Jefferson County Constables Association v. Jefferson County, Texas ( 2015 )

ACCEPTED
13-14-00188-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
10/28/2015 9:45:49 AM
Dorian E. Ramirez
CLERK
NO. 13-14-00188-CV
_____________________________________________________________
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
IN THE COURT OF APPEALS 10/28/2015 9:45:49 AM
13TH DISTRICT OF TEXAS DORIAN E. RAMIREZ
at CORPUS CHRISTI, TEXAS Clerk
_____________________________________________________________
JEFFERSON COUNTY CONSTABLES ASSOCIATION, Appellant
VS.
JEFFERSON COUNTY, TEXAS, Appellees
On Appeal from the 60th Judicial District Court, Jefferson County, Texas
Trial Court Cause No. B-191,390
_____________________________________________________________
APPELLANT’S REPLY BRIEF TO
APPELLEE’S SUPPLEMENTAL BRIEF
_____________________________________________________________
BRADLEY, STEELE & PIERCE L.L.P.
Lance P. Bradley
State Bar No. 02826650
3120 Central Mall Drive
Port Arthur, Texas 77642
(409) 724-6644 –Telephone
(409) 724-7585 –Telecopier
lbradley@bradlaw.net –Email
Counsel for Jefferson County Constables Association
1
Identity of Parties and Counsel
Appellant: Appellant/Defendant’s Appellate
Counsel:
Jefferson County Constables Lance P. Bradley
Association State Bar No. 02826650
Bradley, Steele & Pierce, LLP
3120 Central Mall Drive
Port Arthur, Texas 77642
(409) 724-6644 –Telephone
(409) 724-7585 –Telecopier
Email: lbradley@bradlaw.net
Appellee/Plaintiff: Appellee/Plaintiffs’ Appellate
Counsel:
Jefferson County, Texas Phillip Babin
Kathleen Kennedy
Assistant District Attorneys of
Jefferson County, Texas
1001 Pearl Street
Beaumont, Texas 77710
(409) 835-8550 –Telephone
(409) 784-5893 –Telecopier
2
TABLE OF CONTENTS
IDENTITY OF PARTIES 2
TABLE OF CONTENTS 3
TABLE OF AUTHORITIES 4
SUPPLEMENTAL STATEMENT OF THE CASE, 6
FACTS, AND SUMMARY OF THE ARGUMENT
SUPPLEMENTAL ARGUMENT 6
THIS COURT SHOULD NOT CONSIDER APPELLEE’S 7
SUPPLEMENTAL BRIEF BECAUSE IT RAISES FOR
THE FIRST TIME AN ISSUE IT FAILED TO RAISE
BEFORE THE ARBITRATOR, THE TRIAL COURT, AND
IN ITS INTIAL BRIEF
APPELLEE HAD AUTHORITY TO ENTER INTO THE 10
COLLECTIVE BARGAINING AGREEMENT WITH
APPELLANT DEPUTY CONSTABLES ASSOCIATION
CONCLUSION 15
3
TABLE OF AUTHORITIES
Constitution
Tex. Const. Art. V, Sections 18 and 24………………………………….14
Statutes
Local Gov’t Code, Chapter 174………………………………………….10
Tex. Local Gov’t Code Section 86.021……………………………………… ….14
Cases
Bomer v. Ector County Comm’rs Court, 676 S.W.2d 662 (Tex. App.
8th Dist. – El Paso 1984)………………………………………………………………14
Campbell v. State, 85 S.W.3d 176, 184-185 (Texas 2002)…..…………….7
City of San Antonio v. San Antonio Park Rangers Ass’n, 850 S.W.2d 189
(Tex. App. – San Antonio 1992, writ denied)………………………...11,14
Commissioners’ Court of El Paso County v. El Paso County Sheriff’s
Deputies Assoc., 620 S.W.2d 900 (Tex. App. 8th Dist. El Paso 1981……12
Flack-Batie v. Cimmarron, 2013 Tex. App. LEXIS 1073 2013 WL
485750 (Tex. App. 5th Dist. – Dallas, Feb. 6, 2013)……………………..7
In re El Paso County Comm’rs Court, 281 S.W.3d 16, 22 (Tex. App. 8th
Dist – El Paso 2005)................................................................................. 9,14
Merritt v. Harris County, 775 S.W.2d 17, 23 (Tex. App. 14th Dist. –
Houston 1989)…………………………………………………………….14
Schwenke v. State, 960 S.W.2d 227 (Tex. App. 13th Dist. – Corpus
Christi 1997)………………………………………………………………13
4
Webb County v. Webb County Deputies Assoc., 768 S.W.2d 953 (Tex.
