CITY OF WACO, TEXAS, Appellant, v. Louis E. BITTLE, Appellee.
No. 10-03-00098-CV.
Court of Appeals of Texas, Waco.
March 16, 2005.
R. John Cullar, Mills & Cullar, L.L.P., Waco, B. Craig Deats, P.C., Austin, for appellee.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
OPINION
FELIPE REYNA, Justice.
An independent hearing examiner determined that the City of Waco had improperly suspended Louis Bittle from his position as a firefighter and later ordered the City to restore to Bittle the compensation and benefits he lost as a result of the suspension. A dispute arose over the manner in which the City sought to restore Bittle‘s compensation and benefits, and Bittle filed suit. The trial court granted Bittle‘s motion for summary judgment, finding that the City had failed to comply with the hearing examiner‘s decision and with
The city contends in three issues that: (1) a genuine issue of material fact exists on the question of whether the City failed to comply with the hearing examiner‘s decision and with
BACKGROUND
The City indefinitely suspended Bittle for failing a breath-alcohol test given with a promotional exam. At the time of suspension, Bittle had accrued the following hours of leave: 1268.5 sick, 216 vacation, and 48 holiday. The City treated the suspension as a termination and paid him $20,462.23, which was a “cash out” of the following hours of leave: 1080 sick, 216 vacation, and 48 holiday.
Bittle timely appealed the indefinite suspension to an independent, third-party hearing examiner.2 Following a hearing, the hearing examiner issued his decision, which stated in relevant part:
Since the City has not met its burden of establishing that Louis Bittle was under the influence, indefinite suspension is not the appropriate remedy. Mr. Bittle is to be reinstated to the position he held August 31, 2001. He is entitled to a new promotional physical. Then, upon reinstatement on February 15, 2002, he will submit to a physical so the City‘s promotion policies can be complied with, and he can be, upon passing the physical, promoted to lieutenant.
Bittle was reinstated and returned to work. Subsequently he inquired of the City whether he would receive back pay. Because the hearing examiner‘s decision did not mention back pay, the City requested reconsideration/clarification of whether Bittle was entitled to same. The City argued that he was not because (1) the time he was off without pay is the appropriate discipline for failing the breath-alcohol test and for failing to mitigate his damages and (2) there is no evidence in the record upon which to base such an award. The hearing examiner issued the following decision:
Having found that the City failed to meet its burden of proof, we orderеd Mr. Bittle to be reinstated to the position he held August 31, 2001. He is entitled to compensation for the actual time lost as a result of the suspension. He is entitled to the wages he would have earned had he not been improperly suspended. All his rights and benefits are restored. If there is no basis for disciplinary action, there is no basis to treat the period of time it took to reinstate Louis Bittle as time off without pay. He is returned to work with back pay, minus interim earnings.
Award
Mr. Louis Bittle is to be paid all wages and benefits due from September 5, 2001, to his reinstatement on February 15, 2002, minus interim earnings.3
Bittle then sent a writtеn demand to the City to comply with
If the suspended fire fighter or police officer is restored to the position or class of service from which the person was suspended, the fire fighter or police officer is entitled to:
- (1) full compensation for the actual time lost as a result of the suspension at the rate of pay provided for the position or class of service from which the person was suspended; and
- (2) restoration of or credit for any other benefits lost as a result of the suspension, including sick leave, vacation leave, and service crеdit in a retirement system.
When Bittle did not receive the back pay he demanded, he filed suit alleging:
- (1) The decision of the hearing examiner is final and binding on all parties.
- (2) Defendant has failed to comply with the final decision of the hearing examiner and Texas Local Government Code § 143.053(f).
- (3) Plaintiff is entitled to mandamus relief requiring the City to (1) pay him “full compensation for the actual time lost as a result of the suspension,” and (2) restore and give credit for the sick leave, vacation leave, and holiday leave lost as a result of the suspension, pursuant to Texas Local Government Code § 143.053(f).
The City asserted a plea to the jurisdiction in its original answer contending that Bittle failed to exhaust his administrative remedies. In an amended answer, the City raised the issue of governmental immunity and filed a countersuit seeking (1) a declaration that
The summary judgment granted in favor of Bittle states in relevant part:
IT IS FURTHER ORDERED, ADJUDGED AND DECLARED that the January 28, 2002, decision of the heаring examiner is final and binding on all parties.
IT IS FURTHER ORDERED, ADJUDGED AND DECLARED that Defendant has failed to comply with the final decision of the hearing examiner and Texas Local Government Code § 143.053(f).
