Opinion=20
Issued February 28, 2008
In The
Court of Appeals
For The
First District of =
Texas
NO. 01-06-00936-CV
__________
CITY =
OF HOUSTON,=20
Appellant
V.
ALAN =
HILDEBRANDT,=20
Appellee
On =
Appeal from=20
the 165th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2003-06809
O P I =
N I O=20
N
<=
/SPAN>The=20
City of Houston (=E2=80=9Cthe City=E2=80=9D) appeals the trial =
court=E2=80=99s judgment denying=20
its request for declaratory judgment and awarding Alan Hildebrandt =
$24,000=20
in statutory penalties. On =
appeal,=20
the City presents three issues, arguing that the trial court =
improperly:=20
(1) awarded statutory penalties to Hildebrandt because there is no =
evidence to support the award, (2)=20
denied its request for declaratory judgment, and (3) granted =
Hildebrandt=E2=80=99s=20
request for declaratory judgment. We affirm.
Background
<=
/SPAN>Following=20
surgery, Alan Hildebrandt, =
a fire=20
fighter with the Houston Fire Department, began using the sick =
leave that=20
he had accumulated over his 30 years working in a Fire Department=20
suppression unit. =
After being on sick leave for 90 consecutive days,=20
Hildebrandt was transferred =
from his=20
suppression unit to a position with a five-day work =
schedule. ![3DFootnote](3D"")
The parties agree that this =
transfer caused=20
Hildebrandt to utilize his =
sick leave=20
faster than when he was a member of the suppression =
unit.
<=
/SPAN>Hildebrandt=20
filed a step I grievance,
requesting that he be allowed to =
use his=20
sick leave on the same schedule as it was accrued. After his step =
I=20
grievance was denied, Hildebrandt=20
filed a step II grievance,
which=20
was also denied. He then =
submitted a=20
written request to appeal his step II grievance to an independent =
hearing=20
examiner.
After a hearing, the hearing =
examiner=20
ordered the City to restore =
Hildebrandt=E2=80=99s sick =
leave level to the=20
amount it would have been had he remained on a suppression =
unit.
<=
/SPAN>The=20
City appealed the hearing examiner=E2=80=99s award to a district =
court, asking for=20
a declaratory judgment that the City is not required to implement =
the=20
hearing examiner=E2=80=99s award.=20
Hildebrandt brought =
a counter=20
claim, asserting that he was owed statutory penalties that the =
City=20
incurred by intentionally failing to implement the hearing =
examiner=E2=80=99s=20
decision in a timely manner.
During opening statements in the =
trial=20
court, the City clarified that it was claiming that the hearing =
examiner acted=20
without or exceeded his jurisdiction in entering his award.=20
The trial court =
denied the=20
City=E2=80=99s declaratory judgment action and awarded Hildebrandt =
$24,000 on his=20
counter claim. The City now appeals.