App. 4th Dist. – San Antonio 1989)........................................................13,14
Wolff v. Deputy Constables Association of Bexar County, 441 S.W.3d 362
(Tex. App. 4th Dist. – San Antonio 2013)…………….......6, 7, 9, 10, 11, 13
5
SUPPLEMENTAL STATEMENT OF THE CASE, FACTS, AND SUMMARY
OF THE ARGUMENT
Appellant adopts its previously filed briefs except to show that the
issues raised in Appellee’s supplemental Brief are untimely and without
merit. Appellee Jefferson County had legal authority to enter into the
subject collective bargaining agreement. Consequently, appellants have
standing to collectively bargain and the arbitrator had jurisdiction to
render an opinion on the application of the collective bargaining
agreement.
SUPPLEMENTAL ARGUMENT
Appellant addresses herein solely the Supplemental Brief filed by
Appellee Jefferson County that raises for the first time (not before the
arbitrator, not in the trial court, and not in its initial Brief) the question
of the county’s authority to enter into a collective bargaining agreement.
It does this now even though it had voluntarily negotiated with
appellant and then acted for four years under the subject collective
bargaining agreement. This is far too late a time to raise this issue.
In any event, Wolff v. Deputy Constables Association of Bexar
County, 441 S.W.3d 362 (Tex. App. 4th Dist. – San Antonio 2013), the
case appellee now relies upon for the first time, was wrongly decided
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and distorts the meaning and intent of Local Gov’t Code Sections
174.003 and 174.023. Deputy constables clearly are “police officers”
within the meaning of Section 174.023 entitled to collective bargaining.
THIS COURT SHOULD NOT CONSIDER APPELLEE’S SUPPLEMENTAL
BRIEF BECAUSE IT RAISES FOR THE FIRST TIME AN ISSUE IT
FAILED TO RAISE BEFORE THE ARBITRATOR, THE TRIAL COURT,
AND IN ITS INITIAL BRIEF.
Wolff v. Deputy Constables Association of Bexar County, 441 S.W.3d
362 (Tex. App. 4th Dist. – San Antonio 2013), was decided in 2013, prior
to the trial court’s decision in this case and prior to appellee’s initial
brief. Yet appellee never raised the issue of its authority to enter into
the collective bargaining agreement before the arbitrator, in the trial
court, or in its initial brief.
Appellee offers no good cause for raising this issue at this late
date in a supplemental brief in this court. Nor does appellee explain
how it avoids the dictates of Appellate Rule 33 which provides that an
issue must first be raised in the trial court before it can be brought to
the Court of Appeals. See Campbell v. State, 85 S.W.3d 176, 184-185
(Texas 2002). The law is clear that “Additional issues raised only in a
reply brief or post-submission brief will not be considered because they
are untimely.” Flack-Batie v. Cimmarron, 2013 Tex. App. LEXIS 1073,
7
2013 WL 485750 (Tex. App. 5th dist. – Dallas, Feb. 6, 2013) (submission
of supplemental brief denied where it raised new issues).
Appellee improperly casts its new issue as a question of
appellant’s lack of standing to bargain collectively and the arbitrator’s
supposed lack of jurisdiction to render any decision. Yet appellee is
actually challenging its own right to voluntarily enter into the collective
bargaining agreement that is the subject of this action; the agreement
that appellee first negotiated and then acted under for four (4) years
from October of 2007 through September of 2011.
This is not an issue of standing or jurisdiction. Rather, it is
whether appellee can at this late date claim that four years of collective
bargaining was void ab initio. Appellee offers no basis for this Court to
hold that appellee could under no circumstances have entered into the
collective bargaining agreement. While Section 174.023 gives “police
officers” the right to bargain collectively with their political subdivision,
nothing in that section or any other law would prevent a county from
choosing on its own to collectively bargain with its deputy constables.
Appellee fails to address its implied authority and inherent power to
contract to accomplish legitimate purposes.
8
In In re El Paso County Comm’rs Court, 281 S.W.3d 16, 22 (Tex.
App. 8th dist. – El Paso 2005), the court addressed the powers of a
county commissioners court:
The Texas constitution provides that the commissioners
court “shall exercise such powers and jurisdiction over all
county business as is conferred by this Constitution and the
laws of the State, or as may be hereafter prescribed” …Thus,
the Texas Constitution establishes the Commissioners Court
as the county’s principal governing body…The powers and
duties of the Commissioners Courts include aspects of
legislative, executive, administrative, and judicial
functions…In the exercise of its powers and jurisdiction
over county business, the commissioners court has implied
authority to exercise broad discretion to accomplish the
purposes intended….”
