Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 2, 2008
The Honorable Joe Driver Opinion No. GA-0612
Chair, Committee on Law Enforcement
Texas House of Representatives Re: Whether a municipality must pay a fire
Post Office Box 2910 fighter or police officer for an appearance as a
Austin, Texas 78768-2910 witness in a civil service hearing before a hearing
examiner when the fire fighter or police officer is
subpoenaed in his or her capacity as a fire fighter
or police officer and testifies during time off
(RQ-0633-GA)
Dear Representative Driver:
You ask whether "a municipality must pay a fire fighter or police officer for an appearance
as a witness in a civil service hearing before a hearing examiner when the fire fighter or police
officer is subpoenaed in his or her capacity as a fire fighter or police officer and testifies during time
off.,,1
In your request letter, you direct us to a specific provision in chapter 142 of the Local
Government Code, which provides for certain benefits to municipal officers and employees. See
TEX. Loc. Gov'T CODE ANN. ch. 142 (Vernon 1999 & Supp. 2007). Under section 142.009, a
municipality is required to
pay a fire fighter or police officer for an appearance as a witness in a
criminal suit or civil suit in which the municipality or other political
subdivision or government agency is a party in interest if the
appearance:
(1) is required;
(2) is made on time off; and
lSee Letter from Honorable Joe Driver, Chair, Committee on Law Enforcement, Texas House of
Representatives, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Oct. 2, 2007) (on file with the Opinion
Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Joe Driver - Page 2 (GA-0612)
(3) is made by the fire fighter or police officer in the capacity
of a fire fighter or police officer.
Id. § 142.009(a) (Vernon 1999) (emphasis added).
You also direct us to chapter 143 of the Local Government Code, which provides civil
service benefits and protection to fire fighters and police officers in municipalities that have adopted
the chapter. See Request Letter, supra note 1, at 2; see also TEX. Lac. GOV'T CODE ANN. ch. 143
(Vernon 1999 & Supp. 2007). Section 143.057 gives fire fighters and police officers an opportunity
to appeal certain adverse discipline and promotion decisions to an "independent third party hearing
examiner." TEX. Lac. GOV'T CODE ANN. § 143.057(a) (Vernon Supp. 2007).
Your question is whether the payment under section 142.009(a) is required when the fire
fighter's or police officer's appearance as a witness is before the independent third party hearing
examiner under section 143.057. 2 Aside from reference to these two chapters of the Local
Government Code, you provide no facts or context for your query. See Request Letter, supra note
1, at 1-2. Thus, without deciding that the fire fighter's or police officer's witness appearance before
the hearing officer meets the other requirements of section 142.009, we will focus, as you do in your
letter, on the dispositive issue regarding whether the hearing before the independent third party
hearing examiner is a civil or criminal "suit." See Request Letter, supra note 1, at 2.
The payment in section 142.009(a) is required only when a fire fighter or police officer
appears as a witness in a criminal suit or civil suit. See ide § 142.009(a) (Vernon 1999) (requiring
a municipality to "pay a fire fighter or police officer for an appearance as a witness in a criminal suit
or civil suit") (emphasis added). Chapter 142 does not define the term "suit." See TEX. Lac. GOV'T
CODEANN. § 142.010 (Vernon Supp. 2007) (definitions); see also ide § 143.003 (defining terms for
chapter 143). And we do not find an appropriate definition elsewhere in the Texas statutes. See
TEX. F AM. CODE ANN. § 101.031 (Vernon 2002) (defining "suit" to mean "suit affecting the parent-
child relationship"). The term is, however, defined by Texas courts. A "suit" is "any proceeding in
a court of justice by which an individual pursues that remedy which the law affords him." Tex.
Employers'Ins. Ass'n V. Evans, 298 S.W. 516,518 (Tex. 1927); accord BP Am. Prod. Co., V.
Burton, 127 S.Ct. 638,643 (2006) (defining "suit" as "any proceeding ... in a court of justice");
Hatten V. City ofHouston, 373 S.W.2d 525, 531 (Tex. Civ. App.-Houston 1963, writ refd n.r.e.)