IT IS FURTHER ORDERED, ADJUDGED AND DECLARED that Plaintiff is entitled to mandamus relief requiring the City to (1) pay him “full compensation for the actual time lost as a result of the suspension” (in the total sum of $19,914.56), and (2) restore and give credit to Plaintiff for sick leave, vacation leave, and holiday leave lost as a result of the suspension (263.5 hours of sick leave4, 75 hours of vacation leave, and 48 hours of holiday leave), pursuant to Texas Local Government Code § 143.053(f), for which a writ of mandamus shall be issued by the Clerk of the Court to be served on Defendant.5
...
All relief requested in this case and not expressly granted is denied. This judgment finally disposes of all parties and claims and is appealable.
JURISDICTION
The City contends in its first issue that the trial court did not have jurisdiction to entertain Bittle‘s suit because governmental6 immunity bars the suit and Bittle failed to exhaust his administrative remedies. However, because Bittle‘s suit for declaratory relief does not seek to impose liability on the City and because Bittle exhausted all available administrative remedies, the City‘s immunity is not implicаted, and the trial court had jurisdiction.
Suit for Declaratory Judgment
The
Private parties may seek declaratory relief against state officials who allegedly act without legal or statutory authority. This is because suits to compel state officers to act within their official capacity do not attempt to subject the State to liability. Therefore, certain declaratory-judgment аctions against state officials
do not implicate the sovereign-immunity doctrine.
Tex. Nat. Resource Conservation Commn. v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002) (plurality) (citations omitted).
In contrast, declaratory-judgment suits against state officials seeking to establish a contract‘s validity, to enforce performance under a contract, or to impose contractual liabilities are suits against the State. That is because such suits attempt to control state action by imposing liability on the State. Consequently, such suits cannot be maintained without legislative permission. And, private parties cannot circumvent the State‘s sovereign immunity from suit by characterizing a suit for money damages, such as a contract dispute, as a declaratory-judgment claim. Id. at 855-56 (citations omitted).
These same principles apply to declaratory judgment actions brought against municipalities. See Tex. Mun. Power Agency v. Pub. Util. Commn., 100 S.W.3d 510, 515-17 (Tex. App.—Austin 2003, pet. denied);7 City of San Benito v. Ebarb, 88 S.W.3d 711, 721-22 (Tex. App.—Corpus Christi 2002, pet. denied).
The City contends that, because Bittle‘s suit seeks restoration of compensation lost as a result of his suspension, the suit is one for money damages. Applying this characterization, the City posits that under the rule of IT-Davy the City‘s immunity from suit is not waived by the Uniform Declaratory Judgments Act. See IT-Davy, 74 S.W.3d at 855-56; Ebarb, 88 S.W.3d at 722-24. We disagree with the City‘s characterization of Bittle‘s suit.
When a jurisdictional challenge is raised regarding thе allegations of a plaintiff‘s pleadings, “[w]e construe the pleadings liberally in favor of the plaintiff[ ] and look to the pleader[‘s] intent.” Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Here, Bittle requests in his second amended petition that the trial court make a declaration of his rights with respect to
Liberally construing these allegations in Bittle‘s favor, we construe them to seek (1) declaratory relief regarding whether the City has complied with
The City argues that Ebarb controls. We disagree. Ebarb is distinguishable because the plaintiffs in that case did not join a request for mandamus relief with their petition for declaratory relief. In addition, they “did not argue that they were not seeking money damages but instead stoutly asserted that sovereign immunity for municipalities was waived by the UDJA.” Ebarb, 88 S.W.3d at 723.
Accordingly, we conclude that immunity from suit does not pose a bar to Bittle‘s petition for declaratory relief because he seeks thereby to compel the City tо comply with the requirements of
Suit for Mandamus Relief
Bittle also seeks a writ of mandamus compelling the City to comply with
The City affirmatively recognizes in its reply brief that “[a] district court has authority to issue a writ of mandamus to compel a public official to perform a ministerial act.” The authority of district courts to issues writs of mandamus against municipalities has been regularly upheld on this basis. See e.g. Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991); Guthery v. Taylor, 112 S.W.3d 715, 720 (Tex. App.—Houston [14th Dist.] 2003, no pet.);8 City of Corpus Christi v. Unitarian Church of Corpus Christi, 436 S.W.2d 923, 927 (Tex. Civ. App.—Corpus Christi 1968, writ ref‘d n.r.e.); see also
Exhaustion of Remedies
The City next contends that the trial court lacked jurisdiction because Bittle failed to exhaust his administrative remedies. Under the City‘s theory, Bittle should have filed another administrative complaint with the civil service commission raising the issue of the City‘s compliance with
Under
“An agency has exclusive jurisdiction ‘when a pervasive regulatory scheme indicates that [the Legislature] intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed.‘”
The judicially-created primary jurisdiction doctrine operates to allocate power between courts and agencies when both have authority to make initial determinations in a dispute. Trial courts should allow an administrative agency to initially decide an issue when: (1) an agency is typically staffed with experts trained in handling the complex problems in the agency‘s purview; and (2) great benеfit is derived from an agency‘s uniformly interpreting its laws, rules, and regulations, whereas courts and juries may reach different results under similar fact situations. Subaru of Am., 84 S.W.3d at 221 (citations omitted).
The issue of whether an administrative agency has exclusive or primary jurisdiction involves statutory construction and is a question of law which an appellate court reviews de novo. Id. at 222. Accordingly, we address in turn whether the provisions of
Texas courts have historically found that
- (1) whether a department head‘s recommendation to demote a firefighter or police officer should be granted;
TEX. LOC. GOV‘T CODE ANN. § 143.054 (Vernon 1999); and - (2) whether a firefighter or police officer “indicted for a felony or officially charged with the commission of a Class A or B misdemeanor” should be suspended for civil service violations directly related to the allegations of the indictment or complaint;
Id. § 143.056(c) ,(d) (Vernon 1999).
Conversely, a commission has “appellate jurisdiction” under
- (1) a firefighter‘s or police officer‘s challenge to a promotional examination;
Id. § 143.034 (Vernon 1999); - (2) an allegation оf irregularities in an election to adopt an alternate promotional system in a police depart-
ment;
Id. § 143.035(g) (Vernon 1999);
- (3) the propriety of a disciplinary suspension;
Id. § 143.053 (Vernon Supp. 2004-2005); and - (4) whether to award back pay for a temporary suspension based on a firefighter or police officer having been “indicted for a felony or officially charged with the commission of a Class A or B misdemeanor,” where the firefighter or police officer “is not found guilty of the indictment or complaint in a court of competent jurisdiction“;
Id. § 143.056(e) (Vernon 1999).
Because of the nature of the limited jurisdiction possessed by administrative bodies, courts have found that a сivil service commission does not have jurisdiction to address other issues. See e.g. City of Austin v. Phipps, 162 Tex. 112, 344 S.W.2d 673, 674-75 (1961) (commission not authorized to determine firefighter‘s right to injury leave of absence); Stauffer, 344 S.W.2d at 159-60 (commission not authorized to determine whether firefighter who had returned from military leave was entitled to reinstatement); Cantu, 97 S.W.3d at 863 (commission not authorized to determine effectiveness of firefighter‘s resignation); Perez v. City of Laredo, 21 S.W.3d 371, 373-74 (Tex. App.—San Antonio 2000, no pet.) (commission not authorized to determine promotion eligibility based on 2-year service requirement of
Consistent with these authorities, the cоmmission has exclusive jurisdiction only to conduct hearings or appeals regarding the six issues enumerated hereinabove. Stated another way, these six issues are the only ones for which
Here, Bittle‘s suit seeks to compel the City to comply with the hearing examiner‘s order and with
According to
Rather, the sole issue to be decided in an appeal under
Because subsection (f) does not authorize the commission to determine these issues, the commission does not have primary jurisdiction either. See Subaru of Am., 84 S.W.3d at 221 (primary jurisdiction must be determined when “courts and agencies ... both have authority to make initial determinations in a dispute“).
Therefore, if a municipality fails to restore the compensation and benefits required by subsection (f), a firefighter or police officer may seek relief in the courts. Accordingly, we conclude that Bittle did not need to seek further administrative relief before filing this suit. Thus, we overrule the City‘s third issue.
COMPLIANCE WITH THE HEARING EXAMINER‘S DECISION
The City contends in its first issue that a genuine issue of material fact exists on the question of whether it has failed to comply with subsection (f) (and the hearing examiner‘s order). Bittle argued in his summary judgment motion that the City‘s failure to pay him the amount of compensation due under subsection (f) conclusively established the City‘s non-compliance. The City responded that, after offsets are allowed for the benefits payment the City made to Bittle after he was suspended and for Bittle‘s interim earnings from other sources, Bittle actually owes the City almost $3,100.
The parties do not dispute that Bittle would have earned $19,914.56 had he not been suspended. The dispute centers on
The purpose of subsection (f) is to restore a firefighter or police officer who has been improperly suspended to the position he would have occupied had the suspension not occurred. Thus, a firefighter or police officer who has been reinstated is entitled to: (1) “full compensation for the actual time lost as a result of the suspension“; and (2) “restoration of or credit for any other benefits lost as a result of the suspension.”
