the City of Waco, Texas v. Larry Kelley

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 No. 2002-1959-3

Opinion on remand

          The City of Waco appeals a summary judgment rendered in Larry Kelley’s favor which affirmed the decision of an independent hearing examiner: (1) reducing Kelley’s indefinite suspension as a police officer to a 180-day temporary suspension; (2) reinstating Kelley at the rank of sergeant; and (3) determining that Kelley “should be made whole subject to the normal principles of mitigation.”  The district court also awarded attorney’s fees to Kelley.  The City contends in four issues that: (1) the hearing examiner exceeded his jurisdiction by reducing Kelley’s suspension after finding the charges true; (2) the hearing examiner exceeded his jurisdiction by demoting Kelley to the rank of sergeant; (3) the hearing examiner exceeded his jurisdiction by awarding back pay and benefits to Kelley; and (4) the district court erred by awarding attorney’s fees to Kelley.  Kelley contends in a cross-issue that the court erred by denying his appeal of the hearing examiner’s refusal to dismiss the indefinite suspension because he was indefinitely suspended before he was convicted of the offense which was the basis for the suspension.

          On original submission, this Court vacated the judgment of the trial court for want of jurisdiction and dismissed the appeal.  City of Waco v. Kelley, No. 10-03-214-CV, 2004 WL 2481383 (Tex. App.—Waco Oct. 29, 2004) (citing City of Houston v. Clark, 142 S.W.3d 350 (Tex. App.—Houston [1st Dist.] 2004)).  On decisions issued the same day however, the Supreme Court reversed the decision of the First Court of Appeals in Clark and our decision in Kelley, concluding in both that the trial court had jurisdiction.  See City of Waco v. Kelley, 197 S.W.3d 324, 325 (Tex. 2006) (per curiam); City of Houston v. Clark, 197 S.W.3d 314, 324 (Tex. 2006).

          We will affirm in part and reverse and render in part.

Background

          Kelley was Waco’s Assistant Chief of Police in January 2001 when he was arrested in Austin for driving while intoxicated.  After an internal investigation, Chief of Police Alberto Melis issued a letter of suspension on April 2, suspending Kelley indefinitely.  Kelley appealed the suspension to an independent third party hearing examiner who issued his decision in June 2002.  The hearing examiner found the charges to be true but reduced the indefinite suspension to a 180-day suspension with reinstatement at the rank of sergeant.  The examiner also determined that Kelley “should be made whole subject to the normal principles of mitigation.”

          The City challenged this decision by appeal to district court under section 143.057(j) of the Local Government Code.  See Tex. Loc. Gov’t Code § 143.057(j) (Vernon Supp. 2006).  The City contended in its petition that the hearing examiner exceeded his jurisdiction by (a) considering evidence not presented at the hearing, (b) reducing the period of suspension and demoting Kelley, and (c) awarding back pay and benefits.  Kelley filed a general denial, accompanied by: (a) a request to dismiss the City’s appeal because there was no basis for the district court to assert jurisdiction under section 143.057(j), (b) a request that the district court reconsider the hearing examiner’s denial of his motion to dismiss the indefinite suspension, and (c) a request for attorney’s fees.

          Kelley later filed a motion to dismiss the city’s appeal to district court for want of jurisdiction alleging that Chapter 143 of the Local Government Code provides for an appeal of a hearing examiner’s decision only by a fire fighter or police officer.

          Kelley also filed a no-evidence summary judgment motion.  In this motion, Kelley contended that the City could produce no evidence that the hearing examiner exceeded his jurisdiction.  In a response, the City argued that the hearing examiner exceeded his jurisdiction by: (1) considering a document entitled a Blood Alcohol Content Calculator which was not presented during the hearing but attached to a post-hearing brief submitted by Kelley; (2) reducing Kelley’s indefinite suspension to a 180-day suspension after finding the charges against Kelley true; (3) awarding Kelley back pay and benefits; and (4) considering Kelley’s “popularity within the Department” as a basis for reinstatement.