Declaratory=20
Judgment
<=
/SPAN>In=20
its second issue, the =
City argues=20
that the trial court erred in denying its motion for declaratory =
judgment=20
=E2=80=9Cbecause the Fire Chief is statutorily entitled to assign =
members and to=20
make policy relating to absences from work.=E2=80=9D =
Standard of=20
Review
<=
/SPAN>We review declaratory judgments under =
the same standards as other judgments and =
decrees. Tex. Civ. Prac. & Rem. Code =
Ann.=20
=C2=A7=20
37.010 (Vernon=20
1997). We look to the =
procedure used=20
to resolve the issue at trial to determine the standard of review =
on=20
appeal. City of Galveston v. Giles, 902 S.W.2d 167, 170 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 1995, no =
writ). The=20
City=E2=80=99s motion for declaratory judgment required the trial =
court to=20
interpret the City=E2=80=99s rights and those of the hearing =
examiner under the=20
Local Government Code. Interpreting =
statutes is a=20
legal matter, subject to de novo review. =
Bragg v. Edwards =
Aquifer=20
Auth., 71 S.W.3d 729, =
734 (Tex.=20
2002). A trial court has no discretion when evaluating a question =
of law.=20
See=20
Walker v.=20
Packer, 827=20
S.W.2d 833, 840 (Tex. 1992). The overriding =
goal of=20
statutory=20
interpretation=20
is to determine the Legislature=E2=80=99s intent. Cont=E2=80=99l =
Cas. Co. v.=20
Downs, 81 S.W.3d 803, =
805 (Tex. 2002). In order to =
ascertain=20
legislative intent, we first look to the plain and common meaning =
of the=20
words used by the Legislature. Tex.=20
Gov=E2=80=99t Code Ann. =C2=A7 =
311.011 (Vernon =
2005);=20
Argonaut=20
Ins. Co. v. Baker, 87 S.W.3d 526, =
529 (Tex.=20
2002). It is a well-settled rule of statutory=20
construction that every word of a statute must be presumed to have =
been=20
used for a purpose. In re =
Bell, 91 S.W.3d 784, =
790 (Tex.=20
2002).=20
In =
ascertaining=20
legislative intent, we do not confine our review to isolated =
statutory=20
words, phrases, or clauses, but we instead examine the entire act. =
Meritor=20
Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 =
(Tex.=20
2001).
Analysis
<=
/SPAN>The City directs us to section 143.1095, =
which=20
states that the head of a fire department may transfer a fire fighter for =
numerous=20
reasons, including for =E2=80=9Cany other specified reason =
the department=20
head considers necessary.=E2=80=9D Tex. Local Gov=E2=80=99t Code=20
Ann. =
=C2=A7=20
143.1095(a)(6) =
(Vernon=20
2008). Thus, the City =
argues that the=20
trial court erred in denying its motion for declaratory judgment,=20
because the hearing examiner lacked=20
jurisdiction to enter an award which usurped the Fire =
Chief=E2=80=99s=20
statutorily prescribed authority to manage the Fire =
Department.=20
=
After=20
his step II grievance =
was denied,=20
Hildebrandt decided to appeal to an independent hearing examiner=20
pursuant to the =
provisions=20
of section 143.057. See Tex. Local Gov=E2=80=99t Code =
Ann. =C2=A7=20
143.129. Under subsection =
143.057(f),=20
the hearing examiner has the same duties and powers as the Fire =
Fighters=E2=80=99=20
Civil Service Commission. Tex.=20
Local Gov=E2=80=99t Code Ann. =C2=A7 143.057(f); see also City of =
Houston v.=20
Jackson,=20
192 S.W.3d 764, 768 (Tex.=20
2006). This includes the authority to =
determine whether=20
Chapter 143 and its rules are being obeyed. Tex. Local Gov=E2=80=99t Code =
Ann.=20
=C2=A7 =
143.009 (Vernon 2008). Therefore, hearing =
examiners=20
are given the power to apply, interpret, and enforce the rules =
that are=20
contained in the chapter that permits the Fire Chief to transfer =
fire=20
fighters. See Lindsey v. =
Fireman=E2=80=99s and=20
Policeman=E2=80=99s Civil Serv. Comm=E2=80=99n, 980 S.W.2d 233, =
236 (Tex.=20
App.=E2=80=94Houston [14th Dist.] 1998, pet. =
denied).
<=
/SPAN>Here,=20
the hearing examiner interpreted section 143.045 and ordered an =
award=20
based upon his interpretation; therefore, he acted within the =
jurisdiction=20
afforded him by the Local Government Code. We=20
hold that the trial court =
did not err=20
in denying the City=E2=80=99s request for declaratory judgment. =
<=
/SPAN>We=20
overrule the City=E2=80=99s second issue.
Sovereign=20
Immunity
<=
/SPAN>In=20
its third issue, the=20
City argues that the trial court improperly granted Hildebrandt=E2=80=99s =
suit for statutory=20
penalties because the claim was barred by sovereign =
immunity.
