in Re Mark McWhorter ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00428-CV

In re Mark McWhorter

Original Proceeding

MEMORANDUM  Opinion

          In lieu of a response on the merits to the mandamus petition in this cause, the Real Party in Interest has filed a “motion” to dismiss the petition as moot.  We will construe this “motion” as a response to the petition and dismiss the petition as requested by the Real Party in Interest.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the judgment without a separate opinion.  He does not concur in the opinion.)

Petition dismissed

Opinion delivered and filed January 18, 2006

[OT06]

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                                                          Sincerely,

                                                          A majority of the

                                                          Justices on the

                                                          Tenth Court of Appeals

Overview

          This is an appeal of a civil service hearing examiner’s judgment which reduced the time of a suspension from indefinitely to 180 days and demoted the employee.  The hearing examiner imposed a discipline that is not authorized by the civil service statute.  The City of Waco argued in the trial court, and now before this Court, that the unauthorized discipline was an abuse of authority.  It was.  The entire proceeding must, therefore, return to the hearing examiner and we can affirm no part of the district court’s decision.

          But the majority decides what they would have done and renders a judgment.  “Big mistake.  Big.  Huge.”  Pretty Woman (Touchstone Pictures 1990) (motion picture).  Kelley gets only a slap on the wrist of a 180 day suspension and reinstated as a commander for driving drunk, rather than indefinite suspension.

          So the majority negates the determination that the hearing examiner made to not reinstate Kelley as commander.  It appears the hearing examiner tried to strike some kind of a balance by shortening the time of the suspension, but to bust him back to sergeant.  The hearing examiner specifically found he should not be returned to duty as a commander.

Background Facts

          Kelley, a City of Waco Assistant Police Chief, while attending a police conference in Austin, Texas, was arrested while driving under the influence of alcohol.  The City of Waco Police Chief, in the terminology of the civil service statute, suspended him indefinitely.  In words common to the average person, Kelley was fired for driving while drunk.

Procedural Background

          Kelley appealed the firing.  A hearing was held.  The hearing examiner determined that Kelley’s suspension would be limited to 180 days and that he would be demoted to sergeant.  The City appealed the decision to district court.  The district court affirmed the hearing examiner and also awarded Kelley attorney fees.  The City appealed the district court’s decision to this Court.  A majority of this Court held we had no jurisdiction and dismissed the appeal.  City of Waco v. Kelley, No. 10-03-00214-CV, 2004 Tex. App. LEXIS 9828 (Tex. App.—Waco Oct. 29, 2004) (mem. op.).  The City appealed the dismissal to the Texas Supreme Court.  The Texas Supreme Court decided the majority’s dismissal for lack of jurisdiction was error and remanded the appeal to this Court for a decision on the merits.  City of Waco v. Kelley, 197 S.W.3d 324 (Tex. 2006).  This is now the decision on the merits.

Decision on the Merits

          The position of assistant police chief is obtained by an appointment made by the police chief.  Because it is an appointed position, the position is not considered a position in the department’s classified services for purposes of the civil service commission statute in the Local Government Code.

          If the police chief decides to discipline an assistant chief by an indefinite suspension, the assistant chief can appeal the suspension.  Specifically, the Code provides:

          If a person appointed under this section is charged with an offense in violation of civil service rules and indefinitely suspended by the department head, the person has the same rights and privileges of a hearing before the commission in the same manner and under the same conditions as a classified employee.  If the commission, a hearing examiner, or a court of competent jurisdiction finds the charges to be untrue or unfounded, the person shall immediately be restored to the same classification, or its equivalent, that the person held before appointment.  The person has all the rights and privileges of their prior position according to seniority, and shall be repaid for any lost wages.

Tex. Loc. Gov’t Code Ann. § 143.014(h) (Vernon 1999).

          But if the assistant chief prevails at the disciplinary hearing, his best outcome, if it is determined that the charges are untrue or unfounded, is to be restored to the classified position held before the appointment.  Id.  This is the natural result of serving in an appointed position and the person making the appointment would fire the person but the hearing examiner determines there is no basis to support firing. Therefore, the person is returned to the last civil service position held before the appointment.