          Finally, Kelley filed a counter-appeal contending that the hearing examiner should have granted his motion to dismiss the City’s letter suspension dated April 2, 2001 because the City did not strictly comply with the requirements of section[1] 143.056.  See Tex. Loc. Gov't Code Ann. § 143.056 (Vernon 1999).

          After a hearing, the court granted Kelley’s no-evidence motion, denied Kelley’s motion to dismiss, denied Kelley’s counter-appeal, affirmed the hearing examiner’s decision, and awarded Kelley $12,500 in attorney’s fees.

Standards of Review

          We apply the same standard in reviewing a no-evidence summary judgment as we would in reviewing a directed verdict.  Rice v. Russell-Stanley, L.P., 131 S.W.3d 510, 513 (Tex. App.—Waco 2004, pet. denied).  We review the summary-judgment evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences.  Id. A no-evidence summary judgment will be defeated if the non-movant produces some evidence on the elements challenged by the movant.  Id.

          The decision of an independent third-party hearing examiner ordinarily is “final and binding on all parties.” Tex. Loc. Gov’t Code Ann. § 143.057(c) (Vernon Supp. 2006).  However, a party may challenge the hearing examiner’s decision in district court on the grounds that the hearing examiner “was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means.”  Id. § 143.057(j); see City of Laredo v. Leal, 161 S.W.3d 558, 562-63 (Tex. App.—San Antonio 2004, pet. denied).  This has been construed as an “abuse-of-authority” standard.  See Leal, 161 S.W.3d at 563; City of Garland v. Byrd, 97 S.W.3d 601, 607 (Tex. App.—Dallas 2002, pet. denied); Nuchia v. Tippy, 973 S.W.2d 782, 786 (Tex. App.—Tyler 1998, no pet.).  “An abuse of authority occurs when a decision is so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law.”  Leal, 161 S.W.3d at 563; Byrd, 97 S.W.3d at 607; see also City of Carrollton Civil Serv. Comm’n v. Peters, 843 S.W.2d 186, 188 (Tex. App.—Dallas 1992, writ denied) (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)).

Authority to Reduce Period of Suspension

          The City contends in its first issue that the hearing examiner exceeded his jurisdiction by reducing the length of Kelley’s suspension after finding that Kelley violated the Code of Conduct provisions of the Waco Police Department General Orders (General Order 10.01) and section 53 of the Fire Fighters’ and Police Officers’ Civil Service Regulations.  The City argues that section 143.014 controlled the hearing examiner’s decision because Kelley was an assistant chief when he was suspended.  See Tex. Loc. Gov’t Code Ann. § 143.014 (Vernon 1999).

          Kelley responds that the hearing examiner’s decision is authorized by section 143.053, which applies generally to police officers and fire fighters with civil service protection.  Tex. Loc. Gov’t Code Ann. § 143.053 (Vernon Supp. 2006).  Therefore, we must construe these statutes to determine whether the hearing examiner exceeded his authority.

          Our purpose in construing a statute is to determine the Legislature’s intent.  As a starting point, we construe statutes as written and, if possible, ascertain intent from the statutory language.  We may also consider other factors, including the object the statute seeks to obtain, legislative history, and the consequences of a particular construction.  Moreover, we must always consider a statute as a whole and attempt to harmonize its various provisions.

Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex. 2002) (citations omitted); see also Tex. Gov’t Code Ann. §§ 311.021, 311.023 (Vernon 2005).  “Statutory construction is a question of law, and our review is accordingly de novo.”  State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006).

          Section 143.014 applies only to persons “appointed to a position in the classification immediately below that of the head of the police [or fire] department.”  Id. § 143.014(d), (e).

