Miller v. City of Houston [and its police chief] (Tex.App.- Houston [14th Dist.] Mar. 23, 2010)(Mirabal)
(city civil service, disciplinary proceeding appeal, plea the jurisdiction)(hearing examiner was not authorized to
impose a suspension of more than fifteen days)
The hearing examiner in this case was authorized to reduce Miller’s indefinite
suspension to a temporary suspension, but he was not authorized to impose a
temporary suspension of more than fifteen days. Because the examiner exceeded his
jurisdiction in effectively imposing a 92-day suspension, the trial court has jurisdiction
over the case pursuant to Texas Local Government Code section 143.1016(j).
We sustain Miller’s first issue and hold that the trial court erred in granting the City’s
plea to the jurisdiction. We therefore reverse the trial court’s judgment and remand this
case to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED: Opinion by Justice Mirabal
Before Chief Justice Hedges, Justices Anderson and Mirabal
14-08-01018-CV Lt. Ken Miller v. City of Houston and Harold Hurtt
Appeal from 215th District Court of Harris County
Trial Court Judge: Levi James Benton
In this case arising from the disciplinary actions taken against a police officer, we are asked if an
independent hearing examiner exceeded his jurisdiction in effectively reducing an indefinite suspension to a
92-day suspension. Because the hearing examiner was not authorized to impose a suspension of more than
fifteen days, we reverse the trial court’s judgment and remand the case.
I. Factual and Procedural Background
In 2006, a coworker alleged that Lieutenant Kenneth Miller of the City of Houston Police Department had
sexually harassed her. Based on the investigation of the allegations and on his determination that Miller was
untruthful during the investigation, Chief of Police Harold L. Hurtt indefinitely suspended Miller on March 8,
2007. Hurtt concluded that Miller had violated specific provisions of General Order 200-08, dated September
28, 2005, addressing officers’ “personal conduct,” “sound judgment,” “truthfulness,” “obedience to laws and
rules,” and “supervisory conduct.”
Miller filed a timely appeal to an independent hearing examiner, and the case was heard by Richard F.
Dole Jr., who issued a written decision on June 7, 2007. Dole’s ruling is divided into four sections labeled
“Background,” “Positions of the Parties,” “Analysis,” and “Decision.” The conclusion of the Analysis section
and the complete Decision section are as follows:
During the hearing both parties emphasized that the Ap[p]ellant’s truthfulness was of major concern. In
resolving that concern, the Chief’s letter indicates that the Chief gave significant weight to the polygraph
examination and to the polygraph examiner’s report . . . . However, the record in this proceeding establishes
that both the examination process and the examination report are not entitled to significant weight. Just cause
was not shown for the Appellant’s indefinite suspension. However, the award of back pay and lost benefits are
not warranted by the hearing record.
(1) The Appellant’s indefinite suspension is vacated.
(2) The City is to restore the Appellant’s employment.
(3) The parties are to pay the expenses of this proceeding as provided by Texas law.
Miller appealed the decision to a Harris County district court, naming Hurtt and the City of Houston
(collectively, “the City”) as defendants. As relevant to this appeal, Miller alleged that the hearing examiner,
having held that Miller be restored to his employment, lacked or exceeded jurisdiction to exclude Miller’s
recovery of back pay and lost benefits. See Tex. Loc. Gov’t Code Ann. § 143.1016(j) (Vernon 2008).
The City filed an original and a first amended plea to the jurisdiction. On the day the plea was heard, Miller
filed a first amended petition asserting additional claims for declaratory relief. Five days later, the City filed a
second amended plea to the jurisdiction in which it asserted that Miller’s suit was not timely filed, and the trial
court granted Miller leave to file a second amended petition. Before the second amended plea was heard,
however, the trial court granted the City’s first amended plea to the jurisdiction and dismissed all of Miller’s
claims. This appeal timely ensued.
II. Issues Presented
Miller presents five issues for review. In his first issue, he argues that the district court erred in granting
the City’s plea to the jurisdiction because jurisdiction over the parties and the subject matter of this cause of
action is proper under Texas Local Government Code section 143.1016(j). Because this issue is dispositive of
the appeal, we do not reach Miller’s remaining issues. See Tex. R. App. P. 47.1.
III. Standard of Review
A trial court must determine at its earliest opportunity whether it has the constitutional or statutory authority
to decide the issues before it because if it lacks jurisdiction over the subject matter of the case, its judgment is
void. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (citing Austin & N.W.R. Co. v.
