Summary
reversing grant of jurisdictional plea because there was a fact question about whether hearing examiner considered as evidence document attached to postsubmission brief, even though that document was not referenced in the examiner's written decision
Summary of this case from City of Fort Worth v. O'NeillOpinion
NO. 03-14-00017-CV
05-11-2016
Michelle Gish, Appellant v. City of Austin, Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-13-001216, HONORABLE DARLENE BYRNE, JUDGE PRESIDINGMEMORANDUM OPINION
Michelle Gish was indefinitely suspended from her job with the Austin Police Department. She appealed that decision to a hearing examiner, who affirmed the suspension, and then to the district court, which granted the City of Austin's plea to the jurisdiction and dismissed her case. Gish contends that the trial court had jurisdiction under the Civil Service Act, while the City contends that Gish waived judicial review and that her claim is moot. We will reverse the dismissal of her claim under the Civil Service Act and remand it for further proceedings.
BACKGROUND
Much of this section is drawn from the Statement of Facts in appellant's brief. We may accept the facts recited therein as true unless they are contradicted. See Tex. R. App. P. 38.1(g).
Gish was one of several officers who secured a suspect to a gurney following a chase and struggle. The suspect spat on Gish, she slapped the suspect, and APD officer Jose Robledo pulled Gish away. APD Police Chief Art Acevedo suspended Gish after finding that she violated various policies including the use-of-force and honesty policies. Acevedo suspended Robledo, finding that he was untruthful during the investigation of this incident. Both officers appealed the findings to hearing examiners who upheld the suspensions. The examiner issued an opinion in Robledo's case after Gish's hearing, and the City discussed and attached the Robledo opinion to its post-submission brief for the hearing examiner in Gish's case. The hearing examiner upheld Gish's suspension in an opinion released seven weeks after the post-submission brief was filed.
Gish filed suit in district court against the City, seeking relief under the local government code and a declaratory judgment. The City filed a plea to the jurisdiction based on waiver, mootness, and governmental immunity. The trial court granted the plea without specifying a basis.
Gish sought the following declarations:
[that] (i) the CITY presented evidence to the hearing examiner outside of the hearing; (ii) the hearing examiner had the same duties and powers as the commission pursuant to Tex. Loc. Gov't Code § 143.057(f); (iii) the hearing examiner is confined to an examination of the evidence received at the hearing pursuant to Tex. Loc. Gov't Code § 143.053(d); (iv) the hearing examiner violated Tex. Loc. Gov't Code § 143.053(d) by considering evidence that was not presented at the hearing; (v) the hearing examiner's decision was procured by unlawful means in violation of Tex. Loc. Gov't Code § 143.057(j); (vi) any evidence received outside the bounds set by the statute is illegal, and destroys any presumption that the order is valid; (vii) GISH was denied procedural due process of law by virtue of the furnishing of evidence to the hearing examiner outside the confines of the hearing; and (viii) the hearing examiner's decision to uphold the indefinite suspension of GISH is void.
STANDARD OF REVIEW
We review de novo a trial court's ruling on a plea to the jurisdiction. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). A plaintiff must plead facts affirmatively showing that the trial court has jurisdiction. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We construe the pleadings liberally in favor of the plaintiff and look to her intent. See Miranda, 133 S.W.3d at 226. A trial court may consider evidence and must do so when required to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000). A plaintiff need not prove her claim in order to prove jurisdiction. See State v. Lueck, 290 S.W.3d 876, 884 (Tex. 2009). If the evidence creates a fact question about a jurisdictional issue that overlaps the merits, then the court cannot grant a plea to the jurisdiction. Miranda, 133 S.W.3d at 227-28.
DISCUSSION
In its brief on appeal, the City argues for dismissal of Gish's appeal to this Court, contending that her notice of appeal, filed 39 days after the judgment was signed, was too late. See Tex. R. App. P. 26.1 (notice of appeal generally due 30 days after judgment). Gish filed her notice of appeal within the 15-day period for seeking an extension of time to file a notice of appeal, see Tex. R. App. P. 26.3, and therefore implicitly sought an extension of time to file the notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). We grant the implied motion for extension of time, consider the notice of appeal timely filed, and deny the City's motion to dismiss. See id. at 616-17 (courts must interpret rules broadly so that right to appeal is not lost "by imposing requirements not absolutely necessary to effect the purpose of a rule").
Gish contends that the trial court erred by dismissing her suit because her claim is within the waiver of governmental immunity. In municipal civil service disciplinary cases arising from an indefinite suspension, a police officer may appeal to the Fire Fighters' and Police Officers' Civil Service Commission or to an independent hearing examiner. See Tex. Loc. Gov't Code §§ 143.010 (commission), 143.057(a) (hearing examiner). By choosing a hearing examiner, Gish waived her right to appeal to the judicial system unless the hearing examiner "was without jurisdiction or exceeded [his] jurisdiction or [] the order was procured by fraud, collusion, or other unlawful means." See id. § 143.057(j). Hearing examiners have the same duties and powers as commissions in this type of proceeding, id. § 143.057(f), which includes conducting the hearing fairly and impartially, rendering a just and fair decision, and considering only the evidence submitted at the hearing. Id. § 143.010(g). Gish contends that the City's filing of the Robledo opinion with the examiner weeks after the hearing ended at least raises a fact question about whether the examiner's order in this case was procured by "unlawful means," and thus raises a fact question concerning jurisdiction, rendering the grant of the plea to the jurisdiction erroneous.