Specifically, the City asserts that =
Chapter 143=20
includes no enabling clause =
allowing=20
for judicial review of Hildebrandt=E2=80=99s claim for statutory =
penalties.
Standard of=20
Review
<=
/SPAN>As=20
with the City=E2=80=99s second issue,=20
we review=20
interpretation of the Local Government Code de novo. See =
Bragg, 71 S.W.3d at=20
734.=20
Additionally, the Texas Supreme Court has consistently held that =
penal=20
statutes should be strictly construed. See, =
e.g., =
Brown v. De La=20
Cruz, 156=20
S.W.3d 560, 565 (Tex. 2004). Statutes waiving sovereign immunity =
and=20
statutes waiving governmental immunity are =
similarly=20
construed. See, =
e.g., =
Wichita Falls =
State Hosp. v.=20
Taylor, 106 S.W.3d 692, =
696 (Tex.=20
2003). =E2=80=9C[A] statute shall =
not be=20
construed as a waiver of sovereign immunity unless =
the waiver=20
is effected by clear and unambiguous language.=E2=80=9D Tex. Gov=E2=80=99t Code =
Ann. =C2=A7 311.034=20
(Vernon Supp. 2007).
Analysis
<=
/SPAN>Hildebrandt responds to the =
City=E2=80=99s=20
argument by asserting that subsection 143.134(h) clearly and =
unambiguously=20
allows for a penalty to be pursued against the =
City.=20
Subsection 143.134(h) provides for a =
statutory=20
penalty as follows:
If the decision of =
the=20
commission=20
under Section 143.131 or the decision of a =
hearing=20
examiner under=20
Section 143.129 that has become final is favorable to a fire =
fighter, the=20
department head shall implement the relief granted to the fire =
fighter not=20
later than the 10th day after the date on which the decision was =
issued.=20
If the department head intentionally fails to implement the relief =
within=20
the 10-day period, the municipality shall pay the fire fighter =
$1,000 for=20
each day after the 10-day period that the decision is not yet=20
implemented.=20
Tex. Local Gov=E2=80=99t Code=20
Ann. =
=C2=A7=20
143.134(h).
<=
/SPAN>In=20
determining whether a statute affords a clear and unambiguous =
waiver of=20
immunity absent express language to that effect, one interpreting =
guideline=20
is that a statute must waive immunity =E2=80=9Cbeyond a =
doubt,=E2=80=9D such as =E2=80=9Cwhen=20
the provision in =
question=20
would be meaningless unless immunity were waived.=E2=80=9D See =
Wichita Falls=20
State Hosp, 106 S.W.3d at 697.
<=
/SPAN>Here, the mandatory =
penalty in=20
subsection=20
143.134(h) would be meaningless unless the =
municipality=E2=80=99s=20
immunity were waived. Therefore, because subsection 143.134(h) mandates that a municipality =
pay a=20
penalty for noncompliance with a hearing examiner=E2=80=99s =
decision after 10=20
days, there is a clear and unambiguous waiver of the =
municipality=E2=80=99s=20
immunity.
We hold that sovereign immunity did not =
bar=20
the trial court from =
determining whether =
Hildebrandt was=20
owed statutory penalties under subsection 143.134(h).
=
We overrule the City=E2=80=99s third =
issue.
Legal=20
Sufficiency
<=
/SPAN>In=20
its first issue, the City argues that the trial court erred in =
awarding=20
statutory penalties to Hildebrandt because the evidence is legally =
insufficient to support the trial court=E2=80=99s finding that the =
Fire Chief=20
intentionally failed to =
implement=20
the hearing examiner=E2=80=99s award.