          If a person appointed under this section is charged with an offense in violation of civil service rules and indefinitely suspended by the department head, the person has the same rights and privileges of a hearing before the commission[2] in the same manner and under the same conditions as a classified employee.  If the commission, a hearing examiner, or a court of competent jurisdiction finds the charges to be untrue or unfounded, the person shall immediately be restored to the same classification, or its equivalent, that the person held before appointment.  The person has all the rights and privileges of the prior position according to seniority, and shall be repaid for any lost wages.

Id. § 143.014(h) (footnote added).

          The City contends that, under the plain language of section 143.014(h), an assistant chief may be restored to a former position only if the hearing examiner “finds the charges to be untrue or unfounded.”  According to the City’s argument, if the hearing examiner had found the charges to be untrue, then Kelley could have been restored to the position of commander, which he held before he was appointed assistant chief. Because the hearing examiner found the charges true however, the City insists that the hearing examiner’s only option was to uphold the indefinite suspension.

          Kelley contends that subsections (e) and (f) of section 143.053 support the hearing examiner’s decision.

(e) In its decision, the commission shall state whether the suspended fire fighter or police officer is:

(1) permanently dismissed from the fire or police department;

                 (2) temporarily suspended from the department; or

(3) restored to the person’s former position or status in the department’s classified service.

(f) If the commission finds that the period of disciplinary suspension should be reduced, the commission may order a reduction in the period of suspension.  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.  Standard payroll deductions, if any, for retirement and other benefits restored shall be made from the compensation paid, and the municipality shall make its standard corresponding contributions, if any, to the retirement system or other applicable benefit systems.

Id. § 143.053(e), (f) (Vernon Supp. 2006).

          Unlike section 143.014 which specifically applies to assistant chiefs, section 143.053 applies generally to police officers and fire fighters with civil service protection.  The City argues that these provisions cannot be construed harmoniously and that section 143.014 provides the exclusive “remedy” for an officer in Kelley’s position.  Kelley responds that the remedy provided by section 143.014(h) applies only when the charges are found to be untrue.  He suggests that this unique remedy was created for assistants appointed under section 143.014 because such appointees serve solely “at the pleasure of the department head” and may be removed at any time.  See id. § 143.014(g).  Thus, even if an appointee is found to have been suspended on the basis of false charges, the assistant cannot be reinstated to the appointed position unless the department head chooses to do so.

          Section 143.021(b) seems to support the City’s interpretation.  Id. § 143.021(b) (Vernon 1999).  That statute provides in pertinent part, “Except for the department head and a person the department head appoints in accordance with Section 143.014 or 143.102, each fire fighter and police officer is classified as prescribed by this subchapter and has civil service protection.”  Id. (emphasis added). Thus, under the plain language of section 143.021(b), Kelley did not have “civil service protection” at least for his appointed position of assistant chief.  This interpretation is supported by the Revisor’s Note accompanying section 143.021.

          Although Section 8(c) of the source law states that all fire fighters and police officers except the department head are under civil service protection, it is clear from Section 8(f) of the source law, codified as Section 143.102,[3] that the legislature intended that a person appointed as assistant chief not have full civil service protection.  The source law reflects this intent.

Id. § 143.021 revisor’s note (2) (Vernon 1999) (footnote added).

          The former article 1269m, section 8(c) of the Revised Civil Statutes provided, “Firemen and policemen shall be classified as above provided, and shall be under civil service protection except the Chief or Head of such Fire Department or Police Department, by whatever name he may be known.”  Act of May 30, 1983, 68th Leg., R.S., ch. 420, § 2, 1983 Tex. Gen. Laws 2246, 2248 (repealed 1987) (current version at Tex. Loc. Gov’t Code Ann. § 143.021(b)).

          Article 1269m, section 8A(f)[4] provided:

          Except for the chief or head of the fire or police department, and except for those persons selected and appointed to the classification immediately below the chief or department head by the chief or head of the fire or police department, firemen and policemen are classified as prescribed by this section, and are under civil service protection.

Act of May 30, 1983, 68th Leg., R.S., ch. 420, § 3, 1983 Tex. Gen. Laws 2246, 2251 (repealed 1987) (current version at Tex. Loc. Gov’t Code Ann. § 143.021(b)).