          We need not dwell on this outcome, however, because the hearing examiner did not find that the charge of driving while intoxicated was untrue or unfounded.  The City argues that this statute is the hearing examiner’s only option.  I disagree with the City of Waco’s interpretation of this statute that this is the only outcome for an assistant chief.  There is nothing that indicates that the hearing examiner’s options are limited to affirming the indefinite suspension if charges are not found to be untrue or unfounded or reinstatement to the position prior to appointment if the charges are found to be untrue or unfounded.  The plain wording of the statute actually negates such a reading.

          The first sentence clearly states that a person in Kelley’s position “has the same rights and privileges of a hearing before [a hearing examiner] in the same manner and under the same conditions as a classified employee.”  Id.  I do not read this to mean only as to having a hearing.  This provision does not imply the all or nothing position advocated by the City that the person’s firing is upheld unless the charges are found untrue or unfounded.

          Rather, the provision makes it clear that the person serving in an appointed position still has the same rights and privileges to civil service protection after an appointment as before the appointment when threatened with being fired for a civil service violation.

          Does the “rights and privileges” mean only a hearing?  I do not believe it is so limited.  A fair reading means they have the same rights and privileges they would have if they were still serving in a classified position.  This means the person has the same rights and privileges so the hearing examiner is limited to the same disciplinary remedies as with any other classified position.

          As the City of Waco has consistently argued in the alternative, the hearing examiner had no authority to demote Kelley from Commander, the last position Kelley held prior to the appointment, to sergeant.  Demotion is simply not an available remedy under these circumstances because the police chief did not request demotion.  See Tex. Loc. Gov’t Code Ann. § 143.054 (Vernon 1999).  The available remedy and the results thereof are spelled out for the examiner as follows:

(e) In its decision, the commission shall state whether the suspended fire fighter or police officer is:

          (1) permanently dismissed from the fire or police department;

          (2) temporarily suspended from the department; or

          (3) restored to the person’s former position or status in the department’s   classified service.

(f)  If the commission finds that the period of disciplinary suspension should be reduced, the commission may order a reduction in the period of suspension.  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 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 credit in a          retirement system.  Standard payroll deductions, if any, for retirement     and other benefits restored shall be made from the compensation paid,    and the municipality shall make its standard corresponding contributions, if any, to the retirement system or other applicable benefit systems.

Id. § 143.053(e), (f) (Vernon Supp. 2006).

          The examiner, however, not only determined that the suspension should be temporary rather than permanent, the examiner also busted Kelley back to sergeant because he determined that Kelley should not return to work after the suspension as a commander.  Thus, under the first sentence of § (f), the hearing examiner was authorized to reduce the period of suspension because he determined that Kelley should be temporarily suspended, for 180 days, id. § (e)(2), rather than permanently dismissed, id. § (e)(1).[1] But nowhere in section 143.053 is the hearing examiner authorized to demote Kelley.  The examiner clearly exceeded his authority.  The City’s issue should be sustained, and the entire proceeding should be remanded to the hearing examiner for further proceedings consistent with this opinion.

          On appeal, we can render the judgment the trial court should have rendered.  In this appeal, that means we must determine what judgment the trial court should have rendered.  In this administrative appeal, the trial court could render the judgment the hearing examiner should have rendered.  The hearing examiner, however, had a broad range of options, but the option he chose happened to be invalid.  I recognize that the hearing examiner’s decision to reduce the length of Kelley’s suspension may have been closely related to his decision to demote Kelley.  Thus, we do not know what decision the hearing examiner would have made if he had known that a demotion was not an option.  The hearing examiner obviously thought something more than a 180 day suspension was warranted for Kelley’s actions.  The hearing examiner expressly determined Kelley should NOT be reinstated to his former position as commander.  There is no question that the hearing examiner could have affirmed the indefinite suspension.  There is no way for the trial court or this Court to determine if the hearing examiner knew his only option was to reinstate Kelley as commander whether he would have reinstated him at all.  Alternatively, the hearing examiner may have decided to substantially lengthen the suspension, maybe until all appeals are exhausted, before he was reinstated as commander.  There is no cause, much less just cause, for the majority to make the decision for the hearing examiner by reinstating Kelley as a commander.

