City of Lubbock, Texas v. Christopher Hennsley ( 2013 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-12-00325-CV
________________________
CITY OF LUBBOCK, TEXAS, APPELLANT
V.
CHRISTOPHER HENNSLEY, APPELLEE
On Appeal from the 72nd District Court
Lubbock County, Texas
Trial Court No. 2011-559,814, Honorable Ruben G. Reyes, Presiding
September 12, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
The City of Lubbock (the City) appeals from an order granting Christopher
Hennsley’s (Hennsley) plea to the jurisdiction. Hennsley was terminated from the
Lubbock Police Department and sought review of that termination before a hearing
examiner. The latter ultimately modified the discipline levied to a fifteen-day
suspension. This led the City to petition the district court for review of the examiner's
decision. After suit was filed, Hennsley filed his plea to the jurisdiction, questioning the
trial court's authority to entertain the proceeding. The trial court subsequently granted
the plea and dismissed the suit. The City contends, via two issues, that the dismissal
was improper. We reverse and remand.
Standard of Review
A plea to the jurisdiction is a dilatory plea used to defeat a cause of action
without regard to the merit of the causes of action presented. Bland Indep. School Dist.
v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Through that plea, the movant challenges the
trial court’s subject matter jurisdiction to entertain the dispute. Id. Whether jurisdiction
exists is a question of law, reviewed de novo. See State Ex Rel. Dep’t of Highways v.
Gonzales, 82 S.W.3d 322, 327 (Tex. 2002). But, like most things related to the law,
what the answer is usually depends upon the facts involved, and those facts normally
depend upon the status of the evidentiary record.
Next, in considering that record, the court is to accept as true all evidence
favorable to the party seeking to invoke the court's jurisdiction. Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). So too must that jurist indulge in
every reasonable inference, and resolve any doubts, against the movant. Id. At times,
though, the operative jurisdictional facts are in dispute; that is, some evidence supports
the existence of those operative facts while other evidence negates them. If the latter
situation arises then the plea cannot be granted until the factfinder resolves the factual
dispute. Id. at 227-28; Bland Indep. School Dist. v. Blue, 34 S.W.3d at 555.
The jurisdictional issue at bar arises from the application of section 143.057(j) of
the Texas Local Government Code. It provides that:
A district court may hear an appeal of a hearing examiner’s award only on
the grounds that the [examiner] was without jurisdiction or exceeded its
jurisdiction or that the order was procured by fraud, collusion, or other
unlawful means. An appeal must be brought in the district court having
jurisdiction in the municipality in which the fire or police department is
located.
2
TEX. LOC. GOV’T CODE ANN. § 143.057(j) (West 2008). In effort to establish jurisdiction,
the City pled in its complaint that the hearing examiner exceeded its jurisdiction by
applying chapter 614 of the Texas Government Code to the dispute and concluding that
because the statute's requirements went unfulfilled, it would restrict its review to only
some of the grounds proffered by the police chief as justification for Hennsley's
termination. Via his plea to the trial court's jurisdiction, Hennsley argued to the contrary.
Per the section of chapter 614 at issue here,
(b) Disciplinary action may not be taken against the officer or
employee unless a copy of the signed complaint is given to the officer or
employee.
(c) In addition to the requirement of Subsection (b), the officer or
employee may not be indefinitely suspended or terminated from
employment based on the subject matter of the complaint unless:
(1) the complaint is investigated; and
(2) there is evidence to prove the allegation of misconduct.
TEX. GOV’T CODE ANN. § 614.023(b) & (c)(1) & (2) (West 2012). 1 The record before us
contains the following evidence pertinent to whether the requirements of § 614.023(b)
and (c) were met.
1
The City questions the applicability of Texas Government Code § 614.023 to the circumstances
at bar. That is not a matter we need address given our ultimate disposition of the conflict. See Treadway
v. Holder, 309 S.W.3d 780 (Tex. App.–Austin 2010, pet. denied) (holding via a split decision that the
section applies to complaints initiated within the police department). We further note that section 143.052
of the Texas Local Government Code specifies a procedure for terminating policemen and other
government employees whose employment is encompassed by a civil service agreement. TEX. LOC.