(quoting Nat 'I Life CO. V. Rice, 167 S.W.2d 1021 (Tex. 1943)). The courts describe the term "suit"
as a comprehensive term involving any proceeding. See Tex. Employers' Ins. Ass 'n, 298 S.W. at 518
2Your request focused on the one mandatory provision. See Request Letter, supra note 1, at 1-2 (asking
whether a municipality must pay and providing briefing on only section 142.009, Local Government Code). See id
While there are authorizing statutes, and possible authorizing ordinances or charter provisions, that may in certain
circumstances permit a municipality to pay a municipal employee for an appearance before a hearing examiner, without
facts and context, we cannot opine on the applicability of such authority to any given situation. For instance, a
municipality with a population of 1.5 million or more may pay a "municipal employee who is subpoenaed to appear in
any appeal of a disciplinary decision [the] applicable pay for the time the employee is required to be present at the
hearing." TEX. Lac. Gov'r CODE ANN. § 143.1015(i) (Vernon 1999). Whether section 143.1015(i) applies would, of
course, depend on the population of the municipality.
The Honorable Joe Driver - Page 3 (GA-0612)
("The word 'suit' is defined ... to be a comprehensive term."). Despite this comprehensive
definition, a proceeding nevertheless must be one in a court ofjustice. Tex. Employers' Ins. Ass 'n,
298 S.W. at 518; accord BP Am. Prod. Co., 127 S. Ct. at 643 (2006) (defining "suit" as "any
proceeding ... in a court of justice"); Hatten, 373 S.W.2d at 531. This definition of "suit" also
comports with other provisions in section 142.009 that contemplate a court. See TEX. Loc. GOV'T
CODE ANN. § 142.009(c) (Vernon 1999) (providing that in civil suits, payment may be taxed as
"court costs").
You proffer a definition of "suit" from the Fifth Circuit Court of Appeals. See Request
Letter, supra note 1, at 2; see In re Murphy, 271 F.3d 629, 632-33 (5th Cir. 2001). In the Fifth
Circuit's In re Murphy opinion, the court discusses what constitutes a "suit" and lists six \elements.
See In re Murphy, 271 F.3d at 632-33. In that opinion, the court states that
a suit consists of: (1) an adversarial proceeding, (2) which arises as
a result of a deprivation or injury, (3) which involves at least two
parties, (4) which compels the attendance of the parties, (5) which
asserts and prosecutes a claim against one of the· parties, and (6)
which demands the restoration of something from the defending
party.
Id. at 633 (citing Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821). In Murphy, the Fifth Circuit
was asked to determine whether a state was entitled to Eleventh Amendment immunity from an
adversary "proceeding to determine the dischargability of a debt" under the Bankruptcy Code.· Id
at 631. The Eleventh Amendment protects states from most suits in law or equity. See U.S. CONST.
amend. XI (stating that "[t]he Judicial power of the United States shall not be construed to extend
to any suit in law or equity"). In Murphy, the proceeding regarding the dischargeability of debt was
before a bankruptcy court. See In re Murphy, 271 F.3d at 631 (noting that Murphy filed for chapter
7 bankruptcy and received a discharge ofall his dischargeable debts and that the district court upheld
the decision of the bankruptcy court). The Court of Appeals determined that the adversary
proceeding before the bankruptcy court did constitute a "suit" for purposes ofapplying the Eleventh
Amendment. See ide at 632. While the Court of Appeals did find this adversary "proceeding" to be
a suit, it was nonetheless a "suit" conducted before a court. The Murphy facts did not involve the
question that we have before us involving an administrative body that is not a court. And thus its
definition of "suit" does not inform our analysis.
Generally, a proceeding before an administrative body is not a proceeding in court.
Administrative bodies are not courts. See State v. Flag-Redfern Oil Co., 852 S.W.2d 480, 485-86
n.7 (Tex. 1993); see also Barshop v. Medina County Underground Water Conservation Dist., 925
S.W.2d 618, 635 (Tex. 1996). An administrative agency operating under the Administrative
Procedure Act and conducting a contested case proceeding exercises a power that is judicial in
nature. See Beyer v. Employees' Ret. Sys., 808 S.W.2d 622,627 (Tex. App.-Austin 1991, writ
denied); TEX. GOV'TCODEANN. ch. 2001 (Vernon 2000 & Supp. 2007) (Administrative Procedure
Act). Such an agency often decides "specific controversies between [parties] arising out of the
agenc[y's] regulation." Blount v. Metro. Life Ins. Co., 677 S.W.2d 565,570 (Tex. App.-Austin
The Honorable Joe Driver - Page 4 (GA-0612)
1984), rev'd on other grounds, 709 S.W.2d 646, 647 (Tex. 1986). And adjudicating agencies
generally employ methods and procedures that are similar to those used by courts to adjudicate cases.
