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Williams v. City of Austin

Court of Appeals of Texas, Fourteenth District

July 18, 2019


          On Appeal from the 98th District Court Travis County, Texas Trial Court Cause No. D-1-GN-15-002351

          Panel consists of Justices Christopher, Jewell, and Bourliot.


          Frances Bourliot Justice.

         Blayne 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.[1]


         Williams 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.[2]

         In August 2013, Williams passed the written examination for promotion to the rank of corporal or detective.[3] 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.[4] 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.

         By May 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 reason."[5]

         Austin 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 hearing examiner.

         During 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.

         The 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 bypass" Williams.

         Williams 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.

         Governing Law

         Whether 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.).

         In 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 ...

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