          Although the Legislature did not retain the same language when it codified the provisions of the Civil Service Act in the Local Government Code, no substantive change was intended thereby. Act of May 1, 1987, 70th Leg., R.S., ch. 149, § 51, 1987 Tex. Gen. Laws 707, 1308; see also Tex. Loc. Gov’t Code Ann. § 1.001(a) (Vernon 1999); Coastal Marine Serv. of Tex., Inc. v. City of Port Neches, 11 S.W.3d 509, 512-13 (Tex. App.—Beaumont 2000, no pet.); Collier v. Firemen’s & Policemen’s Civil Serv. Comm’n, 817 S.W.2d 404, 405 n.1 (Tex. App.—Fort Worth 1991, writ denied).

          Therefore, an assistant police chief appointed under section 143.014 does “not have full civil service protection.” Tex. Loc. Gov’t Code Ann. § 143.021 revisor’s note (2).  We construe this to mean that an assistant police chief does “not have full civil service protection” in his or her appointed position. This interpretation is best illustrated by contrasting it with the interpretation advanced by the City.  See Tex. Gov’t Code Ann. § 311.023(5) (court may consider “consequences of a particular construction” when interpreting a statute); Marcus Cable Assocs., 90 S.W.3d at 706 (same).

          First, we consider a hypothetical scenario unlike Kelley’s in which the charges are found to be untrue.  Because the assistant serves at the pleasure of the department head, a civil service commission or hearing examiner has no authority to order the reinstatement of an assistant who has been indefinitely suspended to that appointed position if the charges are found untrue.  Rather, the greatest relief the commission or hearing examiner can afford is to restore the appointed person to the position held immediately before the appointment.  Id. § 143.014(h).  Conversely, for a suspended officer with “full” civil service protection, the commission or hearing examiner may order the officer “restored to the person’s former position or status” if the charges are found untrue.  Id. § 143.053(e)(3).

          Now we consider a scenario like Kelley’s in which the charges are found to be true.  Under the City’s approach, an assistant chief in this situation has no recourse.  Despite twenty-eight years of service to the department, Kelley or any similarly-situated officer could be dismissed[5] because he accepted the appointed position of assistant chief.  Conversely, an officer of lower rank could seek reinstatement or a reduction of suspension, even if the charges were found to be true.  Id. § 143.053(e), (f); Leal, 161 S.W.3d at 563-64.  In this regard, the City’s interpretation is similar to that of the City of Laredo in Perez v. City of Laredo, 82 S.W.3d 605 (Tex. App.—San Antonio 2002, no pet.).

          In that case, Stephen Perez had served in the Laredo police department for nineteen years.  He held the rank of lieutenant from August 1992 until February 1994 when he was appointed to the position of assistant chief.  In May 1997, he returned to the rank of lieutenant.  He took a promotional examination for the rank of captain in January 1999 and placed first.  However, the commission upheld the second-place finisher’s challenge to Perez’s qualifications because Perez had not served as lieutenant for the two years immediately preceding the date of the examination.  See Tex. Loc. Gov’t Code Ann. § 143.028(b) (Vernon Supp. 2006).  The City of Laredo defended the commission’s decision on appeal to the district court and then to the San Antonio Court of Appeals.  However, the San Antonio Court rejected the City of Laredo’s position and concluded that Perez was qualified.

Under the City’s interpretation, an officer who has faithfully served his or her community would be penalized for willingly serving in a position, such as assistant chief, from which he or she could be removed without the opportunity to file an appeal or grievance.  We believe such a result would be contrary to the [Civil Service] Act’s intent.  Therefore, we hold that because Perez retained his years of continuous service in the rank of assistant chief when he was reinstated to the rank of lieutenant, he was eligible for promotion and eligible to take the promotional examination.

Perez, 82 S.W.3d at 608.  Thus, an officer who accepts an appointment under section 143.014 does not forfeit all benefits of civil service protection by accepting that position.