Cluck, 97 Tex. 172, 77 S.W. 403, 405 (1903)); Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985) (per
curiam). Whether a trial court has jurisdiction is a question of law that we review de novo. Id. Where, as here,
a plea to the jurisdiction challenges the pleadings, we construe the pleadings liberally in the pleader’s favor
and look to the pleaders’ intent when determining if the facts alleged affirmatively demonstrate the court’s
jurisdiction to hear the cause. Id. (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.
A. Applicable Law
Fire fighters and police officers employed by municipalities covered by the Civil Service Act, codified in
chapter 143 of the Local Government Code, generally have permanent employment tenure as public
servants. Tex. Loc. Gov’t Code Ann. § 143.001 (Vernon 2008). Nevertheless, the Act authorizes three
types of suspensions from employment as a police officer.
First, the head of the police department may impose an involuntary disciplinary suspension for “a
reasonable period not to exceed 15 days.” Id. § 143.117(a). Such a suspension may be appealed to the Fire
Fighters’ and Police Officers’ Civil Service Commission (“the commission”) or to an independent hearing
examiner. See § 143.118 (appeal to the commission); id. § 143.1016 (appeal to an independent hearing
examiner). The hearing examiner and the commission have the same duties and powers. Id. § 143.1016(f).
The selected entity determines if “just cause” exists for the suspension, and may order the period of
suspension reduced or instruct the department head to restore the officer to his prior position and repay lost
wages. Id. § 143.118.
Second, the department head may “indefinitely suspend” a police officer for violating a civil service rule.
Id. § 143.119(a). Indefinite suspension is the equivalent of termination, and like a disciplinary suspension, it
may be appealed to the commission or to an independent hearing examiner. Id. §§ 143.106, 143.119. In
issuing a decision in such an appeal, the commission or hearing examiner must state whether the officer is
permanently dismissed, temporarily suspended, or restored to his former position. Id. § 143.120(c). An officer
may be suspended or dismissed only after a finding that the specific charges against him are true. Id. §
Third, the department head may allow an officer faced with indefinite suspension the opportunity to remain
employed by accepting a voluntary suspension of sixteen to ninety calendar days with no right of appeal. See
id. § 143.119(f). Because no such offer was extended and accepted by Miller, he retained his right to appeal.
A hearing examiner’s award is appealable to a district court only on the grounds that the examiner “was
without jurisdiction or exceeded [his or her] jurisdiction or that the order was procured by fraud, collusion, or
other unlawful means.” Id. § 143.1016. “A hearing examiner exceeds his jurisdiction when his acts are not
authorized by the 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).
B. Nature of Miller’s Allegations
Miller’s pleadings and the City’s plea to the jurisdiction offer two different characterizations of the examiner’
s order. Miller pleaded that because the hearing examiner vacated Miller’s indefinite suspension and restored
him to his former employment, the examiner exceeded his jurisdiction in denying Miller recovery of back pay
and lost benefits. See Tex. Loc. Gov’t Code Ann. §§ 143.120(d); 143.1215 (providing that an officer restored
to employment is entitled to full compensation for the actual time lost as a result of the suspension). But the
City reasons that because an officer does not earn or accrue wages or benefits while suspended, id. § 143.122
(e), and the examiner withheld an award of back pay, the examiner “ruled ultimately that Miller could keep his
job, but that the Chief had just cause to discipline Miller, and affirmed a suspension for approximately 92 days.”
 We agree with the City’s construction of the hearing examiner’s order. The question to be resolved is
whether the hearing examiner exceeded his jurisdiction by reforming an indefinite suspension to a temporary
suspension of more than ninety days.