Standard of=20
Review
<=
/SPAN>In an appeal of a =
judgment=20
rendered after a bench trial, the trial court=E2=80=99s findings =
of fact have the=20
same weight as a jury=E2=80=99s verdict, and we review the legal =
sufficiency of=20
the evidence used to support them just as we would review a =
jury=E2=80=99s=20
findings. Catalina v.=20
Blasdel, 881 S.W.2d 295, =
297 (Tex.=20
1994); In re=20
K.R.P., 80 S.W.3d 669, =
673 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2002, pet. denied). When =
challenged, a trial=20
court=E2=80=99s findings of fact are not conclusive if, as in the =
present case,=20
there is a complete reporter=E2=80=99s record. In re =
K.R.P., 80 S.W.3d at=20
673. =
When a=20
party who does not have the burden of proof at trial challenges =
the legal sufficiency of the =
evidence,=20
we consider all of the evidence in the light most favorable to the =
prevailing party, indulging every reasonable inference in that =
party=E2=80=99s=20
favor. Assoc. Indem. =
Corp. v. CAT=20
Contracting, Inc., 964 S.W.2d 276, =
285=E2=80=9386=20
(Tex. 1998). If there is any evidence of probative force to =
support the=20
finding, i.e., more than a mere scintilla, we will overrule the =
issue.=20
Haggar Clothing Co. v.=20
Hernandez, 164 S.W.3d 386, 388 (Tex.=20
2005).
Analysis
<=
/SPAN>Under=20
subsection 143.134(h), =E2=80=9C[i]f the department =
head=20
intentionally fails to implement the relief=E2=80=9D awarded to =
the fire fighter,=20
the municipality must pay the fire fighter statutory=20
penalties. Tex. Local Gov=E2=80=99t Code=20
Ann. =C2=A7 =
143.134(h). The City notes that =
=E2=80=9Cdepartment head=E2=80=9D=20
is defined in the Local Government Code as =E2=80=9Cthe chief or =
head of a fire or=20
police department or that person=E2=80=99s equivalent, regardless =
of the name or=20
title used.=E2=80=9D Tex. Local Gov=E2=80=99t Code=20
Ann. =C2=A7 =
143.003 (Vernon 2008). Therefore, the =
City argues=20
that, because there is no evidence that the Fire Chief knew of the =
award,=20
let alone intentionally failed to implement it, the trial court=E2=80=99s finding is =
legally=20
insufficient.
<=
/SPAN>We=20
rejected the identical argument in City of Houston v. =
Jackson. 135 S.W.3d 891, 898 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2004), overruled on other grounds, 192 S.W.3d 764 =
(Tex.=20
2006). =E2=80=9CIntent is =
generally a=20
question of fact,=E2=80=9D which =E2=80=9Cmay be proven by=20
circumstantial evidence.=E2=80=9D Id. Therefore, in =
conducting our=20
sufficiency review, we look to see whether there is more than a =
scintilla=20
of evidence, actual or circumstantial, that the Fire Chief =
intentionally=20
failed to implement the award within 10 days.
<=
/SPAN>Here,=20
Hildebrandt sent a letter to the City on February 12, informing it =
that=20
implementation of the award was five days past due, and that =
subsection=20
143.134(h) provides for a statutory penalty for noncompliance =
after 10=20
days. In the letter, Hildebrandt directed that the Fire Chief be =
provided=20
a copy of the letter to ensure timely implementation of the award. =
Nevertheless, the evidence shows that the City did not implement =
the award=20
until March 3, 34 days after the decision was issued. Therefore, =
we hold=20
that there was legally sufficient evidence that the Fire Chief=20
intentionally failed to implement the hearing examiner=E2=80=99s =
award within 10=20
days. See =
Haggar=20
Clothing, 164 S.W.3d at 388.
<=
/SPAN>We=20
overrule the City=E2=80=99s first issue.Conclusion
=
We=20
affirm the judgment of the trial court.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; George=20
C. Hanks, Jr.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of =
Justices=20
Nuchia, Hanks, and=20
Higley. |