          Rather, the civil service protections do not apply to that appointed position.  This interpretation is supported by examining other provisions of the Civil Service Act.  For example, an officer need not pass an examination to be appointed as an assistant chief under section 143.014.[6]  Cf. Tex. Loc. Gov’t Code Ann. § 143.021(c) (Vernon 1999).  And if an officer appointed under section 143.014 is suspended on the basis of charges which are later found to be untrue, the officer cannot be reinstated to the appointed position by the commission or by a hearing examiner.  Cf. id. § 143.053(e)(3).

          Therefore, we hold that section 143.014(h) applies only when the commission, a hearing examiner, or a court finds the charges against an assistant chief to be untrue or unfounded.  Thus, this provision operates to prevent the hearing examiner from restoring the officer to the appointed position in this unique situation.

          Apart from this unique situation, an independent hearing examiner has the authority and jurisdiction to reduce the length of an indefinite suspension, even if the charges are found to be true.  See Tex. Loc. Gov’t Code Ann. § 143.053(e)(2), (f); Leal, 161 S.W.3d at 563-64.  Therefore, the hearing examiner in Kelley’s case did not exceed his jurisdiction by reducing the length of Kelley’s suspension after finding the charges true.

Authority to Demote

          The City contends in its second issue that the hearing examiner exceeded his jurisdiction by demoting Kelley to the rank of sergeant.  This Court has already determined that a civil service commission lacks authority or jurisdiction to order the demotion of a police officer when deciding an appeal of a disciplinary suspension.  See Kirkwood v. City of Corsicana, 871 S.W.2d 544, 547 (Tex. App.—Waco 1994, no writ). This same principle applies to an independent hearing examiner.  See Tex. Loc. Gov’t Code Ann. § 143.057(f) (Vernon Supp. 2006).  Therefore, we sustain the City’s second issue.

Award of Back Pay and Benefits

          The City contends in its third issue that the hearing examiner exceeded his jurisdiction by awarding back pay and benefits to Kelley because: (1) the hearing examiner should have upheld the indefinite suspension; (2) section 143.014 authorizes an award of back pay only when the hearing examiner finds the charges to be untrue or unfounded; and (3) even assuming the hearing examiner properly demoted Kelley to the rank of sergeant, the Civil Service Act does not provide for an award of back pay and benefits when an officer is demoted.

          The hearing examiner actually determined that Kelley “should be made whole subject to the normal principles of mitigation.”  The parties agree that this constitutes an award of back pay and benefits from the date the reduced, 180-day suspension ended.

          We have already determined that the hearing examiner had the authority to reduce Kelley’s indefinite suspension. Thus, we reject the City’s first challenge to the award of back pay and benefits.

          With regard to the City’s second argument regarding section 143.014, we have already explained that this section applies only when the hearing examiner finds the charges to be untrue or unfounded and operates to prevent the hearing examiner from restoring the officer to the appointed position.  Thus, we reject the City’s second argument.

          Regarding the City’s final challenge to the award of back pay and benefits, we have already determined that the hearing examiner was not authorized to order Kelley’s demotion but he was authorized to reduce the term of Kelley’s suspension.  When an officer receives a temporary suspension, the officer is not entitled to compensation during the period of suspension.  See, e.g., Leal, 161 S.W.3d at 563-64; cf. Tex. Loc. Gov't Code Ann. § 143.053(f) (if police officer “restored” to position or class from which suspended, officer entitled to “full compensation for the actual time lost” as a result of improper suspension); City of Waco v. Bittle, 167 S.W.3d 20, 30 (Tex. App.—Waco 2005, pet. denied) (same).

          The City does not contend that the hearing examiner awarded back pay and benefits during the period of the 180-day suspension.  Kelley is entitled to compensation following the expiration of his suspension, which includes back pay and benefits from the end of the period of suspension through the date of the hearing examiner’s decision.  Therefore, the hearing examiner did not exceed his authority or jurisdiction by determining that Kelley “should be made whole subject to the normal principles of mitigation.”

