BLAYNE D. WILLIAMS, SR., Appellant
CITY OF AUSTIN, Appellee
Appeal from the 98th District Court Travis County, Texas
Trial Court Cause No. D-1-GN-15-002351
consists of Justices Christopher, Jewell, and Bourliot.
Frances Bourliot Justice.
D. Williams, Sr. appeals the trial court's determination
that it did not have subject matter jurisdiction over
Williams's appeal from an independent hearing
examiner's award. The independent hearing examiner had
determined that the chief of police for the City of Austin
had a valid reason to bypass Williams three times for
promotion within the police department. In three issues,
Williams contends that the trial court erred in granting the
City's plea to the jurisdiction. We affirm.
joined the Austin Police Department in 2006 as a civilian
employee and became a commissioned officer in June 2008. In
February 2011, he was involved in an off-duty incident at an
H.E.B. grocery store that allegedly involved a physical
altercation with an H.E.B. employee. Williams agreed to serve
a 90-day suspension and a one-year probation period related
to this incident. Subsequently, in February 2014, Williams
sought and received an expunction order from a district
court, requiring the expunction of certain information
pertaining to the H.E.B. incident.
August 2013, Williams passed the written examination for
promotion to the rank of corporal or detective. His name
therefore was placed on the promotion eligibility list.
However, on October 2, 2013, Williams was placed on
indefinite suspension upon being charged with dishonesty and
neglect of duty based on another off-duty
incident. This second incident occurred while
Williams was working a department-approved security job at a
hotel and involved an allegation that Williams failed to
report that a crime had occurred at the hotel and failed to
secure possible evidence of that crime. Williams appealed his
indefinite suspension to an independent hearing examiner.
5, 2014, while his appeal of the indefinite suspension was
pending, Williams's name had risen to the top of the
promotion eligibility list. At that time, there were three
open positions to be filled from the list. Under Texas Local
Government Code section 143.036(f), unless the department
head has a "valid reason" for not appointing the
person at the top of the eligibility list when a position
becomes open, that person must be appointed to fill the
vacancy. Tex. Loc. Gov't Code § 143.036(f). Austin
Police Department Policy 919 also specifically authorizes the
Austin Chief of Police to bypass candidates on a promotional
eligibility list for a "valid
Police Chief Art Acevedo decided to bypass Williams three
times and instead promoted three other officers to fill the
vacancies. If a candidate for promotion has been bypassed
three times and the bypasses are not overturned on appeal,
the person's name is removed from the eligibility list.
Id. § 143.036(g). Acevedo explained his
decision to Williams in part by citing Williams's
indefinite suspension and prior disciplinary history.
Williams also appealed this decision to an independent
the pendency of William's appeal of the promotional
bypass, the hearing examiner in Williams's appeal of his
indefinite suspension issued his opinion. In the opinion, the
hearing examiner upheld the dishonesty charge but not the
neglect of duty charge and reduced the discipline from an
indefinite suspension to a 15-day suspension. Williams
thereafter returned to active duty but not at a higher rank.
hearing examiner on Williams's appeal of the promotional
bypass, I.B. Helburn, issued his opinion on June 8, 2015. The
parties had stipulated the issue in the appeal as whether
Chief Acevedo had a valid reason to bypass Williams three
times for promotion to the rank of detective or corporal.
Helburn determined that Acevedo in fact had a valid reason to
bypass Williams and denied the appeal. Helburn noted in the
opinion that the promotional bypass memorandum Acevedo gave
to Williams contained information regarding the H.E.B.
incident that should have been expunged pursuant to the
district court's expunction order. He further pointed
out, however, that Acevedo "testified, credibly"
that in making the bypass determination, he considered the
indefinite suspension itself and the related policy
violations. Helburn then concluded that the information that
had been improperly included in the bypass memorandum
"cannot be said to have influenced the decision to
thereafter filed an appeal of Helburn's decision in the
court below. In his petition, Williams makes a number of
allegations about the process, most notably for our purposes
that a city attorney impermissibly provided Helburn with
evidence prior to the hearing, the Meet and Confer Agreement
between the City and the Austin Police Association preempted
certain portions of the Local Government Code and internal
department policies on which Helburn based his decision, and
information that should have been expunged was improperly
before Helburn. The City filed a plea to the jurisdiction
challenging the trial court's subject matter jurisdiction
and presenting evidence on the jurisdictional issues. The
trial court granted the plea and dismissed the case.
a trial court has subject matter jurisdiction is a question
of law we review de novo. City of Houston v.
Williams, 353 S.W.3d 128, 133-34 (Tex. 2011). When
considering a plea to the jurisdiction, our analysis begins
with the live pleadings. Heckman v. Williamson Cty.,
369 S.W.3d 137, 150 (Tex. 2012). We first determine if the
pleader has alleged facts that affirmatively demonstrate the
court's jurisdiction to hear the cause. Tex.
Dep't. of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004). In doing so, we construe the
pleadings liberally in favor of the plaintiff, and unless
challenged with evidence, we accept all allegations as true.
Id. at 226-27. We may also consider evidence
submitted to negate the existence of jurisdiction, and we
must consider such evidence when necessary to resolve the
jurisdictional issues. Heckman, 369 S.W.3d at 150.
We take as true all evidence favorable to the nonmovant and
indulge every reasonable inference and resolve any doubts in
favor of the nonmovant. Miranda, 133 S.W.3d at 228.
The plea must be granted if the plaintiff's pleadings
affirmatively negate the existence of jurisdiction or if the
defendant presents undisputed evidence that negates the
existence of the court's jurisdiction. Heckman,
369 S.W.3d at 150. If the evidence creates a fact question
about a jurisdictional issue that overlaps the merits, then a
plea to the jurisdiction should not be granted.
Miranda, 133 S.W.3d at 227-28; Gish v. City of
Austin, No. 03-14-00017-CV, 2016 WL 2907918, at *1- 2
(Tex. App.-Austin May 11, 2016, no pet.) (mem. op.).
municipal civil service promotional bypass cases, a police
officer may appeal to the Fire Fighters' and Police
Officers' Civil Service Commission or to an independent
hearing examiner. See Tex. Loc. Gov't Code
§§ 143.010 (commission), 143.057(a) (hearing
examiner). By choosing a hearing examiner, Williams waived
his right to appeal to the judicial system unless the hearing
examiner "was without jurisdiction or exceeded [his]
jurisdiction or . . . the order was procured by fraud,
collusion, or other unlawful means." Id. §
143.057(j); seealso Gish, 2016 WL 2907918,
at *2. "[A] hearing examiner exceeds his jurisdiction
when his acts are not authorized by the [Fire Fighters and
Police Officers Civil Service] Act or are contrary to it, or
when they invade the policy-setting realm protected by the
nondelegation doctrine. City of Pasadena v. Smith,
292 S.W.3d 14, 21 (Tex. 2009). Hearing examiners have the
same duties and powers as commissions in this type of