          This Court simply does not have the authority to reinstate Kelley as commander.  That is giving a party who did not file a notice of appeal a more favorable judgment without just cause.  See Tex. R. App. P. 25.1(c).  And to add to the impropriety, the majority is not only giving a non-appealing party a more favorable judgment, they are giving him something he did not even ask for!

          I dissent, I really dissent.

Attorney Fees

          By the Court’s judgment, Kelley should be returned to the same place he was when he first appealed the police chief’s permanent suspension of him to the hearing examiner.  The majority, however, also affirms the trial court’s award of attorney fees to Kelley.  Kelley is not entitled to attorney fees because he would not be a prevailing party if he was returned to the position immediately before his appeal to the hearing examiner.  I must also, therefore, dissent from the majority’s judgment awarding attorney fees.

Conclusion

          We do not know what the hearing examiner, if faced with the knowledge that Kelley must be returned to commander, would have done.  The hearing examiner, however, left no doubt that he thought that was not warranted based upon the facts of Kelley’s violation. It would not have been error for the hearing examiner to affirm the indefinite suspension.  Thus, we do not know what judgment the hearing examiner would have or should have rendered.  I know what I would have done, but that, like knowing what the majority would do, is not relevant to our review of what the hearing examiner did.  Basically, there is no alternative than to start over.  Further, we have no authority to give Kelley a more favorable judgment than did the hearing examiner because Kelley is not an appealing party and he did not ask to be reinstated as commander or complain about being busted back to sergeant.

Epilogue

Dear City of Waco,

          Sorry to put you through this, but you are going to have to go to the Supreme Court in Austin, again.  The Tenth Court of Appeals in Waco has some problems right now that I hope are fixed real soon.  But for now, you are in the appellate district that was reversed in 2006 more often than any other appellate court in Texas.[2]  I have done what I could, by writing lots of dissenting opinions, but it has not really helped the situation any.  Good luck on your trip to Austin.

                                                          Sincerely,

                                                          The dissenting Chief Justice

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed May 2, 2007

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[1]  I note that the second sentence of subsection (f), including the two subparts, is applicable only if the examiner makes the determination under subsection (e)(3) that the person should be restored to their former position.  As such, this provision is not applicable to a person who has been temporarily suspended under subsection (e)(2), as Kelley has been.  This limitation on the applicability of this provision should not be confused with what may be the City of Waco’s obligation to pay Kelley from the end of his temporary suspension, if ordered by the hearing examiner on remand, through the date of payment, which may be a long time indeed.  But it is not, technically speaking, a restoration to his former position under subsection (e)(3) and the remedies described therefore in subsection (f)(1) and (2).

