Opinion
No. 04-05-00683-CV
Delivered and Filed: June 28, 2006.
Appeal from the 73rd Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-02203, Honorable David Berchelmann, Jr., Judge Presiding.
Reversed and Remanded.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Erric Toliver appeals the trial court's order granting the City of San Antonio's plea to the jurisdiction. Because a question of fact was raised regarding the jurisdictional issue, the trial court erred in granting the plea. Accordingly, we reverse the trial court's order and remand the cause to the trial court for further proceedings.
Background
Toliver, a firefighter, was issued a notice of indefinite suspension without pay on May 22, 2002, after testing positive for cocaine. Toliver appealed the suspension to a hearing examiner. The hearing examiner issued a decision denying the appeal on February 1, 2003.
Attached to the City's answer is a letter dated February 2, 2002, in which the hearing examiner refers to Toliver's appeal and states that his opinion is enclosed. On February 12, 2003, Toliver filed a petition appealing the hearing examiner's decision in district court. On July 25, 2005, the City filed a plea to the jurisdiction asserting that the district court did not have jurisdiction to consider the appeal because, "The TEX. LOC. GOV. CODE, including § 143.057(j) together with § 143.015(a), requires Plaintiff to file his lawsuit within 10 days of the date of the decision by the Hearing Examiner. Plaintiff Toliver need [sic] to file his lawsuit by February 11, 2003 and he failed to do so." A hearing on the plea to the jurisdiction was held on August 1, 2005, and the trial court entered an order granting the plea on August 8, 2005.
Without a record from the hearing on the City's plea, we are unable to determine whether the trial court was misled by the City's allegation in its plea that Tolvier was required "to file his lawsuit within 10 days of the date of the decision by the Hearing Examiner." Although this was the applicable standard for forty years under article 1269m, section 18 of the revised civil statutes, it has not been the standard since the 1987 adoption of section 143.015 of the Local Government Code, which codified that the 10 day period runs from either the date the decision is sent by certified mail or the date the decision is personally received. See City of Houston Fire Fighters' v. Morris, 949 S.W.2d 474, 478 (Tex.App.-Houston [14th] 1997, pet. denied).
Toliver filed a motion for new trial asserting that the date for determining whether his appeal to district court was timely should have been the date his representative received the hearing examiner's decision because the decision was not mailed by certified mail. Toliver attached his representative's affidavit to his motion in which his representative stated, "This award was received by me on or about February 6, 2003 and was sent via regular First Class United States Mail. The award was not sent by certified mail." The City objected to the affidavit on various grounds. After a hearing, the trial court sustained the objections and denied the motion for new trial.
Even if the trial court had not sustained the objections, it is unclear what effect these statements would have had on the jurisdictional issue because one court has stated that the phrase "personally received" does not mean "actually received" and is not applicable to decisions sent by certified mail. See City of Houston Fire Fighters' v. Morris, 949 S.W.2d 474, 478 (Tex.App.-Houston [14th] 1997, pet. denied). Since the decision in Morris was sent by certified mail, the court did not address the effect of a decision being sent by regular mail as opposed to certified mail.
Standard of Review
We review a trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Tex. Nat. Res. Conserv. Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). When reviewing a ruling on a plea to the jurisdiction, we accept the allegations in the petition as true and construe them in favor of the pleader. Bexar County v. Lopez, 94 S.W.3d 711, 713 (Tex.App.-San Antonio 2002, no pet.). In addition to the pleadings, we may also consider relevant evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). If the evidence creates a question of fact regarding the jurisdictional issue, the plea to the jurisdiction cannot be granted, and the fact issue is left to be resolved by the fact finder. Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004).
Discussion
In order to appeal the hearing examiner's decision, Toliver was required to file his petition in district court within 10 days after the date the final decision: (1) was sent to Toliver by certified mail; or (2) was personally received by Toliver or his designee. See Tex. Loc. Gov't Code Ann. § 143.015 (Vernon 1999). At the hearing on Toliver's motion for new trial, Toliver's attorney brought the February 2, 2002 letter to the trial court's attention, stating:
MR. GALINDO: . . . Judge, the — that's part of the City's sworn answer in which they enclose the letter from the arbitrator or the hearing examiner who is in Weatherford, Texas. The letter is dated February 2nd and the Plaintiff's petition, which is an exhibit attached also to that motion, is filed February the 12th. So we say that we did file the suit timely. I didn't file it originally, it was by other counsel that's since been substituted for, but the issue is you exclude the day that it was mailed and include the last day and that's the 10th day.
The statute says that you have to file within ten days if it's mailed by certified mail. And the courts have held that when you mail by certified mail the day of mailing is the day that counts — or in this case the statute says that if it is not mailed by certified mail, the date received. . . . So whether it was mailed by certified mail or ordinary mail or the date that [sic] received, the fact is the suit was filed within ten days from date of mailing and we submit, Your Honor, that the case was timely filed.
In response to this argument, the City's attorney stated:
MS. NAVA: Well, the first thing, Judge, that letter that he points to is dated February 2nd, 2002. So if you accept the fact, which is true, that 2002 is the wrong year then you must accept the fact that the date is unreliable completely.
Toliver's attorney then responded:
MR. GALINDO: . . . There's no way that you could originate a letter enclosing an opinion a year earlier than before it's rendered. So the dispositive dates are February 2 of 2003 and February 12th of 2003.
The letter, therefore, was before the trial court for its consideration and created a question of fact regarding the jurisdictional issue. If the evidence creates a question of fact regarding the jurisdictional issue, the plea to the jurisdiction cannot be granted. Miranda, 133 S.W.3d 227-28. Accordingly, the trial court erred in granting the City's plea.
Conclusion
The trial court's order is reversed, and the cause is remanded to the trial court for further proceedings.