Opinion
No. 10-06-00376-CV
Opinion delivered and filed May 2, 2007.
Appeal from the 85th District Court Brazos County, Texas, Trial Court No. 06-001003-CV-85.
Before Chief Justice Gray, Justice Vance, and Justice Reyna.
MEMORANDUM OPINION
The City of Bryan indefinitely suspended Spry, an officer of the Bryan Police Department subject to the Texas Civil Service Act. See TEX. LOC. GOV'T CODE ANN. §§ 143.001-143.134 (Vernon 1999 Supp. 2006). Spry appealed the suspension to an independent third-party hearing examiner, who ruled in favor of the City. Spry purported to appeal to district court, which rendered summary judgment in favor of the City. Spry appeals. We affirm.
In Spry's first issue, he contends that the trial court erred in granting the City's motion for summary judgment. In Spry's second issue, he contends that the trial court erred in denying Spry's motion for summary judgment.
In a traditional motion for summary judgment, "[t]he judgment sought shall be rendered forthwith if" the summary-judgment evidence "show[s] that . . . there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. . . ." TEX. R. CIV. P. 166a(c); see W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989). "We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)); see W. Invs. at 550; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We "resolve any doubt in the non-movant's favor." W. Invs. at 550; accord Nixon at 548-49.
A suspended civil-service officer may appeal the suspension to a hearing examiner. TEX. LOC. GOV'T CODE ANN. § 143.057(a) (Vernon Supp. 2006). "The hearing examiner's decision is final and binding. . . ." Id. § 143.057(c) (Vernon Supp. 2006). If an officer appeals to a hearing examiner, the officer "automatically waives all rights to appeal to a district court except as provided by" Local Government Code Section 143.057(j). Id.; see id. (j) (Vernon Supp. 2006). Section 143.057(j) provides, "A district court may hear an appeal of a hearing examiner's award only on the grounds that the" examiner "was without jurisdiction or exceeded" the examiner's "jurisdiction or that the order was procured by fraud, collusion, or other unlawful means." Id. (j).
The parties agree on the standard of review of the hearing examiner's decision. "The standard to judge whether a hearing examiner was without jurisdiction or exceeded his jurisdiction `has been interpreted as an "abuse of authority" standard.'" (Spry Br. at 7 (quoting Nuchia v. Tippy, 973 S.W.2d 782, 786 (Tex.App.-Tyler 1998, no pet.)); accord City Br. at 12); see City of Laredo v. Leal, 161 S.W.3d 558, 563 (Tex.App.-San Antonio 2004, pet. denied). "An abuse of authority occurs when a decision is so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law." (Spry Br. at 7 (quoting City of Carrollton Civil Serv. Comm'n v. Peters, 843 S.W.2d 186, 188 (Tex.App.-Dallas 1992, writ denied)); City Br. at 12); see City of Laredo at 563.
A hearing examiner's decision is reviewed "only for reasonableness, not correctness." See Bradford v. Pappillion, 207 S.W.3d 841, 845 (Tex.App.-Houston [14th Dist.] 2006, no pet.).
The first ground of Spry's motion for summary judgment was that the hearing examiner was without jurisdiction. The second ground was that the examiner exceeded his jurisdiction. The first ground of the City's motion was the converse, that the examiner was not without jurisdiction and did not exceed his jurisdiction.
Spry's motion also contained a third ground, and the City's a second converse ground, concerning Spry's request for declaratory relief. Spry "is abandoning such request and motion on appeal." (Br. at 5 n. 4.) The parties do not address those summary-judgment grounds on appeal.
The jurisdictional arguments concern whether the police chief's letter of suspension informed Spry of his right of appeal. "The full performance of all conditions established by the civil service laws is an essential prerequisite to the jurisdiction of the removing body over the subject matter of the removal of an officer." Bichsel v. Carver, 159 Tex. 393, 398, 321 S.W.2d 284, 287 (1959) (quoting City of Sherman v. Arnold, 148 Tex. 516, 520, 226 S.W.2d 620, 622 (1950)); accord Firefighters' Police Officers' Civil Serv. Comm'n v. Ceazer, 725 S.W.2d 431, 433 (Tex.App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.). The Civil Service Act provides:
[T]he letter of disciplinary action . . . issued to a . . . police officer must state that in an appeal of an indefinite suspension . . ., the appealing . . . police officer may elect to appeal to an independent third party hearing examiner. . . . The letter must also state that if the . . . police officer elects to appeal to a hearing examiner, the person waives all rights to appeal to a district court except as provided by [Section 143.057,] Subsection (j).
TEX. LOC. GOV'T CODE ANN. § 143.057(a); see id. (j), § 143.003(1) (Vernon Supp. 2006).
Spy argues that the letter does not "state in the body of the letter that, if Spry elected to appeal to a hearing examiner, he would waive all rights to appeal to a district court except as provided by subjection (j) of the Texas Local Government Code Section 143.057." (Br. at 2 (internal citation omitted)); see TEX. LOC. GOV'T CODE ANN. § 143.057(j). Spry points to the City's admission that the letter "does not state" above the police chief's signature "that if Shane Spry elects to appeal to a hearing examiner, he will waive all rights to appeal to a district court except as provided by subsection (j) of Texas Local Government Code Section 143.057." (Br. at 8 (quoting 2 C.R. at 136)); see TEX. LOC. GOV'T CODE ANN. § 143.057(j). Spry also points to the City's admission that the chief "did not quote the language of § 143.057(a) in the body of the memorandum of indefinite suspension." (Br. at 8-9 (quoting 1 C.R. at 28)); see TEX. LOC. GOV'T CODE ANN. § 143.057(a).
The police chief's letter concluded:
Therefore, you are hereby indefinitely suspended for the violations as set out herein before, based on the facts, circumstances and specifications as herein before specifically stated and I have served upon you, as provided in Texas Local Government Code, Chapter 143, Municipal Civil Service, a true copy of these charges and reasons which shall serve as your notice of the order of Indefinite Suspension [. . . ], and of your right of appeal to an independent third party hearing examiner [. . . .] I have attached copies of section[. . .] 143 057 of the Local Government code to fully apprise you of your rights.
[sic] (1 C.R. at 71 (ellipses added)); see TEX. LOC. GOV'T CODE ANN. §§ 143.001-143.134. Attached was a copy of Section 143.057.
The hearing examiner's decision stated, "Because the letter of indefinite suspension referenced and also attached Sec. 143.057(a), the Hearing Examiner finds that the letter of indefinite suspension was sufficient to comply with the applicable section of the Firefighter and Police Civil Service Act in controversy here." (1 C.R. at 40); see TEX. LOC. GOV'T CODE ANN. § 143.057(a). The examiner notes, "There is no requirement that the required wording of 143.057(a) be in any particular place in the letter." (1 C.R. at 40.) "Therefore the Hearing Examiner h[e]ld that the defect in the letter of indefinite suspension . . . in this case d[id] not deprive the Examiner of jurisdiction." ( Id. at 39.)
We cannot say that the hearing examiner's holding that he had jurisdiction and acted within his jurisdiction constituted an abuse of his authority. Viewing the evidence in the light most favorable to Spry, we hold that the trial court did not err in granting the City's summary-judgment motion or in overruling Spry's summary-judgment motion. We overrule Spry's issues.
Having overruled Spry's issues, we affirm.