          Accordingly, we overrule the City’s third issue.

Attorney’s Fees

          The City contends in its fourth issue that the district court erred by awarding attorney’s fees to Kelley.

          Section 143.015(c), which governs the appeal to district court of a civil service commission decision, provides that the district court “may award reasonable attorney’s fees to the prevailing party and assess court costs against the nonprevailing party.”  Tex. Loc. Gov’t Code Ann. § 143.015(c) (Vernon 1999).  The Dallas Court of Appeals has concluded that this provision also applies to an appeal of an independent hearing examiner’s decision under section 143.057(j).  City of Carrollton v. Popescu, 806 S.W.2d 268, 273-74 (Tex. App.—Dallas 1991, no writ); see also Tex. Loc. Gov’t Code Ann. § 143.057(j) (Vernon Supp. 2006).

          As the Dallas Court explained, “[t]he statutory provisions of sections 143.015 and 143.057 must be read together in order for the trial court to grant the proper legal or equitable relief necessary to carry out the purposes of Chapter 143.”  Popescu, 806 S.W.2d at 274. This rationale is similar to the reasoning we employed in construing sections 143.053 and 143.057, and we find it persuasive.

          Nevertheless, the City contends that Kelley was not the “prevailing party” in the City’s appeal to the district court.  We disagree.  The “prevailing party” for purposes of an attorney’s fee award has been variously defined as:

· “the party to the suit ‘who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of its original contention”; Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 564 (Tex. App.—Texarkana 2003, pet. denied) (quoting FDIC v. Graham, 882 S.W.2d 890, 900 (Tex. App.—Houston [14th Dist.] 1994, no writ); accord Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731, 749 (Tex. App.—Fort Worth 2005, no pet.); Black’s Law Dictionary 1352 (4th ed. rev. 1968);

· the one “who is vindicated by the trial court’s judgment”; Head, 159 S.W.3d at 749; Flagship Hotel, 117 S.W.3d at 565;

· the “party in whose favor a judgment is rendered, regardless of the amount of damages awarded.”  Flagship Hotel, 117 S.W.3d at 565 (quoting Black’s Law Dictionary 1145 (7th ed. 1999)); accord Black’s Law Dictionary 1154 (8th ed. 2004).  

          Here, the City was dissatisfied with the hearing examiner’s decision to reduce Kelley’s suspension and award him back pay and benefits, so the City appealed to the district court.  The district court upheld the hearing examiner’s decision in every respect.  Under any of these definitions, Kelley is the prevailing party.  Accordingly, we conclude that the district court was authorized to award Kelley attorney’s fees as the prevailing party.  See Popescu, 806 S.W.2d at 273-74.  We overrule the City’s fourth issue.

Cross-Appeal

          Kelley contends in his sole cross-issue that the district court erred by denying his appeal of the hearing examiner’s refusal to dismiss the indefinite suspension.  However, Kelley did not file a separate notice of appeal, even though he seeks to alter the district court’s judgment.  See Tex. R. App. P. 25.1(c).  Therefore, he did not properly invoke this Court’s jurisdiction to consider his cross-issue.  See Brooks v. Northglen Ass’n, 141 S.W.3d 158, 171 (Tex. 2004); In re M.P.M., 161 S.W.3d 650, 660-61 (Tex. App.—San Antonio 2005, no pet.); City of Houston v. Boyle, 148 S.W.2d 171, 175 n.5 (Tex. App.—Houston [1st Dist.] 2004, no pet.).

Conclusion

The independent hearing examiner acted within his jurisdiction and authority by reducing the length of Kelley’s suspension and did not exceed his jurisdiction or authority by determining that Kelley “should be made whole subject to the normal principles of mitigation.”  The district court properly awarded Kelley his attorney’s fees.  However, the hearing examiner exceeded his jurisdiction and authority by ordering Kelley’s demotion. 

