On appeal, no party contests the district court's determination that the hearing examiner's decision was procurred by unlawful means. See Tex. Loc. Gov't Code Ann. § 143.010(g) (West 2008) (stating that Commission may only consider evidence submitted during hearing when making disciplinary decision); see also Richardson v. City of Pasadena, 513 S.W.2d 1, 4 (Tex. 1974) (concluding that Commission erred by admitting and considering affidavits filed after hearing had concluded); Firemen's Policemen's Civil Serv. Comm'n v. Bonds, 666 S.W.2d 242, 245 (Tex.App.-Houston [14th Dist.] 1984, writ dism'd) (concluding that evidence given to Commission prior to hearing was "illegal"). Rather, in this appeal, Steubing asserts that the district court erred by remanding the case to the examiner instead of ordering her reinstatement.
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.
SeeBexar Cty. Sheriff's Civ. Serv. Comm'n v. Davis , 802 S.W.2d 659, 662-63 (Tex. 1990) (examining sheriff's pre-termination actions); City of San Antonio v. Poulos , 422 S.W.2d 140, 144-45 (Tex. 1967) (when police chief did not comply with procedure to properly charge a violation of a civil service rule, commission's ruling upholding dismissal was arbitrary); City of Carrollton v. Popescu , 806 S.W.2d 268, 272 (Tex. App.—Dallas 1991, no writ) (city failed to perform all conditions precedent to removal of employee); Smith , 552 S.W.2d at 947 ; Cash v. City of Houston , 426 S.W.2d 624, 627 (Tex. App.—Houston [14th Dist.] 1968, writ ref'd n.r.e.) (examining whether acts of fire chief and commission were arbitrary or capricious).SeeFiremen's & Policemen's Civ. Serv. Comm'n v. Kennedy , 514 S.W.2d 237, 240 (Tex. 1974) ; see alsoLong v. Wichita Falls , 749 S.W.2d 268, 271 (Tex. App.—Fort Worth 1988, writ denied) ; Firemen's & Policemen's Civ. Serv. Comm'n v. Bonds , 666 S.W.2d 242, 245 (Tex. App.—Houston [14th Dist.] 1984, writ dism'd) ; Poulos , 422 S.W.2d at 144-45. B. Did the Executive Order require the Medical Review Officer to notify Cortez of his right to a referee test?
Accordingly, when a commission or a hearing examiner has considered evidence obtained outside the hearing, courts have concluded that the resulting order was procured unlawfully. See, e.g., Gish v. City of Austin, No. 03-14-00017-CV, 2016 WL 2907918, at *2-3 (Tex. App.—Austin May 11, 2016, no pet.) (mem. op.) (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); Steubing v. City of Killeen, 298 S.W.3d 673, 674-75 (Tex. App.—Austin 2009, pet. denied) (stating that no party contested the district court's determination that hearing examiner's decision was procured by unlawful means after "the examiner stated that when making his determination, he sua sponte considered various psychological studies and empirical studies that had not been admitted into evidence"); 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) (stating that "[a]ny evidence received outside the bounds set by the statute is illegal, and destroys any presumption that the [c]ommission's order is valid" and holding that even though substantial evidence supported the commission's decision to suspend the officer, the decision must be reversed because the commission considered evidence outside the hearing when the commission was given a packet of materials before the hearing that contained a least one sworn witness statement); cf. Richardson v. City of Pasadena, 513 S.W.2d 1, 3-4 (Tex. 1974) (setting aside commission's ruling after determining that commission's posthearing receipt, reading, and use of three affidavits that "bore directly on the essential fact issue in the case" without notice to the police officer violated the officer's procedural due-process rights). Relying on these cases, the City contends that because the hearing examiner relied on an extraneous source regarding Woods's medications' side effects, her decision
Accordingly, when the commission or a hearing examiner has considered evidence obtained outside the hearing, courts have concluded that this resulted in the order being procured by unlawful means. See, e.g., Gish, 2016 WL 2907918, at *2 (reversing grant of plea to the jurisdiction where hearing examiner considered post-hearing motion that presented facts that may not have been presented in the hearing); Steubing v. City of Killeen, 298 S.W.3d 673, 674-75 (Tex. App.—Austin 2009, pet. denied) (explaining that it was uncontested in the appeal that the commission's decision was procured by unlawful means where a commissioner sua sponte considered psychological and empirical studies outside of the hearing in making his determination); 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.) (holding commission ruling was not "free of the taint of illegality" where commissioner acknowledged he came to hearing with packet of materials relevant to the case). Unlike in the cited cases, however, there is no indication in this record that Helburn considered the documents that were reportedly electronically submitted before the hearing or even was aware that they had been submitted.
The agency's decision must stand unless the evidence as a whole is such that reasonable minds could not have reached the conclusion reached by the agency. Firemen's Policemen's Civil Serv. Comm'n v. Bonds, 666 S.W.2d 242, 244 (Tex.App. — Houston [14th Dist.] 1984, writ dism'd w.o.j.). Although "substantial evidence" is a term of art in the area of review of administrative decisions, the standard has been likened to the "any rational basis" standard in due process analysis where the court ensures that the actions of the school administration were not arbitrary and capricious.
The agency's decision must stand unless the evidence as a whole is such that reasonable minds could not have reached the conclusion reached by the agency. Firemen's and Policemen's Civil Serv. Comm'n v. Bonds, 666 S.W.2d 242, 244 (Tex.App. — Houston [14th Dist.] 1984, writ dism'd w.o.j.). The evidence before the trial court was as follows:
Appellant claims that since the hearing was not free of the taint of illegality, the substantial evidence question is never reached. Appellant cites Firemen's Policemen's Civil Ser. v. Bonds, 666 S.W.2d 242 (Tex.App. — Houston [14th Dist.] 1984, writ dism'd) to support his argument that the inquiry into the taint of illegality is a separate inquiry from that of substantial evidence. While we agree with this contention, we disagree with his contention that the hearing in the instant case was not free of the taint of illegality.