[2]           See, in the last calendar year, in the Texas Supreme Court, e.g., Norris v. State Farm Mut. Auto. Ins. Co., No. 10-01-00370-CV, 2004 Tex. App. LEXIS 3433 (Tex. App.—Waco Apr. 14, 2004) (mem. op.), rev’d, 50 Tex. Sup. Ct. J. 269, 2006 Tex. LEXIS 1298 (Tex. Dec. 22, 2006); Texas Dep't of Pub. Safety v. Alford, 154 S.W.3d 133 (Tex. App.—Waco 2004), rev’d, 209 S.W.3d 101 (Tex. 2006) (per curiam); City of Waco v. Kelley, No. 10-03-00214-CV, 2004 Tex. App. LEXIS 9828 (Tex. App.—Waco Oct. 29, 2004) (mem. op.), rev’d, 197 S.W.3d 324 (Tex. 2006) (per curiam); Univ. of Tex. Med. Branch v. Estate of Blackmon, 169 S.W.3d 712 (Tex. App.—Waco 2005), vacated, 195 S.W.3d 98 (Tex. 2006) (per curiam); Scott v. Citizen’s Nat’l Bank, No. 10-03-00322-CV, 2005 Tex. App. LEXIS 2587 (Tex. App.—Waco Mar. 30, 2005), rev’d sub nom. Citizens Nat'l Bank v. Scott, 195 S.W.3d 94 (Tex. 2006) (per curiam); Langley v. Jernigan, No. 10-00-00373-CV, 2005 Tex. App. LEXIS 1687 (Tex. App.—Waco Mar. 2, 2005) (mem. op.), rev’d, 195 S.W.3d 91 (Tex. 2006) (per curiam); Kiefer v. Touris, No. 10-03-00331-CV, 2005 Tex. App. LEXIS 5079 (Tex. App.—Waco June 29, 2005) (mem. op.), rev’d, 197 S.W.3d 300 (Tex. 2006) (per curiam); Elwood v. Kroger Co., No. 10-02-00349-CV, 2004 Tex. App. LEXIS 10119 (Tex. App.—Waco Nov. 10, 2004) (mem. op.), rev’d, 197 S.W.3d 793 (Tex. 2006) (per curiam); Lingafelter v. Shupe, 154 S.W.3d 233 (Tex. App.—Waco 2005), rev’d, 192 S.W.3d 577 (Tex. 2006) (per curiam). 

            See also, in criminal cases, e.g., Westerman v. State, No. 10-04-00292-CR, 2005 Tex. App. LEXIS 4842 (Tex. App.—Waco June 22, 2005) (not designated for publication) (mem. op.), rev’d, No. PD-1314-05, 2006 WL 2694388 (Tex. Crim. App. Sept. 20, 2006) (not designated for publication); Meza v. State, No. 10-05-00037-CR, 2005 Tex. App. LEXIS 5566 (Tex. App.—Waco July 13, 2005) (mem. op.) (not designated for publication), remanded, 206 S.W.3d 684 (Tex. Crim. App. 2006) (sua-sponte discretionary review); Kniatt v. State, 157 S.W.3d 83 (Tex. App.—Waco 2005), rev’d, 206 S.W.3d 657 (Tex. Crim. App. 2006), cert. denied, 127 S. Ct. 667 (2006); Olivas v. State, 153 S.W.3d 108 (Tex. App.—Waco 2004) (3 cases), rev’d, 202 S.W.3d 137 (Tex. Crim. App. 2006); Olivas v. State, No. 10-02-00311-CR, 2004 Tex. App. LEXIS 10131 (Tex. App.—Waco Nov. 10, 2004) (not designated for publication) (mem. op.), rev’d, 203 S.W.3d 341 (Tex. Crim. App. 2006); Watson v. State, 160 S.W.3d 627 (Tex. App.—Waco 2005), rev’d, 204 S.W.3d 404 (Tex. Crim. App. 2006); Herring v. State, 160 S.W.3d 618 (Tex. App.—Waco 2005) (mem. op.), rev’d, 202 S.W.3d 764 (Tex. Crim. App. 2006), cert. denied, 2007 U.S. LEXIS 4430 (U.S. Apr. 23, 2007); State v. Stanley, 171 S.W.3d 516 (Tex. App.—Waco 2005), rev’d, 201 S.W.3d 754 (Tex. Crim. App. 2006); State v. Adams, No. 10-05-00102-CR, 2005 Tex. App. LEXIS 5971 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; State v. Rodriguez, No. 10-05-00103-CR, 2005 Tex. App. LEXIS 5914 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; State v. Wachsmann, No. 10-05-00104-CR, 2005 Tex. App. LEXIS 5915 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; State v. Juntunen, No. 10-05-00105-CR, 2005 Tex. App. LEXIS 5940 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; State v. Carpenter, No. 10-05-00106-CR, 2005 Tex. App. LEXIS 5936 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; State v. Rodgers, No. 10-05-00107-CR, 2005 Tex. App. LEXIS 5913 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; State v. Boutin, No. 10-05-00108-CR, 2005 Tex. App. LEXIS 5920 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; State v. Holmes, No. 10-05-00109-CR, 2005 Tex. App. LEXIS 5928 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; State v. Garcia, No. 10-05-00110-CR, 2005 Tex. App. LEXIS 5919 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; State v. Telles, No. 10-05-00111-CR, 2005 Tex. App. LEXIS 5939 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; State v. Leftwich, No. 10-05-00112-CR, 2005 Tex. App. LEXIS 5946 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; State v. Collier, No. 10-05-00113-CR, 2005 Tex. App. LEXIS 5917 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; State v. Dobbs, No. 10-05-00114-CR, 2005 Tex. App. LEXIS 5938 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; State v. Bagby, No. 10-05-00115-CR, 2005 Tex. App. LEXIS 5918 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; State v. Unger, No. 10-05-00116-CR, 2005 Tex. App. LEXIS 5942 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; State v. Eby, No. 10-05-00117-CR, 2005 Tex. App. LEXIS 5916 (Tex. App.—Waco July 27, 2005) (not designated for publication) (mem. op.) (per curiam), rev’d, Stanley, 201 S.W.3d 754; Cocke v. State, 170 S.W.3d 747 (Tex. App.—Waco 2005), rev’d, 201 S.W.3d 744 (Tex. Crim. App. 2006), cert. denied, 167 L. Ed. 2d 332 (2007); Montanez v. State, 143 S.W.3d 344 (Tex. App.—Waco 2004), rev’d, 195 S.W.3d 101 (Tex. Crim. App. 2006); Pena v. State, 166 S.W.3d 274 (Tex. App.—Waco 2005), vacated, 191 S.W.3d 133 (Tex. Crim. App. 2006); Powell v. State, 151 S.W.3d 646 (Tex. App.—Waco 2004), rev’d, 189 S.W.3d 285 (Tex. Crim. App. 2006); Robertson v. State, No. 10-03-00265-CR, 2004 Tex. App. LEXIS 10130 (Tex. App.—Waco Nov. 10, 2004) (not designated for publication) (mem. op.), rev’d, 187 S.W.3d 475 (Tex. Crim. App. 2006).

            Calendar year 2007 does not look good, either.  See, e.g., Sonnichsen v. Baylor Univ., No. 10-02-00125-CV, 2004 Tex. App. LEXIS 7774 (Tex. App.—Waco Aug. 25, 2004) (mem. op.), rev'd & judgm't rendered, No. 04-0851, 2007 Tex. LEXIS 319 (Tex. Apr. 20, 2007) (per curiam); Coley v. Baylor Univ., 147 S.W.3d 567 (Tex. App.—Waco 2004), rev'd & judgm't rendered, No. 04-0916, 2007 Tex. LEXIS 322 (Tex. Apr. 20, 2007); In re Guardianship of Keller, 171 S.W.3d 498 (Tex. App.—Waco 2005), rev'd sub nom. Zipp v. Wuemling, 50 Tex. Sup. Ct. J. 543, 2007 Tex. LEXIS 205 (Tex. Mar. 7, 2007) (per curiam); State Farm Life Ins. Co. v. Martinez, 174 S.W.3d 772 (Tex. App.—Waco 2005), rev'd, 50 Tex. Sup. Ct. J. 406, 2007 Tex. LEXIS 131 (Tex. Feb. 9, 2007); Wachovia Bank of Del., N.A. v. Gilliam, No. 10-04-00038-CV, 2005 Tex. App. LEXIS 5039 (Tex. App.—Waco June 29, 2005 (mem. op.), rev'd & judgm't vacated, 215 S.W.3d 848 (Tex. 2007) (per curiam); Hooper v. State, 170 S.W.3d 736 (Tex. App.—Waco 2005), remanded, 214 S.W.3d 9 (Tex. Crim. App. 2007); Griggs v. State, 167 S.W.3d 74 (Tex. App.—Waco 2005), rev'd, 213 S.W.3d 923 (Tex. Crim. App. 2007).