Affirmed in Part, Vacated and Dismissed in Part, =
and=20
Majority and Concurring Opinions filed March 18, =
2008.
In The
Fourteenth=20
Court of Appeals
_______________
NO. 14-03-00399-CV
_______________
CITY OF HOUSTON, =
Appellant
V.
DONALD CLARK,=20
Appellee
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On Appeal from the 333rd District=20
Court
Harris County, =
Texas
Trial Court Cause No.=20
00‑20826
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C O N C U R R I N G O P I N =
I O=20
N
I agree with the =
disposition=20
reached by the Majority opinion, but for the reasons set forth=20
below.
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Declaratory Judgment Claims
The Majority opinion =
concludes=20
that the trial court lacked jurisdiction over the =
parties=3D declaratory judgment =
claims=20
because those claims were not within the scope of the =
City=3Ds right to appeal the =
hearing=20
examiner=3Ds decision under =
section=20
143.1016(j). However, this overlooks the facts that: (1) as =
recited=20
in the Majority opinion, the City=3Ds lawsuit in the =
trial court=20
not only appealed the hearing examiner=3Ds decision, but also =
sought=20
declaratory relief, i.e., as a separate claim from the =
relief it=20
sought in appealing the hearing examiner=3Ds decision; and (2) =
in addition=20
to filing a denial of the City=3Ds action to appeal =
the hearing=20
examiner=3Ds decision, Clark =
filed a=20
counterclaim for declaratory relief. Therefore, the=20
Majority=3Ds conclusion that the =
parties=3D claims for =
declaratory relief=20
were not within the City=3Ds limited right of =
appeal does=20
not dispose of those claims because they were asserted separately =
from the=20
City=3Ds claims regarding =
the=20
appeal.
As a preliminary =
matter,=20
because our disposition of the declaratory judgment issues in the=20
preceding appeal to this court was not overturned in the Supreme=20
Court=3Ds opinion, =
it=20
technically remains in effect. However, because our =
explanation for=20
dismissing the declaratory judgment issues in the preceding appeal =
relied,=20
in part, (unnecessarily) on our holding that the City had no right =
to=20
appeal, which was reversed, it would be prudent to reiterate the =
reasoning=20
that leads to the same conclusion on the declaratory judgment =
issues based=20
on the current circumstances.
Standing is a =
component of=20
subject matter jurisdiction that cannot be waived, and may be =
raised for=20
the first time on appeal by the parties or the court. =
Tex.=20
Ass=3Dn of Bus. v. Air =
Control=20
Bd., =
852=20
S.W.2d 440, 443-45 (Tex. 1993). Standing requires a real =
controversy to=20
exist between the parties that will actually be determined by the =
judicial=20
declaration sought. Tex. Workers=3D Comp. =
Comm=3Dn v. =
Garcia, 893 S.W.2d 504, =
517-18 (Tex.=20
1995). If a live controversy ceases to exist in a case, the =
parties=20
lack a legally cognizable interest in the outcome, or the=20
court=3Ds actions cannot =
affect the=20
rights of the parties, the case becomes moot. Pinnacle =
Gas=20
Treating, Inc. v. Read, 104 S.W.3d 544, 545 (Tex. 2003); =
Williams=20
v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). Courts have no=20
jurisdiction to render advisory opinions on moot =
controversies. =20
Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 =
(Tex.=20
2000); Nat=3Dl Collegiate Athletic =
Ass=3Dn v. =
Jones, 1 S.W.3d 83, 86 =
(Tex.=20
1999). The distinctive feature of an advisory opinion is =
that it=20
decides an abstract question of law without binding the =
parties. =20
Tex. Ass=3Dn of =
Bus., 852 S.W.2d at =
444. In=20
this context, the Declaratory Judgments Act is a procedural device =
for=20
deciding cases already within a court=3Ds jurisdiction, =
rather than a=20
legislative enlargement of the court=3Ds power that would =
permit the=20
rendition of advisory opinions. Id.
In this case, because =
the=20
appeal of the hearing examiner=3Ds decision will =
resolve the=20
dispute between the City and Clark with regard to =
Clark=3Ds suspension, that =
dispute=20
cannot be affected by any determination on the issues for which=20
declaratory relief was sought in this case by either party. =
There=20
is, thus, no live controversy between the City and Clark regarding =
his=20
suspension outside of that appeal, and the declaratory judgment =
rendered=20
by the district court in Clark=3Ds favor is purely=20
advisory. It is for this reason, rather than that relied =
upon in the=20
Majority opinion, that neither this court nor the district court =
has=20
jurisdiction to decide any of the declaratory judgment claims, and =
those=20
claims should be dismissed.