The trial court also dismissed Gish's claims under the Uniform Declaratory Judgments Act. She mentions those claims in the statement of her issue presented in her brief, but provides no argument on those claims as required by rule to present error to this Court. See Tex. R. App. P. 38.1(i). The dismissal of the UDJA claims stands without further review. See Priddy v. Rawson, 282 S.W.3d 588, 596 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). --------
Courts have determined that a hearing examiner or commission's consideration or acceptance of evidence outside of the hearing shows procurement of the decision by "unlawful means." Steubing v. City of Killeen, 298 S.W.3d 673, 674-75 (Tex. App.—Austin 2009, pet. denied); Firemen's & Policemen's Civil Serv. Comm'n of City of Galveston v. Bonds, 666 S.W.2d 242, 244-45 (Tex. App.—Houston [14th Dist.] 1984, writ dism'd w.o.j.). In Steubing, the court of appeals noted that the examiner stated in his opinion "that when making his determination, he sua sponte considered various psychological studies and empirical studies that had not been admitted into evidence. In other words, the examiner considered information that was not presented during the hearing or offered by either party to the hearing." Steubing, 298 S.W.3d at 674-75. The trial court's holding that the decision had been procured through "unlawful means" expressly was not challenged on appeal. Id. at 675. In Bonds, the court held that the commission violated the ban on considering evidence from outside the hearing when, before the hearing, commissioners were given a packet of materials that contained at least one witness's sworn statement. 666 S.W.2d at 244. The court held that "[a]ny evidence received outside the bounds set by the statute is illegal, and destroys any presumption that the commission's order is valid." Id. at 245. Similarly, the supreme court set aside a commission's ruling after determining that the commission's post-hearing ex parte receipt, reading, and use of the three affidavits without notice to the police officer constituted a violation of procedural due process. Richardson v. City of Pasadena, 513 S.W.2d 1, 3 (Tex. 1974).
The City contends that this case is distinct from those cases in that the Robledo opinion was presented to the examiner as legal precedent or authority, not as evidence, and the opinion in this case does not mention that the examiner considered the Robledo opinion. Gish complains that the Robledo opinion was presented as evidence and contained summaries of testimony about the incident for which she was disciplined, which testimony was adduced ex parte with respect to her.
We conclude that the City's provision of the Robledo opinion presents a fact issue regarding whether it was effectively evidence presented outside the hearing, a circumstance that has been treated as procurement of an opinion by unlawful means. See id. When discussing in its post-submission brief to the examiner whether Gish proved that she was disciplined differently than other similarly situated officers, the City recounted testimony by the police chief and a sergeant, then wrote the following:
In fact, Jose Robledo, Appellant's former partner, received an indefinite suspension based on, inter alia, a sustained violation of the "Honesty" policy for failing to tell the truth about the August 31, 2011 incident. (SeeIn the Matter of Appeal Proceedings Between Jose Robledo and The City of Austin, attached hereto as Exhibit "A"). Therefore, Appellant cannot and did not prove by a preponderance of the credible
evidence that she received a greater discipline than another officer who committed conduct of "comparable seriousness" and her indefinite suspension should be affirmed.As described, the City presented the Robledo opinion to rebut evidence that Gish received disparate treatment, not simply as legal precedent. The City provided the entire Robledo opinion, which includes the result along with summaries of witness testimony regarding the incident for which Gish was suspended. The Robledo opinion was undisputedly filed after the hearing, and—although the examiner did not mention the Robledo opinion in the Gish case—there is at least a fact question as to whether the examiner considered the opinion and underlying facts as evidence and, thus, whether the hearing examiner's opinion concerning Gish was procured through consideration of evidence submitted outside the hearing contrary to statutory requirement. See Tex. Loc. Gov't Code §§ 143.010(g), .057(j).
The City argues that Gish's appeal is moot because the same evidence was presented by agreement at Robledo's and her hearings and she did not complain about the submission of the Robledo opinion during the seven weeks between when the City filed its brief and the examiner ruled. While joint exhibits were submitted by agreement for both hearings, the record indicates that witnesses testified at both hearings. There is no showing that the witness testimony was identical at the hearings, so even if identical evidence could moot the "unlawful" evidence issue, the mootness argument fails. The failure to object to the submission of the Robledo opinion did not resolve any controversy over its post-hearing submission, so the issue is not moot.
The City also argues that Gish waived her right to appeal both by choosing a hearing examiner and by failing to object to the submission of the Robledo opinion in the weeks before the examiner ruled in this case. Gish undisputedly waived her right to appeal, but that waiver is conditional and nullified if the hearing examiner's opinion is procured by unlawful means. See Tex. Loc. Gov't Code § 143.057(j). We do not find any requirement that the officer object to the consideration of evidence outside the hearing record in order to preserve her right to pursue judicial review. See id. §§ 143.010(g), .057(j). While that argument is consistent with Texas Rule of Appellate Procedure 33.1, the City does not cite us to such a preservation requirement in the Local Government Code regarding this jurisdiction issue.
We express no opinion on the resolution of the fact issue of whether the hearing examiner's opinion was unlawfully procured using evidence submitted outside the hearing, and we express no opinion on the merits of the appeal. We conclude only that the fact question on the jurisdictional issue renders erroneous the trial court's grant of the City's plea to the jurisdiction regarding the Chapter 143 claim on the materials submitted. See Miranda, 133 S.W.3d at 227-28.
CONCLUSION
We reverse the trial court's order granting the plea to the jurisdiction concerning the Chapter 143 claim and remand that claim to the trial court for further proceedings.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Pemberton and Bourland Reversed and Remanded Filed: May 11, 2016