See Smith v. Houston Chern. Servs., Inc., 872 S.W.2d 252,274 (Tex. App.-Austin 1994, writ
denied); see also TEX. GOV'T CODE ANN. §§ 2001.051-.052 (Vernon 2000) (providing for notice
and opportunity for hearing); 2001.053 (providing for right to counsel); 2001.059-.060 (providing
for transcript and record); 2001.081-.093 (providing for rules ofevidence, witnesses and discovery
in contested cases); 2001.094-.103 (providing for depositions). Yet, these similarities do not make
an administrative agency a court. Houston Chern. Servs. Inc., 872 S.W.2d at 274. An administrative
agency's adjudicative power is an exercise of executive branch power. See Beyer, 808 S.W.2d at
627; accord Barshop, 925 S.W.2d at 635; Pretzer v. Motor Vehicle Bd., 125 S.W.3d 23, 40 (Tex.
App.-Austin 2003), aff'd in part, rev 'd in part, 138 S.W.3d 908 (Tex. 2004). It is not "an exercise
of the judicial power assigned to the 'courts' of the State" by the Texas Constitution. Beyer, 808
S.W.2d at 627. Instead, as Texas courts consistently recognize, agency adjudications are "simply
executive measures taken in the administration of statutory provisions." Flag-Redfern Oil Co., 852
S.W.2d at 485-86 n.7; Barshop, 925 S.W.2d at 635 (same); Pretzer, 125 S.W.3d at 40 (same), aff'd
in part, rev'd in part, 138 S.W.3d 908 (Tex. 2004); Beyer, 808 S.W.2d at 627 (same).
Much like an executive-branch administrative agency, a civil service commission has power
that is judicial in nature. See TEX. Loc. GOV'T CODE ANN. § 143.010(d) (Vernon 1999) ("The
commission may issue subpoenas and subpoenas duces tecum for the attendance of witnesses and
for the production ofdocumentary material."), 143.01 0 (f) ("Witnesses may be placed under the rule
at the commission hearing."), 143.010(g) (limiting commission to consideration of only "evidence
submitted at the hearing"). But a civil service commission is still an administrative body. Stauffer
v. City ofSan Antonio, 344 S.W.2d 158, 160 (Tex. 1961); Glass v. Smith, 244 S.W.2d 645,652 (Tex.
1951). Because a civil servi.ce commission is an administrative body, it is not a court. And because
a civil service commission is not a court, any proceeding before it is not in a court of justice and,
therefore, not a "suit." A hearing before the independent third party hearing examiner under chapter
143 is not a civil suit as contemplated by section 142.009(a). Cf Tex. Employeers' Ins. Assn. v.
Sewell, 32 S.W.2d 262, 264 (Tex. Civ. App.-Waco 1930, writ refd) ("The Industrial Accident
Board is an administrative body, authorized by statute to exercise certain powers quasi judicial in
their nature. Nevertheless, it is not a court ...."); Tex. Liquor Control Bd. v. Jones, 112 S.W.2d
227, 229 (Tex. Civ. App.-Texarkana 1937, no writ) ("The cancellation of a permit to sell liquor
under the Liquor Control Act ... is not a civil suit or cause of action.").
For these reasons, we conclude that section 142.009(a) ofthe Local Government Code does
not require a municipality to pay a fire fighter or police officer for an appearance as a witness in a
civil service hearing before a hearing examiner when the fire fighter or police officer is subpoenaed
in his or her capacity as a fire fighter or police officer and testifies during time off. 3
30r course, section 142.009(a) is always subject to amendment by the Legislature.
