other cases assume without addressing the question that a city can appeal under Section 143.057(j).  See, e.g., City of San Antonio v. Longoria, No. 04-04-00063-CV, 2004 Tex. App. LEXIS 8426, at *2-*3, *4 (Tex. App.—San Antonio Sept. 22, 2004, no pet. h.) (mem. op.); Nuchia v. Tippy, 973 S.W.2d 782, 786 (Tex. App.—Tyler 1998, no pet.); Gardner v. City of Garland, No. 05-93-01535-CV, 1994 Tex. App. LEXIS 3957, at *4-*6 (Tex. App.—Dallas Aug. 31, 1994, no pet.) (not designated for publication).

      The sole case on which the majority relies is City of Houston v. Clark, 142 S.W.3d 350 (Tex. App.—Houston [14th Dist.] 2004, pet. filed).  That case interprets Local Government Code Section 143.1016(j), which is worded the same as Section 143.057(j), but governs municipalities with a population of 1,500,000 or more.  See Tex. Loc. Gov’t Code Ann. §§ 143.101, 143.1016(j) (Vernon 1999).  Clark holds, “we can find nothing in the statute to suggest that the municipality . . . has any right of appeal.”  Clark at 352. The

14th Court

cites several instances where Local Government Code Chapter 143 expressly gives the police officer the right of appeal, and concludes that the Legislature did not intend to do so in Section 143.1016(j). Id. at 353 & n.3.  Those instances are better understood as showing that the Legislature knew how to limit appeals to the police officer when it intended to do so, but did not intend to do so in Section 143.1016(j) or thus in Section 143.057(j).  See Byrd, 97 S.W.3d at 608 n.1.

      We should hold that we have jurisdiction, and address the merits of the case.  Because the majority does not, I respectfully dissent.

      Finally, I must also address the process under which the majority’s opinion and therefore my dissenting opinion are being issued.  The normal procedure for this Court is to issue opinions on Wednesday of each week. We did so this week on October 27, 2004.  Thus, under our normal procedure, no opinions would issue again until November 3, 2004, the day after the general election.  However, the majority opinion and therefore this dissenting opinion are being issued on Friday, October 29, 2004.  They are being treated as an exception to the regular procedures.  Though I have tried, I have been unable to obtain an explanation for the need or purpose of issuing opinions in this case at this time. Likewise, I was unable to obtain an explanation for a change in the designation of authorship of the majority opinion after the opinion was circulated.  I join neither irregularity.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed October 29, 2004

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