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Hearing Examiner=3Ds=20
Decision
Where, as in this =
case, a fire=20
fighter appeals a disciplinary decision to a hearing examiner =
rather than=20
to the Fire Fighters=3D and Police=20
Officers=3D Civil Service =
Commission (the=20
ACommission@), the hearing=20
examiner=3Ds decision is final =
and binding=20
on all parties, and the fire fighter automatically waives all =
rights to=20
appeal to a district court except as provided by subsection =
143.1016(j)=20
(Asubsection =
(j)@) of the code. =
Tex. Loc.=20
Gov=3Dt Code Ann. =
' 143.1016(c) (Vernon=20
2008). =
Under subsection (j), =
a=20
district court may hear an appeal of a hearing =
examiner=3Ds award only on the =
grounds=20
that the arbitration panel was without jurisdiction or exceeded =
its=20
jurisdiction or that the order was procured by fraud, collusion, =
or other=20
unlawful means. See id. ' 143.1016(j); see =
Clark,=20
197 S.W.3d at 324 (holding that the City has a right to appeal a =
hearing=20
examiner=3Ds decision, =
but the=20
appeal is restricted in scope by subsection (j)).
In this case, the =
City does not=20
contend that the hearing examiner=3Ds award was procured =
by fraud,=20
collusion, or other unlawful means, but argues that the hearing=20
examiner=3Ds decision can be =
reviewed for=20
whether the examiner was either without jurisdiction or =
abused=20
his authority. However, subjection (j) does not =
expressly=20
contain an abuse of authority standard, and we have previously =
recognized=20
that the case law is unsettled as to whether that standard applies =
to=20
subsection (j), and, if so, what it means. See Bradford =
v.=20
Pappillion, 207 S.W.3d 841, 843-45 (Tex. App.CHouston [14th Dist.] =
2006, no=20
pet.). However, in considering the scope of subsection (j), =
the=20
First Court Opinion in the preceding appeal in this case=20
stated:
[T]he City argued in =
its motion=20
for summary judgment that the hearing examiner had exceeded his =
authority=20
by ruling incorrectly on the motion to dismiss. That =
is, on=20
motion for summary judgment, the City argued that the hearing =
examiner=20
made the wrong decision, not that he had no power to =
make=20
that decision.
Consistent with =
section=20
143.1016(j), the City may not challenge the correctness of the =
hearing=20
examiner=3Ds decision. If =
the=20
hearing examiner had jurisdiction to rule on the motion to =
dismiss, that=20
ruling, whether right or wrong, is unassailable unless obtained by =
fraud=20
or some other unlawful means. Therefore, under ' 143.1016(j), the =
issue is not=20
whether he ruled correctly, but whether he had jurisdiction =
to rule=20
at all on the motion to dismiss.
City of =
Houston v. Clark, No. =
01-01-00828-CV, 2002 WL 31771188, at *3-4 (Tex. App.CHouston [1st Dist.] =
Dec. 12,=20
2002) (citations omitted). The Supreme Court=3Ds opinion similarly=20
noted:
The City claims its =
appeal fits=20
within Section 143.1016(j)=3Ds limited scope =
because the=20
hearing examiner acted without or exceeded his jurisdiction by =
erroneously=20
deciding that an acting fire chief is not authorized to suspend =
fire=20
department personnel.
* =20
* =20
* =
*
The City takes a much =
broader=20
view of the issues [than] the provision would allow to be raised =
on=20
appeal.
City of =
Houston, 197 S.W.3d at =
324. =20
Therefore, our review must be confined to the City=3Ds arguments that =
challenge the=20
hearing examiner=3Ds jurisdiction to =
rule on the=20
motion to dismiss at all (as contrasted from those that contend, =
in=20
effect, that the hearing examiner ruled incorrectly that the =
acting fire=20
chief lacked the necessary authority by misapplying applicable =
law).
The City first =
challenges the=20
hearing examiner=3Ds jurisdiction to =
rule on=20
Clark=3Ds motion to dismiss =
on the=20
ground that Clark waived his objection to the acting fire=20
chief=3Ds lack of authority =
to suspend=20
him by failing to include it as a basis for his appeal. =20
However, the City cites no authority providing that a fire fighter =
cannot=20
add to the grounds stated in his notice of appeal, and the hearing =
examiner=3Ds award=20
states:
A Motion to Dismiss =
was filed=20
on behalf of [Clark] following the hearing on the merits of the =
instant=20
matter. It was mutually agreed to by the parties that the =
[hearing examiner] should rule on the Motion to Dismiss, and upon =
the=20
merits of the instant matter.