Accordingly, we affirm those portions of the judgment reducing the length of Kelley’s suspension and awarding Kelley his attorney’s fees.  However, we reverse that portion of the judgment ordering Kelley’s reinstatement at the rank of sergeant, and we render judgment reinstating Kelley at the rank of commander, which was the rank he held immediately before his appointment as assistant chief.  See Butler v. Group Life & Health Ins. Co., 962 S.W.2d 296, 302 (Tex. App.—Austin 1998, no pet.) (reversing district court judgment which upheld administrative determination, and rendering judgment in favor of plaintiff); Jim Sowell Constr. Co. v. Dallas Cent. Appraisal Dist., 900 S.W.2d 82, 86 (Tex. App.—Dallas 1995, writ denied) (reversing district court judgment which upheld administrative decision in appraisal dispute, and rendering judgment in favor of plaintiff).

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)[7]

Affirmed in part, Reversed

          and Rendered in part

Opinion delivered and filed May 2, 2007

[CV06]

---

[1]           The use of the term “section” hereinafter refers to a section of the Local Government Code unless otherwise indicated.

[2]           An independent third party hearing examiner “has the same duties and powers as the commission.”  Tex. Loc. Gov’t Code Ann. § 143.057(f) (Vernon Supp. 2006).

[3]           Section 143.102 is comparable to section 143.014 and provides for the appointment of assistant chiefs in a municipality with a population of 1.5 million or more.  See id. § 143.101 (Vernon 1999), § 143.102 (Vernon Supp. 2006).

[4]           Although the revisor’s note refers to “Section 8(f) of the source law,” article 1269m, section 8 did not have a subsection (f).  See Act of May 30, 1983, 68th Leg., R.S., ch. 420, § 2, 1983 Tex. Gen. Laws 2246, 2247-49.  From the context, it appears that the proper reference is to section 8A(f).

[5]           “An indefinite suspension is equivalent to dismissal from the department.”  Tex. Loc. Gov’t Code Ann. § 143.052(b) (Vernon 1999); see also Kirkwood v. City of Corsicana, 871 S.W.2d 544, 545 n.1 (Tex. App.—Waco 1994, no writ).

[6]           To be eligible for appointment under section 143.014, an officer must: “(1) be employed by the municipality’s police department as a sworn police officer; (2) have at least two years’ continuous service in that department as a sworn police officer; and (3) meet the requirements for appointment as head of a police department prescribed by Section 143.013(b).”  Tex. Loc. Gov't Code Ann. § 143.014(d) (Vernon 1999).  With regard to requirement (3), “A person appointed as head of a police department must be eligible for certification by the Commission on Law Enforcement Officer Standards and Education at the intermediate level or its equivalent as determined by that commission and must have served as a bona fide law enforcement officer for at least five years.”  Id. § 143.013(b) (Vernon 1999).

[7] In reading the dissenting opinion’s Prologue and Epilogue, we are reminded of the recent observation of the Court of Criminal Appeals:

            First, the statement[s] [are] unnecessary; [they] contribute[ ] nothing to the legal issue before us.  Second, and most importantly, [they are] highly unprofessional.  When a judge chastises other members of the judiciary in this manner, it not only reflects poorly on the judge, it undermines the integrity of the justice system.  The words of Supreme Court Justice Kennedy are particularly appropriate here:

The collegiality of the judiciary can be destroyed if we adopt the habits and mannerisms of modern, fractious discourse. Neither in public nor in private must we show disrespect for our fellow judges.  Whatever our failings, we embody the law and its authority.  Disrespect for the person leads to disrespect for the cause.

            If public respect for the judiciary is to be maintained, it must begin from within. 

Ex parte Olivares, 202 S.W.3d 771, 773 (Tex. Crim. App. 2006) (quoting Anthony M. Kennedy, Judicial Ethics and the Rule of Law, 40 St. Louis U. L.J. 1067, 1072 (1996)).