GOV’T CODE ANN. § 143.052 (West 2008). Neither party discloses whether employment as an officer with
the Lubbock Police Department is covered by such a civil service agreement. If it is, neither spoke about
whether Hennsley was terminated for violating a civil service rule. If he was, then other notice
requirements may have been applicable to or controlling of the situation at bar. See id. §143.052(c)
(stating that “[i]f the department head suspends a fire fighter or police officer, the department head shall,
within 120 hours after the hour of suspension, file a written statement with the commission giving the
reasons for the suspension. The department head shall immediately deliver a copy of the statement in
person to the suspended fire fighter or police officer”).
3
Approximately five months before his termination, Hennsley received a copy of a
memorandum drafted by Captain Hudgens and describing an incident involving
Hennsley, another officer and various occupants of a vehicle. 2 An investigation of the
incident ensued and resulted in the police chief issuing a letter of “charges” to Hennsley
on June 21, 2010. The “charges” or accusations contained in the June missive included
some of those encompassed within Hudgens’ earlier memo and others apparently
uncovered during the investigation. Furthermore, Hennsley was granted opportunity to
review and respond to the June letter before any discipline was levied. The officer took
advantage of that opportunity, drafted his reply to the accusations, and returned them to
his superior. Within several days of that, the police chief ordered Hennsley’s
termination. The officer then appealed to a hearing examiner.
In considering the appeal, the hearing examiner opted not to assess the validity
of all the accusations contained in the “charge” letter but only those that were in both
Hudgens’ memorandum and the “charge” letter. Apparently, he believed this to be the
2
The memo consisted, in large part, of the following statements:
I believe there were serious use of force policy violations committed by Ofc. Christopher
Hennsley, Ofc. Dustin Tucker and possibly by Ofc. Edward Day . . . I also believe that
Ofc. Hennsley misrepresented the suspect’s actions when he called out on the radio with
the pursuit and in his crime report. I also believe that Ofc. Hennsley unnecessarily
destroyed a citizens’ property.
The pursuit came to a stop in the 4700 Block of Avenue Q. Ofcs. Hennsley and Day
initiated a high risk stop and all of the occupants of the suspect vehicle stayed in the car.
However, Ofc. Hennsley abandoned his position of cover and broke out the rear window
of the suspect vehicle with his ASP baton. After several moments the occupants of the
suspect vehicle began to exit the car. The first subject exited the car with his hands
raised over his head and began slowly walking toward the curb. Ofc. Hennsley
approached him and kicked him in the stomach area. The subject had not offered any
resistance or indication that he was going to be aggressive. Ofc. Hennsley then forced
the subject to the ground . . . . Ofc. Day holstered his pistol and approached the
passenger side of the car and a male in a red and white striped shirt exited. The male
can be heard shouting and appeared agitated but did not make an obvious visible
aggressive move toward Ofc. Day. Ofc. Day kicked the subject in the midsection twice
and Ofc. Hennsley then tazed him.
Due to the serious nature of the apparent policy violations I believe that a formal Internal
Affairs investigation of the incident should be conducted.
4
just way of proceeding since those allegations outside the scope of the Hudgens’ memo
were not made known to Hennsley until he received the June missive from the police
chief. 3 In other words, the examiner concluded that despite Hennsley being given the
formal charge letter by the chief and opportunity to respond to those accusations, he
would not consider all the allegations included therein. And, upon proceeding under
that premise, the examiner modified Hennsley’s discipline to a fifteen-day suspension.
In City of Houston v. Wilburn, No. 01-12-00913-CV, 2013 WL 3354182, 2013
Tex. App. LEXIS 8091 (Tex. App.–Houston [1st Dist.] July 2, 2013, no pet. h.), the court
noted that
Before Wilburn received the letter of indefinite suspension on August 19,
the City had provided him with two signed letters informing him of the
complaint giving rise to that disciplinary action: the first from the acting
department chief notifying Wilburn that he was on paid suspension
pending an investigation of misconduct occurring on or about the date
Wilburn provided the urine specimen, and the second from the MRO
confirming that testing from both laboratories yielded a positive result for
the presence of cocaine metabolite.