The Texas Supreme Court answered this question in City of Waco v. Kelley, 53 Tex. Sup. Ct. J. 338, 2010
WL 571974 (Tex. Feb. 19, 2010). In Kelley, an assistant chief of police with the same appellate rights as a
classified police officer appealed an indefinite suspension, and the hearing examiner reduced the suspension
to 180 days, reinstated the officer at a reduced rank, and ruled that he could recover his lost wages and
benefits. Id. 2010 WL 571974, at *1. The court noted that a hearing examiner is authorized to reduce the
period of an officer’s suspension. Id., 2010 WL 571974, at *1 (citing Tex. Loc. Gov’t Code Ann. § 143.053(f));
see also Tex. Loc. Gov’t Code Ann. § 143.118(b) (employing identical language in section applicable to
officers employed by a municipality with a population of at least 1.5 million). But the court further observed
that the Act authorizes a department head to impose involuntary suspension only for “‘a reasonable period not
to exceed 15 calendar days or for an indefinite period.’” Id., 2010 WL 571974, at *7 (citing Tex. Loc. Gov’t
Code Ann. § 143.052(b)); see also Tex. Loc. Gov’t Code Ann. § 143.117(a) (authorizing the department head
of a larger municipality to suspend an officer “for a reasonable period not to exceed 15 days”); Tex. Loc. Gov’t
Code Ann. § 143.119(a) (authorizing the department head of a larger municipality to indefinitely suspend an
officer). The court explained that when a hearing examiner finds the charges against an officer are true, the
examiner’s jurisdiction is limited “to imposing a dismissal from the department, imposing a temporary
suspension of fifteen days or less, or restoring the officer’s former position or status . . . together with wages
and benefits lost as a result of the suspension.” Id., 2010 WL 571974, at *8; see also id., 2010 WL 571974, at
*9 (“[T]he Act does not authorize a hearing examiner to both ‘restore’ an officer while at the same time
suspending the officer, even if the officer’s suspension is reduced from that imposed by the department
head.”). The court concluded that although the hearing examiner did not exceed his jurisdiction by reducing
Kelley’s indefinite suspension to a temporary one, he exceeded his jurisdiction by imposing a temporary
suspension of more than fifteen days.
The rationale and holding of Kelley apply to the facts presented here. As in Kelley, the officer in this case
was indefinitely suspended. In both cases, the officer appealed to an independent hearing examiner. In
Kelley, the hearing examiner expressly found the charges against the officer to be true, and in this case, the
hearing examiner impliedly found at least some of the charges against the officer to be true. In Kelley, as
here, the examiner effectively reinstated the officer and reduced the indefinite suspension to a temporary
suspension of more than fifteen days. See id., 2010 WL 571974, at *5 (“By reducing the suspension, the
hearing examiner effectively reinstated Kelley to the police force.”). And just as the court in Kelley
concluded that the hearing examiner exceeded his jurisdiction, we must conclude that the hearing examiner in
this case similarly exceeded his jurisdiction.
The hearing examiner in this case was authorized to reduce Miller’s indefinite suspension to a temporary
suspension, but he was not authorized to impose a temporary suspension of more than fifteen days. Because
the examiner exceeded his jurisdiction in effectively imposing a 92-day suspension, the trial court has
jurisdiction over the case pursuant to Texas Local Government Code section 143.1016(j).
We sustain Miller’s first issue and hold that the trial court erred in granting the City’s plea to the
jurisdiction. We therefore reverse the trial court’s judgment and remand this case to the trial court for further
proceedings consistent with this opinion.
/s/ Margaret Garner Mirabal
Panel consists of Chief Justice Hedges, Justice Anderson, and Senior Justice Mirabal.*
 Chapter 143 contains some statutes that generally apply to all covered municipalities and some that apply only to
municipalities with populations of at least 1.5 million. Population is determined by the most recent federal decennial census or,
if more recent, the state demographer’s annual population estimate. Id. § 143.02. Because Miller was employed by the City of
Houston Police Department, we apply the statutes governing employees of municipalities having populations of at least 1.5
million as well as those of general application unless specifically excluded. Id. §143.101. The 2000 federal census lists the
population of Houston as 1,953,631. U.S. Census Bureau, Census 2000, American FactFinder, Geographic Comparison Table,
Texas – Place, Summary File 1, http://factfinder.census.gov/servlet/GCTTable?_bm=y&-geo_id=04000US48&-
 Id. § 143.052.
 Hurtt specified that Miller was suspended “as of the close of business” on March 8, 2007; Dole issued his decision 92 days
 In his written decision, the examiner did not expressly address the underlying allegations of sexual harassment, but only
stated the parties’ positions on the subject. The examiner focused his “Analysis” on Hurtt’s conclusion that Miller was untruthful
during a polygraph examination and he concluded, “Just cause was not shown for the Appellant’s indefinite suspension.
However, the award of back pay and lost benefits are not warranted by the hearing record.” His attempt to effectively impose a
92-day suspension implies that he found charges to be true.
 Although the hearing examiner instructed the City to “restore” Miller’s employment, the terms “restore” and “reinstate” have
different meanings. See Tex. Loc. Gov’t Code Ann. § 143.120(d) (“If the suspended . . . officer is restored to the position or class
of service from which the person was suspended, the department head shall immediately reinstate the person as ordered, and
the person is entitled to full compensation . . . for the actual time lost as a result of the suspension . . . .”) (emphasis added). A
hearing examiner is not authorized both to “restore” an officer while at the same time suspending the officer. See Kelley, 2010
WL 571974, at *9.
* Senior Justice Margaret Garner Mirabal sitting by assignment.