(emphasis =
added). =20
Therefore, the City has not demonstrated that Clark waived his =
objection=20
to the acting chief=3Ds lack of authority =
to suspend=20
him (and the City does not assert that the hearing examiner would =
lack=20
jurisdiction over that issue for any other reason).
The City also =
challenges the=20
hearing examiner=3Ds jurisdiction to =
rule on the=20
motion to dismiss on the ground that it was outside the statutory =
scope of=20
appeal, which was limited to deciding whether the suspension was =
supported=20
by just cause, should be reduced, or should be reversed. =20
However, in support of this contention, the City states only that=20
AThe hearing examiner =
. . . had=20
no authority to rule on Clark=3Ds Motion to Dismiss =
without=20
absolute disregard of all applicable law, specifically City =
Ordinance=20
34-55 [pertaining to the appointment and authority of an acting =
HFD chief]=20
and Tex. Loc. Gov=3Dt Code, Section 34-55 =
[apparently an error, as no such section exists].@ Therefore, the =
City has=20
not demonstrated that a ruling on the motion to dismiss was =
outside the=20
statutory scope of appeal.
Because the =
City=3Ds remaining =
challenges to the=20
hearing examiner=3Ds jurisdiction to =
rule on the=20
motion to dismiss are all variations of its argument that the =
hearing=20
examiner
misapplied the law in =
ruling=20
incorrectly on that motion, we can not properly address =
them.
/s/ =20
Richard H. Edelman
Senior Justice
Judgment rendered and =
Majority=20
and Concurring Opinions filed March 18, 2008.
Panel consists of =
Justices=20
Frost, Guzman, and Edelman. (Frost, =
J.,=20
majority).
=20
See City of Houston v. Clark, 197 S.W.3d 314, 324 (Tex.=20
2006).
=20
Although no provision of the code refers to such a right of appeal =
by a=20
city, the Court=3Ds conclusion was =
based largely=20
on the City=3Ds contention, and the =
Court=3Ds concern, that =
construing the=20
code to foreclose such a right of appeal would constitute an=20
unconstitutional delegation of authority. See Clark, =
197=20
S.W.3d at 317, 320. In addition, the Court noted that if the =
right=20
of appeal in subsection (j) does not afford a city a meaningful =
review of=20
the merits of a decision, the delegation of grievance decisions to =
an=20
independent hearing examiner may itself raise constitutional=20
problems. Id. at 324.
It is not apparent =
how this=20
rationale fits with the Court=3Ds previous decision =
that the=20
Texas Constitution guarantees separation of powers only as between =
branches of state, not local, government. See City of =
Fort Worth=20
v. Zimlich, 29 S.W.3d 62, 72 (Tex. 2000). Moreover, in=20
construing the current code to provide the City this right of =
appeal, the=20
opinion construed a previous version of the statute to deny a =
police=20
officer or fire fighter that right, and, thus, in effect, to have =
the very=20
constitutional defect that the Court was construing the current =
statute to=20
avoid. See Clark, 197 S.W.3d at 321-25.
In this case, however, because the City =
has not=20
challenged the constitutionality of the scope of the right of =
appeal under=20
subsection (j), we need not address it further.
=20
See supra, footnote 2.
=20
We therefore do not address, expressly or impliedly, whether an =
acting=20
fire chief has the authority to issue a suspension, and, as =
indicated in=20
the preceding section, the trial court=3Ds declaratory judgment pertaining to =
that issue is=20
of no effect.
=20
See Tex. Loc. Gov=3Dt Code ' 143.010(b) (Vernon 2008) (requiring a =
fire=20
fighter=3Ds appeal to include the basis for the=20
appeal).
=20
See Tex. Loc. Gov=3Dt Code ' 143.016(f) (Vernon 2008) (stating that =
a hearing=20
examiner has the same duties and powers as the Commission); =
id.=20
' 143.118(a), (b) (stating that in a fire =
fighter=3Ds appeal to the Commission, the =
Commission shall=20
determine if just cause exists for the suspension, may order a =
reduction=20
in the period of suspension, and may reverse the department=20
head=3Ds decision and instruct the department =
head to=20
immediately restore the fire fighter to his prior position and =
repay him=20
any lost wages). The City does not contend that the granting =
of the=20
motion to dismiss is procedurally different from the reversal of a =
suspension. Nor does the City contend that a suspension =
could not be=20
reversed if the person imposing it lacked the authority to do=20
so.
=20
Senior Justice Richard H. Edelman sitting by=20
=
assignment. |