Id. at *10-11. It continued by saying that “[t]hese letters are some evidence that Wilburn
received a copy of a signed complaint ‘within a reasonable time’ after the basis for the
complaint arose—that is, when Wilburn provided the sample for random testing under
the policy.” Id. at *11. Implicit in that observation is recognition that the “complaint”
alluded to in § 614.023 need not consist of only one document. Instead, the existence
of both letters, according to Wilburn, constituted evidence of compliance with the
requirements of § 614.023. Id.
As previously illustrated, we have before us evidence of Hennsley being given
both a memorandum containing some accusations being levied against him and an
3
The verbiage used by the examiner consisted of the following: “it would be unjust to impose
discipline for charges that could have been, but were not, made known to Officer Hennsley in
writing during the five months between the incident in question and the delivery of the Proposed
Suspension Letter.”
5
actual “charge” letter from the police chief containing all the allegations being levied. He
not only viewed both but also received opportunity to rebut or respond to all the charges
before being disciplined. Combining both documents here, as the Wilburn court did
there, results in evidence of compliance with the statutory obligation in controversy.
Hennsley was given a copy of all the complaints and charges against him (i.e. those of
Hudgens and of the chief) as contemplated by § 614.023. The hearing examiner
acknowledged as much in his findings but faulted the effort because he thought that the
additional accusations in the June document should have been disclosed at some time
or another during the investigation.
The foregoing is problematic for several reasons. First, the examiner’s authority
is derived from statute and quite constrained. City of Waco v. Kelley, 309 S.W.3d 536,
541-42 (Tex. 2010); City of Pasadena v. Smith, 292 S.W.3d 14, 20 (Tex. 2009). If his
acts are not authorized by the statute or are contrary to it, they exceed his jurisdiction.
City of Pasadena, 292 S.W.3d at 20. To the extent that Hennsley received notice of
both potential wrongs encompassed within the Hudgen’s memo and the more formal
accusations within the chief’s correspondence before being disciplined, the purported
requirement of prior notice in § 614.023 was satisfied. Once that is done, nothing within
that statute, or any other mentioned by the parties or found by this court, afford the
examiner any type of discretion to pick and choose which accusations to review. 4 So,
by opting to review only some of the accusations, the examiner exercised authority not
given him; he effectively implemented his own rule granting him discretion not afforded
by statute.
4
Of note is Texas Local Government Code section 143.053(c). It states that: “(c) In a hearing
conducted under this section, the department head is restricted to the department head's original written
statement and charges, which may not be amended.” TEX. LOCAL GOV’T CODE ANN. § 143.053(c) (West
2008). This suggests that the operative complaint is that of the chief or department head and upon which
discipline was levied.
6
Second, by opting to forego consideration of all the accusations levied in the
chief’s missive (but allegedly omitted from Hudgen’s memo) because they “could have
been, but were not, made known to Officer Hennsley in writing during the five
months between the incident in question and the delivery of the Proposed Suspension
Letter,” the examiner effectively instituted a time period within which notice of all the
complaints or accusations must be given. Yet, § 614.023(b) says nothing of any specific
time period. Nor does it impugn the period of time accorded by the chief here. So, it
can reasonably be said that the examiner adopted his own rule regarding the quantum
of prior notice that should be afforded, applied it retroactively to the situation at hand,
and concluded that the quantum of notice was not enough. This is despite Hennsley
garnering notice of all the charges before being disciplined and having time to respond
to them. As stated by the Supreme Court in City of Pasadena, examiners lack power to
create their own procedural rules. City of Pasadena v. Smith, 292 S.W.3d at 20.
Because the hearing examiner did just that viz the matter of prior notice, he exceeded
his jurisdiction.
We conclude that there exists evidence of the hearing examiner exceeding his
jurisdiction. That evidence vested the trial court with jurisdiction over the City’s petition
seeking to review the hearing examiner’s ruling. Thus, the order of the trial court
granting Hennsley’s plea to the jurisdiction of the court is reversed, and the cause is
remanded.
Brian Quinn
Chief Justice
7