Under these circumstances, this court need not even consider the
issue first raised in appellee’s Supplemental Brief. However, if this court
decides to address the issue of the county’s authority to enter into a
collective bargaining agreement with the county’s deputy constables
under Section 174.023, then it will become evident that appellee’s
reliance on Wolff v. Deputy Constables Association of Bexar County, 441
S.W.3d 362 (Tex. App. 4th Dist. – San Antonio 2013), is misplaced
because that ruling was simply wrong.
9
APPELLEE HAD AUTHORITY TO ENTER INTO THE
COLLECTIVE BARGAINING AGREEMENT WITH APPELLANT DEPUTY
CONSTABLES ASSOCIATION
Appellee’s Supplemental Brief focuses solely on the decision in
Wolff v. Deputy Constables Association of Bexar County, 441 S.W.3d 362
(Tex. App. 4th Dist. – San Antonio 2013). Appellee now argues, based
upon Wolff, that “only firemen and city policemen” are entitled to
collective bargaining under the Local Gov’t Code, Chapter 174. Thus, it
is now appellee’s position that because deputy constables supposedly
do not meet the definition of “police officer” (because they do not serve
in a “police department”), the collective bargaining agreement between
appellee and appellant is void and unenforceable. The Fourth District
erred in its analysis in Wolff and appellee’s argument is equally flawed.
Wolff v. Deputy Constables Association of Bexar County recognized
that under Section 174.023 of the Texas Local Government Code, “police
officers” in a political subdivision that have adopted Chapter 174 have
the right to organize and bargain collectively. The court then focused on
the definition of “police officer” under Section 174.003(3). That Section
defines “police officer” as “a paid employee who is sworn, certified, and
full-time, and who regularly serves in a professional law enforcement
capacity in the police department of a political subdivision.”
10
The Wolff court found that deputy constables meet all of the
requirements of Section 174.003(3) except that they do not work in a
“police department.” The court found that a Constables Office is not a
“police department” within the meaning of Section 174.003. Noting that
a Sheriff’s Office is deemed a “police department” while a Parks
Department that employs park rangers is not, the court held that while
deputy constables serve in law enforcement, they do not serve in a
“police department” and thus cannot be deemed police officers. In other
words, Wolff found that a Constables Office is more akin to a Parks
Department than a Sheriff’s Office. This is wrong.
The error in Wolff can be found in the court’s reliance on City of
San Antonio v. San Antonio Park Rangers Ass’n, 850 S.W.sd 189 (Tex.
App. – San Antonio 1992, writ denied). The court there found “the
Texas legislature limited this bill to include only firemen and city
policemen instead of all protective service employees.” 850 S.W.2d at
192 (emphasis supplied). Thus, the San Antonio court’s interpretation
of Section 174.003 would lead to the conclusion that not even County
Sheriff’s Offices would be covered.
The concurring opinion in City of San Antonio succinctly stated the
Act would not include “any other law enforcement personnel outside of
11
a city’s police department.” 850 S.W.2d at 193 (emphasis supplied).
But we know from Commissioners’ Court of El Paso County v. El Paso
County Sheriff’s Deputies Assoc., 620 S.W.2d 900 (Tex. App. 8th Dist. El
Paso 1981), that deputy sheriffs are deemed “police officers” and a
Sheriff’s Office is deemed a “police department” for purposes of Sections
174.023 and 174.003.
Clearly, the definition of “police department” as used in Section
174.003(3) is broader than the simple wording used in the statute. That
is why sheriff’s offices have been deemed “police departments.” A
proper analysis of Chapter 174 leads to the conclusion that deputy
constables are “police officers” serving in a “police department” within
the meaning of Section 174.003 and thus have the right to collectively
bargain under Section 174.023.
As the court noted in Commissioners’ Court of El Paso County v. El
Paso County Sheriff’s Deputies Assoc., supra, it is necessary to ascertain
the legislative intent behind Chapter 174 by looking at the entire Act
and not isolated provisions. 620 S.W.2d at 900. Further, the Act by its
own terms must be given a liberal construction. 620 S.W.2d at 902.
The court found that the legislative intent had been the protection
of public health, safety and welfare by permitting collective bargaining
12
in lieu of strikes, lockouts or work stoppages. The court also found “The
existing evil and the remedy provided apply to deputy sheriffs as well as
other “policemen.” The court then concluded: “deputy sheriffs and their
public employer, counties, are included and covered by the Act.” 620
S.W.2d at 902. See also Webb County v. Webb County Deputies Assoc.,
768 S.W.2d 953 (Tex. App. 4th Dist. – San Antonio 1989), finding that
jailers and detention officers in a sheriff’s office fall under Section
174.023.