The Honorable Joe Driver - Page 5 (GA-0612)
In connection with your question, we received briefing that suggests a court ofappeals would
construe the term "suit" in section 142.009 to include an administrative hearing. 4 The Combined
Law Enforcement Associations ofTexas ("CLEAT") writes to inform us about the holding in Harris
County Bail Bond Board v. Burns. See CLEAT Brief, supra note 3, at 4; see also Harris County
Bail Bond Bd v. Burns, 790 S.W.2d 862 (Tex. App.-Houston [14th Dist.] 1990, writ denied). In
the case, Bums was before the bail bond board on a bail bond license revocation proceeding. See
Burns, 790 S.W.2d at 862. Bums received legal counsel from successive members of the Texas
Legislature who each sought continuances from the license revocation proceedings under section
30.003(a), Civil Practice and Remedies Code. See ide at 863. Section 30.003(a) authorizes a
legislative continuance in "any criminal or ~ivil suit." TEX. CIV. PRAC. & REM. CODE ANN.
§ 30.003(a) (Vernon Supp. 2007). On the bail bond board's refusal to grant the continuance to
Burns's last counsel and its revocation of his license, Burns asked the district court to compel the
bail bond board to vacate its orders. See Burns, 790 S.W.2d at 863. The bail bond board argued that
section 30.003(a) did not apply to administrative hearings. See ide at 864. The district court
disagreed and granted Bums's writ ofmandamus. See ide The court of appeals in Burns upheld the
district court noting that the bail bond board possessed judicial power and employed judicial
procedures in its proceedings. See ide Based on its determination that the bail bond board proceeding
was adjudicatory in nature and without examining the meaning ofthe term "suit," the court held that
section 30.003(a) did apply to the bail bond board's administrative hearing. See id at 864.
Contrary to the Burns decision, an Austin court of appeals case, Smith v. Houston Chemical
Services, Inc., did analyze the meaning ofthe term "suit" in connection with section 30.003(a). See
Houston Chem. Servs., Inc., 872 S.W.2d at 274. The Austin Court ofAppeals expressly considered
whether the language in section 30.003(a) included a contested case proceeding before the Texas
Water Commission. See ide at 274; see also TEX. GOV'T CODE ANN. § 2001.176 (Vernon 2000)
(mandating that any petition seeking judicial review of an agency action be filed in a Travis County
district court). After an examination ofthe meaning ofthe language "applies to any criminal or civil
suit," the court ofappeals determined that section 30.003(a) did not. See Houston Chem. Servs., Inc.
at 274 (emphasis added). The court stated the language of section 30.003(a) applied to a "judicial
proceeding in a 'court'" and that the Texas Water Commission was "not a court." Id
The CLEAT Briefargues that because ofthe holding in Burns, the term "civil suit" in section
142.009(a) should be construed to include hearings before an administrative body. See CLEAT
Brief, supra note 2, at 5. As we noted previously, while the Burns opinion did hold that section
30.003(a) applied in a bail bond board's administrative proceeding, the court's holding was not
based on any analysis ofthe term "suit" in section 30.003(a). See Burns, 790 S.W.2d at 864. On the
other hand, the holding in Houston Chemical Services, Inc. is in accord with established precedent
regarding the nature ofproceedings before administrative bodies and it directly analyzed the meaning
of the term "suit." Accordingly, we believe Houston Chemical Services, Inc., not Burns, serves as
the guiding authority here. And our conclusion that a civil service hearing before a hearing examiner
is not a suit within the scope of section 142.009(a) is consistent with that guiding authority.
4See Letter from Tom A. Stribling, StaffAttorney, Combined Law Enforcement Associations ofTexas, to Nancy
S. Fuller, Opinion Committee Chair, at 4-5 (Nov. 12, 2007) (on file with the Opinion Committee) [hereinafter CLEAT
Brief].
The Honorable Joe Driver - Page 6 (GA-0612)
SUMMARY
Under section 142.009 of the Local Government Code, a
municipality is required to "pay a fire fighter or police officer for an
appearance as a witness in a criminal or civil suit in which the
municipality or political subdivision or government agency is a party
in interest if the appearance: (1) is required; (2) is made on time off;
and, (3) is made by the fire fighter or police officer in the capacity of
a fire fighter or police officer." In section 142.009, the Legislature
did not provide, however, that a municipality is required to pay a fire
fighter or police officer for an appearance as a witness in a civil
service hearing before a hearing examiner when the fire fighter' or
police officer is subpoenaed in his or her capacity as a fire fighter or
police officer and testifies during time off.
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee