the City of Houston v. Donald Clark ( 2008 )

Concurring Opinion issued on March 18, 2008 withdrawn and Substitute Concurring Opinion filed April 22, 2008

Concurring Opinion issued on March 18, 2008 withdrawn and Substitute Concurring Opinion filed April 22, 2008.

In The

Fourteenth Court of Appeals

_______________

NO. 14-03-00399-CV

_______________

CITY OF HOUSTON, Appellant

V.

DONALD CLARK, Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 00‑20826

S U B S T I T U T E   C O N C U R R I N G   O P I N I O N

The Concurring Opinion issued in this case on March 18, 2008 is withdrawn and the following substitute Concurring Opinion is issued in its place.

I agree with the disposition reached by the Majority Opinion, but for the reasons set forth below.

                                                  Declaratory Judgment Claims

The Majority Opinion concludes that the trial court lacked jurisdiction over the parties= declaratory judgment claims because those claims were not within the scope of the City=s right to appeal the hearing examiner=s decision under section 143.1016(j).  However, this overlooks the facts that: (1) as recited in the Majority opinion, the City=s lawsuit in the trial court not only appealed the hearing examiner=s decision, but also sought declaratory relief, i.e., as a separate claim from the relief it sought in appealing the hearing examiner=s decision; and (2) in addition to filing a denial of the City=s action to appeal the hearing examiner=s decision, Clark filed a counterclaim for declaratory relief.  Therefore, the Majority=s conclusion that the parties= claims for declaratory relief were not within the City=s limited right of appeal does not dispose of those claims because they were asserted separately from the City=s claims regarding the appeal.

As a preliminary matter, because our disposition of the declaratory judgment issues in the preceding appeal to this court was not overturned in the Supreme Court=s opinion,^[1] it technically remains in effect.  However, because our explanation for dismissing the declaratory judgment issues in the preceding appeal relied, in part, (unnecessarily) on our holding that the City had no right to appeal, which was reversed, it would be prudent to reiterate the reasoning that leads to the same conclusion on the declaratory judgment issues based on the current circumstances.

Standing is a component of subject matter jurisdiction that cannot be waived, and may be raised for the first time on appeal by the parties or the court.  Tex. Ass=n of Bus. v. Air Control Bd., 852 S.W.2d 440, 443-45 (Tex. 1993). Standing requires a real controversy to exist between the parties that will actually be determined by the judicial declaration sought.  Tex. Workers= Comp. Comm=n v. Garcia, 893 S.W.2d 504, 517-18 (Tex. 1995).  If a live controversy ceases to exist in a case, the parties lack a legally cognizable interest in the outcome, or the court=s actions cannot affect the rights of the parties, the case becomes moot.  Pinnacle Gas Treating, Inc. v. Read, 104 S.W.3d 544, 545 (Tex. 2003); Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001).  Courts have no jurisdiction to render advisory opinions on moot controversies.  Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000); Nat=l Collegiate Athletic Ass=n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999).  The distinctive feature of an advisory opinion is that it decides an abstract question of law without binding the parties.  Tex. Ass=n of Bus., 852 S.W.2d at 444.  In this context, the Declaratory Judgments Act is a procedural device for deciding cases already within a court=s jurisdiction, rather than a legislative enlargement of the court=s power that would permit the rendition of advisory opinions.  Id.

In this case, because the appeal of the hearing examiner=s decision will resolve the dispute between the City and Clark with regard to Clark=s suspension, that dispute cannot be affected by any determination on the issues for which declaratory relief was sought in this case by either party.  There is, thus, no live controversy between the City and Clark regarding his suspension outside of that appeal, and the declaratory judgment rendered by the district court in Clark=s favor is purely advisory.  It is for this reason, rather than that relied upon in the Majority Opinion, that neither this court nor the district court has jurisdiction to decide any of the declaratory judgment claims, and those claims should be dismissed.

                                                   Hearing Examiner=s Decision

Where, as in this case, a fire fighter appeals a disciplinary decision to a hearing examiner rather than to the Fire Fighters= and Police Officers= Civil Service Commission (the ACommission@), the hearing examiner=s decision is final and binding on all parties, and the fire fighter automatically waives all rights to appeal to a district court except as provided by subsection 143.1016(j) (Asubsection (j)@) of the Texas Local Government Code (Athe code@).  See  Tex. Loc. Gov=t Code Ann. ' 143.1016(c) (Vernon 2008).  Under subsection (j), a district court may hear an appeal of a hearing examiner=s award only on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means.  See id. ' 143.1016(j);  Clark, 197 S.W.3d at 324 (holding that the City has a right to appeal a hearing examiner=s decision,^[2] but the appeal is restricted in scope by subsection (j)).

In this case, the City does not contend that the hearing examiner=s award was procured by fraud, collusion, or other unlawful means, but argues that the hearing examiner=s decision can be reviewed for whether the examiner was either without jurisdiction or abused his authority.  However, subjection (j) does not expressly contain an abuse of authority standard, and we have previously recognized that the case law is unsettled as to whether that standard applies to subsection (j), and, if so, what it means.  See Bradford v. Pappillion, 207 S.W.3d 841, 843-45 (Tex. App.CHouston [14th Dist.] 2006, no pet.). However, in considering the scope of subsection (j), the First Court Opinion in the preceding appeal in this case stated:

[T]he City argued in its motion for summary judgment that the hearing examiner had exceeded his authority by ruling incorrectly on the motion to dismiss.  That is, on motion for summary judgment, the City argued that the hearing examiner made the wrong decision, not that he had no power to make that decision.

Consistent with section 143.1016(j), the City may not challenge the correctness of the hearing examiner=s decision.  If the hearing examiner had jurisdiction to rule on the motion to dismiss, that ruling, whether right or wrong, is unassailable unless obtained by fraud or some other unlawful means. Therefore, under ' 143.1016(j), the issue is not whether he ruled correctly, but whether he had jurisdiction to rule at all on the motion to dismiss.

City of Houston v. Clark, No. 01-01-00828-CV, 2002 WL 31771188, at *4 (Tex. App.CHouston [1st Dist.] Dec. 12, 2002) (citations omitted).  The Supreme Court=s opinion similarly noted:

The City claims its appeal fits within Section 143.1016(j)=s limited scope because the hearing examiner acted without or exceeded his jurisdiction by erroneously deciding that an acting fire chief is not authorized to suspend fire department personnel.

*          *          *          *

The City takes a much broader view of the issues [than] the provision would allow to be raised on appeal.

City of Houston, 197 S.W.3d at 324.^[3] Therefore, our review must be confined to the City=s arguments that challenge the hearing examiner=s jurisdiction to rule on the motion to dismiss at all (as contrasted from those that contend, in effect, that the hearing examiner ruled incorrectly that the acting fire chief lacked the necessary authority by misapplying applicable law).^[4]

The City first challenges the hearing examiner=s jurisdiction to rule on Clark=s motion to dismiss on the ground that Clark waived his objection to the acting fire chief=s lack of authority to suspend him by failing to include it as a basis for his appeal.^[5] However, the City cites no authority providing that a fire fighter cannot add to the grounds stated in his notice of appeal, and the hearing examiner=s award states:

A Motion to Dismiss was filed on behalf of [Clark] following the hearing on the merits of the instant matter.  It was mutually agreed to by the parties that the [hearing examiner] should rule on the Motion to Dismiss, and upon the merits of the instant matter.

(emphasis added).  Therefore, the City has not demonstrated that Clark waived his objection to the acting chief=s lack of authority to suspend him (and the City does not assert that the hearing examiner would lack jurisdiction over that issue for any other reason).

The City also challenges the hearing examiner=s jurisdiction to rule on the motion to dismiss on the ground that it was outside the statutory scope of appeal, which was limited to deciding whether the suspension was supported by just cause, should be reduced, or should be reversed.^[6] However, in support of this contention, the City states only that AThe hearing examiner . . . had no authority to rule on Clark=s Motion to Dismiss without absolute disregard of all applicable law, specifically City Ordinance 34-55 [pertaining to the appointment and authority of an acting HFD chief] and Tex. Loc. Gov=t Code, Section 34-55 [apparently an error, as no such section exists].@  Therefore, the City has not demonstrated that a ruling on the motion to dismiss was outside the statutory scope of appeal.

Because the City=s remaining challenges to the hearing examiner=s jurisdiction to rule on the motion to dismiss are all variations of its argument that the hearing examiner

misapplied the law in ruling incorrectly on that motion, we can not properly address them.

/s/        Richard H. Edelman

Senior Justice

Substitute Concurring Opinion filed April 22, 2008.

Panel consists of Justices Frost, Guzman, and Edelman.^*

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^[1]           See City of Houston v. Clark, 197 S.W.3d 314, 324 (Tex. 2006).

^[2]           There is no right to judicial review of an administrative order unless a statute explicitly provides that right or the order violates a constitutional right.  Houston Mun. Employees Pension Sys. v. Ferrell, __ S.W.3d __, __ (Tex. 2007). Accordingly, when an act is either silent on the question of appeal or expressly denies a right to appeal, a party may appeal only where the administrative action complained of violates a constitutional provision.  Id. Where no constitutional violation is at issue and the question is merely whether the Legislature specifically provided for judicial review, courts look to the plain meaning of the statutory text to determine the Legislature=s intent.  Id. The words, Afinal and binding,@ when used to describe an administrative decision, preclude judicial review.  Id.

As relevant to this case, section 143.1016(c) of the code provides that a hearing examiner=s decision is Afinal and binding on all parties,@ and that a fire fighter automatically waives all rights to appeal except as provided by subsection 143.1016(j).  Although no provision of the code refers to any right of appeal by a city whatever, and there was no issue as to the constitutionality of the administrative order in this case, the Court=s conclusion that such a right nevertheless exists was based largely on the City=s contention (raised for the first time in the Supreme Court), and the Court=s concern, that construing the code to foreclose such a right of appeal would constitute an unconstitutional delegation of authority.  See Clark, 197 S.W.3d at 317, 320.  In addition, the Court noted that if the right of appeal in subsection (j) does not afford a city a meaningful review of the merits of a decision, the delegation of grievance decisions to an independent hearing examiner may itself raise constitutional problems.  Id. at 324.

It is not apparent how this rationale fits with the Court=s previous decision that the Texas Constitution guarantees separation of powers only as between branches of state, not local, government.  See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 72 (Tex. 2000).  Moreover, in construing the current code to provide the City this right of appeal, the opinion construed a previous version of the statute to deny a police officer or fire fighter that right, and, thus, in effect, to have the very constitutional defect that the Court was construing the current statute to avoid.  See Clark, 197 S.W.3d at 321-25.  Nor is it apparent how a right to judicial review can be held to exist where the statute does not explicitly provide it and no constitutional violation has been asserted or found. See Ferrell, __ SW3d at __.

In this case, however, because the City has not challenged the constitutionality of the scope of the right of appeal under subsection (j), we need not address it further.

^[3]           See supra note 2.

^[4]           We therefore do not address, expressly or impliedly, whether an acting fire chief has the authority to issue a suspension, and, as indicated in the preceding section, the trial court=s declaratory judgment pertaining to that issue is of no effect.

^[5]           See Tex. Loc. Gov=t Code ' 143.010(b) (Vernon 2008) (requiring a fire fighter=s appeal to include the basis for the appeal).

^[6]           See Tex. Loc. Gov=t Code ' 143.016(f) (Vernon 2008) (stating that a hearing examiner has the same duties and powers as the Commission); id. ' 143.118(a), (b)(Vernon 2008)(stating that in a fire fighter=s appeal to the Commission, the Commission shall determine if just cause exists for the suspension, may order a reduction in the period of suspension, and may reverse the department head=s decision and instruct the department head to immediately restore the fire fighter to his prior position and repay him any lost wages).  The City does not contend that the granting of the motion to dismiss is procedurally different from the reversal of a suspension.  Nor does the City contend that a suspension could not be reversed if the person imposing it lacked the authority to do so.

^*           Senior Justice Richard Edelman sitting by assignment.