The same reasoning applies to Deputy Constables. Section
174.003(3) defines “Police Officer” as (1) a paid employee (2) who is
sworn, (3) certified, (4) full-time, and who serves in a professional law
enforcement capacity in the police department of a political subdivision.
There is no dispute Deputy Constables are paid employees who are
sworn, full-time employees. They are also certified law enforcement
officers, as even Wolff acknowledges. 441 S.W.3d at 366. Similarly,
Schwenke v. State, 960 S.W.2d 227 (Tex. App. 13th Dist. – Corpus Christi
1997), recognized that a constable must obtain certification as a law
enforcement officer. Section 86.011 in fact provides that “Each deputy
constable must qualify in the manner provided for deputy sheriffs.”
13
The only question then is whether a Constable’s Office is more
akin to a Sheriff’s Office (which El Paso and Webb found to be a “police
department”) or a Parks Department (which San Antonio found is not a
“police department”). A County Constable’s Office is a constitutional
creation and the County Constable is a Constitutional Officer. See Tex.
Const. Art. V, Sections 18 and 24. The head of a Parks Department, on
the other hand, serves under the direction of a city manager (who
certainly is not a law enforcement officer) and others. 850 S.W.2d at
191. A Constable’s Office has countywide jurisdiction and Deputy
Constables have the authority “to serve process, make arrests, and carry
out the duties of a peace officer throughout the entire county.” Merritt v.
Harris County, 775 S.W.2d 17, 23 (Tex. App. 14th Dist. – Houston 1989);
Tex. Local Gov’t Code Section 86.021. A Parks Department’s jurisdiction
is limited to the city parks and appurtenant areas and facilities. 850
S.W.2d at 191. Finally, while a park ranger clearly lacks the authority to
perform the duties of a deputy constable, a deputy sheriff can perform
those same functions. See Bomer v. Ector County Comm’rs Court, 676
S.W.2d 662 (Tex. App. 8th dist. – El Paso 1984).
Simply applying the liberal construction required by Chapter 174
(See Section 174.004), and considering the legislative intent to prevent
14
strikes, lockouts, and work stoppages by law enforcement officers in
order to protect the public health, safety and welfare, it only makes
sense to include deputy constables among the “police officers’ entitled
to collective bargaining.
Once it is recognized that deputy constables are police officers
within the meaning of Section 174.003 and 174.023, then appellants
here clearly have standing to pursue their claims. Here, appellants
simply believe the court below erred by confusing the city’s right to lay
off or abolish positions as distinct from who is laid off or whose position
is abolished. The latter is the issue here and clearly falls within the
terms of the collective bargaining agreement.
CONCLUSION
Deputy Constables are clearly “police” officers within the meaning
of Sections 174.003 and 174.023 entitled to bargain collectively.
For the above reasons, Appellant requests that this Court reverse
and render judgment for Appellant, Jefferson County Constables
Association and any and all relief to which Appellant may be justly
entitled.
15
Respectfully submitted,
BRADLEY, STEELE & PIERCE,
L.L.P.
3120 Central Mall Drive
Port Arthur, Texas 77642
(409) 724-6644 TELEPHONE
(409) 724-7585 FACSIMILE
Email: lbradley@bradlaw.net
By: /S/ Lance P. Bradley
LANCE P. BRADLEY
State Bar No. 02826650
Attorneys for Appellant
RULE 9.4 (i) CERTIFICATION
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I
certify that the number of words in this reply brief, excluding those matters
listed in Rule 9.4(i)(1), is 2,034.
/S/ Lance P. Bradley
LANCE P. BRADLEY
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CERTIFICATE OF SERVICE
Pursuant to Tex. R. App. P. 9.5, I certify that a true and correct copy
of the foregoing Appellant’s Reply Brief to Appellee’s Supplemental Brief
has been forwarded on this 28th day of October, 2015, to the following:
Phillip Babin [ ] via certified mail, return receipt
Kathleen Kennedy requested
Assistant District Attorneys [ ] via hand delivery
District Attorney’s Office [ ] via regular USPS mail
1001 Pearl Street [ ] via overnight delivery
Beaumont, Texas 77701 [x] via telecopier
Telecopier- (409) 784-5893 [x] via EFile
/s/ Lance P. Bradley
LANCE P. BRADLEY
17