Because we conclude that the Civil Service Act and the subsequent amendments control, we agree with the court of appeals' holding that subsection 143.057(d) governs Lubbock's civil service disciplinary matters. 972 S.W.2d 729 (Tex. 1998). Tex. Loc. Gov't Code 143.001-.143.
If possible, we interpret a statute in a manner that renders it constitutional. See Quick v. City of Austin, 7 S.W.3d 109, 115 (Tex. 1999); Proctor v. Andrews, 972 S.W.2d 729, 735 (Tex. 1998). In a facial challenge to a statute's constitutionality, we consider the statute as written, rather than as it operates in practice.
All eight factors must be considered when reviewing the delegation, and no one factor is necessarily determinative. See Proctor v. Andrews, 972 S.W.2d 729, 735 (Tex. 1998). Furthermore, we must, if possible, interpret the language of the statute in a manner that renders it constitutional.
We respectfully decline to do so because neither appellant argues that Houston's status as a municipal corporation affected the nature of its right. And we are not required to address it because the rule announced in these cases does not necessarily implicate standing. SeeWilson v. Andrews , 10 S.W.3d 663, 669 (Tex. 1999) (repudiating dicta in Proctor v. Andrews , 972 S.W.2d 729, 734 (Tex. 1998), which had agreed with court of appeals that city lacked standing to raise due process and equal protection challenges because municipalities do not enjoy due process rights); Stop the Ordinances Please v. City of New Braunfels , 306 S.W.3d 919, 929 (Tex. App.—Austin 2010, no pet.) (noting that "plaintiff is not required to allege the deprivation of a ‘vested right’ constituting a due-process violation to demonstrate the requisite infringement of a ‘legally protected interest’ "). Instead, we evaluate the case as it has been presented to us by the parties.
Again, the State asserts no such statute here. See TEX. CONST, art. XI, § 5; Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998) (citing Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975)).Proctor, 972 S.W.2d at 733.
But as the Supreme Court of Texas has explained, a complaint of impermissible private delegation is not an alleged violation of Article II, Section 1 of the Texas Constitution. See Proctor v. Andrews, 972 S.W.2d 729, 732-33 (Tex. 1998) ("[W]e note that all parties erroneously rely on Article II, Section I of the Texas Constitution as the source for the constitutional prohibition of delegations of legislative authority to private entities."). Instead, "the constitutional provision that would be violated by an impermissible delegation is [a]rticle III, Section 1," see id. at 733, which provides that "[t]he Legislative power of this State shall be vested in a Senate and House of Representatives," see Tex. Const. art. III, § 1. Where a litigant erroneously brings a private-delegation complaint under Article II, Section 1, courts are to analyze the claim as though it had been properly pleaded under the correct constitutional provision.
As such, it derives its powers not from the legislature, but from the Texas Constitution. See Tex. Const. art. XI, § 5; Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998). A home rule city has all the powers of the state not inconsistent with the Texas Constitution, the general laws, or the city's charter.
Id. § 143.057.See Proctor v. Andrews, 972 S.W.2d 729, 736 (Tex. 1998) ("It is likely a perception of bias in favor of the City, on the part of the Civil Service Commission, that prompts officers to request that their appeal be heard under section 143.057 [by an independent hearing examiner]."). Amicus curiae, the Texas State Association of Fire Fighters, confirms that fire fighters have a "strong desire . . . to appeal . . . to independent hearing examiners . . . rather than to civil service commissions whose members are appointed solely by the cities' chief executives."
According to the City, construing the statutory scheme to foreclose any right of appeal would indicate an unconstitutional delegation of legislative authority. See, e.g., Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 472 (Tex. 1997) (designating eight factors to consider in determining whether a delegation of legislative power is constitutional, including whether a private examiner's decision is subject to meaningful review); see also Proctor v. Andrews, 972 S.W.2d 729, 735 (Tex. 1998) (holding that the Legislature can delegate authority to private entities if there is protection against the arbitrary exercise of power). The City further claims the hearing examiner in this case exceeded his jurisdiction by, in effect, issuing a declaratory judgment that an acting fire chief must be appointed by the Mayor and confirmed by the City Council in order to suspend fire department personnel under Section 143.117 of the Code.
The Legislature may delegate its powers to administrative agencies established to carry out legislative purposes as long as the Legislature establishes reasonable standards to guide the agencies in exercising those powers. FM Props., 22 S.W.3d at 873; Proctor v. Andrews, 972 S.W.2d 729, 734 (Tex. 1998) ; Boll Weevil, 952 S.W.2d at 467; Lone Star Gas, 844 S.W.2d at 689. Likewise, the Legislature may delegate its powers to private entities "`if the legislative purpose is discernible and there is protection against the arbitrary exercise of power.'"