Bittle contends that he did not lose the leave hours for which the City paid him because the City voluntarily chose to convert those hours to cash. He suggests that there is no prohibition against the City taking this action, citing Willis v. City of Lubbock, 385 S.W.2d 617 (Tex. Civ. App.—Amarillo 1964, writ ref‘d n.r.e.). In that case, a City of Lubbock policy provided that employees leaving the classified service should be paid for their accumulated vacation leave hours. The Amarillo court noted that the pertinent civil service statutes did not provide for this type of payment to an еmployee leaving the classified service and that the city‘s policy was one which the city “voluntarily adopted.” Id. at 618 (citing Act of May 23, 1957, 55th Leg., R.S., ch. 391, § 7, 1957 Tex. Gen. Laws 1171, 1175-76 (repealed 1987)) (current version at
However, the Amarillo court also noted that the pertinent statutes do have express provisions regarding payment for accumulated sick leave hours. Id. (citing Act of May 23, 1957, 55th Leg., R.S., ch. 391, § 6, 1957 Tex. Gen. Laws 1171, 1175 (repealed 1987) (current version at
True, this prohibition applies to only accumulated sick leave hours and not to accumulated vacation or holiday leave hours. However, to ensure a uniform and predictable application of
Therefore, to comply with
Conversely, to comply with
Because the City has paid Bittle more than he is owed for lost compensation, Bittle failed to conclusively establish the City‘s non-compliance with subsection (f) (and the hearing examiner‘s order). Accordingly, we sustain the City‘s first issue.
We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.
Chief Justice GRAY concurring.
TOM GRAY, Chief Justice concurring.
In the past we have had so few opinions withdrawn that no particular problems were created if the opinions were withdrawn by an order separate from the new opinions being issued. The problem is that over the past year we have withdrawn numerous opinions, with and without motions for rehearing, and when on motion for rehearing, with and without requesting responses. Issuing multiple opinions in the same appeal creates confusion. A person can hold in their hands two opinions from this Court, both certified by the clerk as authentic, which are not the same. Our past practice has been that the latter normally does not reference the existence of the earlier opinion that is being withdrawn.
Our past practice did not present a problem when the issuance of another opinion in the same case was rarely done. At least the problem was manageable. But due to the greatly increased frequency of the majority issuing multiple opinions, I thought it was an appropriate time to adopt the procedure utilized by the Texas Supremе Court; to include the order, and explanation if needed, withdrawing the prior opinion as the first paragraph of the new opinion. See e.g., Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 381 (Tex. 2000).
This is a simple procedure for the convenience of anyone reading the opinions to understand, and easily determine which opinion is the Court‘s final opinion. This process also allows a researcher, interested in the ultimate disposition, to easily track backwards, if necessary, to see the development of the final opinion. Because the majority refuses to provide that information in its opinion, I do so in this сoncurring opinion.
PRIOR HISTORY OF THIS APPEAL
Appellee‘s Motion for rehearing is granted. The Court‘s opinion vacating the trial court‘s judgment and dismissing the case for want of jurisdiction, and Chief Justice Gray‘s dissenting opinion, all dated November 10, 2004, are withdrawn and the Court‘s opinion, Chief Justice Gray‘s concurring opinion, and the judgment of this date are substituted therefore.
CONCLUSION
With these comments regarding the history of this appeal, I concur in the Court‘s new opinion.
Appellees’ claims against Landry and Builders Transport are significantly interwoven. So that a jury on remand will be able to apportion responsibility among all parties, we will reverse the judgment in its entirety and remand this cause to the trial court for further proceedings consistent with the opinion of this Court. See Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 166 (Tex. 1982); First Natl. Acceptance Co. v. Dixon, 154 S.W.3d 218, 225 (Tex. App.—Beaumont 2004, pet. denied).
Builders Transport‘s further motion for rehearing is granted. The judgment of this Court dated March 9, 2005 is withdrawn, and the judgment of even date herewith is substituted therefor.
Chief Justice GRAY dissenting.
TOM GRAY, Chief Justice, dissenting on rehearing.
Nothing about the Opinion on Rehearing issued today alters the analysis of my dissenting opinion of March 9, 2005. That dissenting opinion hаs not been withdrawn. Therefore, the dissenting opinion applies with equal force to the judgment issued today.1
FELIPE REYNA
JUSTICE
Notes
- 1. The court of appeals erred by holding that Sheriff Thomas could not appeal the interlocutory denial of his jurisdictional challenge under
§ 51.014(a)(8) simply because he raised it in a motion for summary judgment over the appeal in contravention of other appellate courts’ clear precedents. - 2. The court of appeals incorrectly held, in dictum, that the jurisdiction of a civil service commission was primary as opposed to exclusive.