                            In the
                       Court of Appeals
               Second Appellate District of Texas
                        at Fort Worth
                      ___________________________
                           No. 02-18-00131-CV
                      ___________________________

                    CITY OF FORT WORTH, Appellant

                                      V.

                         SHEA O’NEILL, Appellee



                   On Appeal from the 342nd District Court
                           Tarrant County, Texas
                       Trial Court No. 342-292450-17


Before Gabriel and Kerr, JJ.; and Michael Massengale (Former Justice, Sitting by
                                  Assignment)
                   Memorandum Opinion by Justice Kerr
                           MEMORANDUM OPINION

        The Fort Worth Fire Department indefinitely suspended firefighter Shea

O’Neill from his job with the department. O’Neill appealed that decision to a hearing

examiner, who reversed the suspension and reinstated him as a firefighter. The City of

Fort Worth appealed the hearing examiner’s decision to the district court, which

granted O’Neill’s plea to the jurisdiction and dismissed the case for lack of subject-

matter jurisdiction. The City has now appealed to us, contending in a single issue that

the district court had jurisdiction under the Civil Service Act and thus erred by

granting O’Neill’s jurisdictional plea. We will affirm in part and reverse and remand in

part.

                                     Background

        In April 2015, O’Neill attended a football scrimmage at Texas Christian

University with his seven-year-old twin sons and their eight-year-old friend. At the

time, O’Neill was in his early 40s and on occupational leave from the fire department

because of a work-related injury to his left shoulder.

        James Woods, a retiree in his late 70s, and his wife were also at the scrimmage.

The Woodses claimed that the children were blocking their view of the game;

eventually, Woods stood up, approached the boys, and shouted and cursed at them.

O’Neill stepped in and confronted Woods. O’Neill then struck Woods with his left

hand, and Woods fell to his knees. Woods sustained facial injuries, several cracked

and broken teeth, and a bloody nose.

                                            2
      After learning about and investigating the incident, the fire chief found that

O’Neill had violated several fire-department rules and regulations and indefinitely

suspended him (that is, terminated his employment) in July 2015. 1 Among other

findings, the chief found by a preponderance of the evidence that O’Neill “sucker

punched” Woods while Woods was seated; O’Neill’s hitting Woods was unjustified;

O’Neill hit Woods hard enough to bloody his nose and “chip and crack” his teeth; the

strike left Woods with a swollen face, headaches, memory loss, and medical and dental

costs; and O’Neill was untruthful during the investigation in claiming that he struck

Woods to defend the children.

      O’Neill appealed the fire chief’s indefinite-suspension decision to a hearing

examiner, who held a two-day evidentiary hearing in December 2016. In May 2017,

she issued a 45-page decision in which she found that the evidence did not “support

findings or conclusions that it was more probable than not that [O’Neill] received due

process in the [Fort Worth Fire Department] Professional Standards investigation or

that he was untruthful in his statements to Professional Standards.” She further found

that the evidence did not support the fire chief’s conclusions that O’Neill was

untruthful in claiming that “the physical contact was in the defense of his children”;

that O’Neill struck Woods after Woods sat down and looked away; and that the


      1
       O’Neill was also arrested and charged with injury to the elderly, a felony
offense. See Tex. Penal Code Ann. § 22.04. The case was tried in June 2016, ending
with a hung jury.


                                          3
“slap” was of sufficient force to knock Woods to his knees or cause Woods’s injuries.

Based on her findings, the hearing examiner granted O’Neill’s appeal and reinstated

him with back pay and benefits.

       The City appealed the hearing examiner’s decision to district court, alleging that

the district court had jurisdiction to consider the appeal for two reasons: (1) the

hearing examiner’s decision was procured by unlawful means because she considered

evidence not admitted at the hearing and (2) the hearing examiner exceeded her

jurisdiction because she concluded that the fire department’s due-process violations

compelled her to reinstate O’Neill. See Tex. Loc. Gov’t Code Ann. § 143.057(j).

O’Neill filed a plea to the jurisdiction arguing that the trial court lacked subject-matter

jurisdiction. The district court granted the plea and dismissed the City’s claims.

                         Appeals under the Civil Service Act

      Chapter 143 of the Texas Local Government Code—commonly referred to as

the Civil Service Act—governs the civil-service employment of firefighters and police

officers in those Texas municipalities (like Fort Worth) that have adopted the Act. See

generally id. §§ 143.001–.403. In a civil-service disciplinary case yielding (among other

things) an indefinite suspension, a firefighter may appeal either to the municipality’s

commission or to an independent hearing examiner. See id. §§ 143.010 (outlining

commission-appeal procedure), 143.053 (discussing disciplinary-suspension appeals to

commission), 143.057(a) (permitting appeal to an independent hearing examiner



                                            4
instead of to commission). Here, O’Neill chose the hearing-examiner route.2 Hearing

examiners have the same duties and powers as the commission, id. § 143.057(f), which

include conducting the hearing fairly and impartially, rendering a just and fair decision,

and considering only the evidence submitted at the hearing. Id. § 143.010(g); see also

Smith, 292 S.W.3d at 20 (“[Section 143.010(g)] both confers and limits the power of a

commission and a hearing examiner. It mandates that a decision be made on evidence

submitted at the hearing.”); see also Tex. Loc. Gov’t Code Ann. § 143.053(d)

(prohibiting commission from considering evidence that was not presented at the

hearing).

       The Civil Service Act permits a hearing examiner to (1) permanently dismiss a

suspended firefighter or police officer from the department; (2) temporarily suspend

an already-suspended firefighter or police officer from the department; or (3) restore a

suspended firefighter or police officer to his “former position or status in the

department’s classified service” with back pay and benefits for the period during

which he was suspended. Tex. Loc. Gov’t Code Ann. § 143.053(e), (f); see id.

§ 143.057(f). A hearing examiner can suspend or dismiss a firefighter or police officer

“only for violation of civil service rules” and only after finding “the truth of the

specific charges against [him].” Id. § 143.053(g); see id. § 143.057(f).

       2
         An independent hearing examiner is “often perceived to present less risk of
pro-employer bias than the municipality’s civil service commission.” Bracey v. City of
Killeen, 417 S.W.3d 94, 99 (Tex. App.—Austin 2013, no pet.); see City of Pasadena v.
Smith, 292 S.W.3d 14, 15 & n.8 (Tex. 2009).


                                              5
       A hearing examiner’s decision is “final and binding on all parties.” Id.

§ 143.057(c). A party may appeal to the district court, but “[a] district court may hear

an appeal of a hearing examiner’s award only on the grounds that the [hearing

examiner3] was without jurisdiction or exceeded its jurisdiction or that the order was

procured by fraud, collusion, or other unlawful means.”4 Id. § 143.057(c), (j). As

noted, the City appealed the hearing examiner’s decision to district court on the

grounds that (1) the hearing examiner’s decision was procured unlawfully because she

relied on evidence outside the hearing, and (2) the examiner exceeded her jurisdiction

to the extent she concluded that the fire department’s due-process violations

compelled her to reinstate O’Neill. O’Neill challenged both of these jurisdictional

bases in his plea to the jurisdiction, which the trial court granted. The City challenges

this ruling on appeal.

                                  Standard of Review

       We review de novo a trial court’s ruling on a plea to the jurisdiction. See Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (op. on reh’g); see

also State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322,

327 (Tex. 2002) (“Whether a trial court has subject-matter jurisdiction is a legal

       Although the statute uses the term “arbitration panel” rather than “hearing
       3

examiner,” the supreme court has held that the term “arbitration panel” includes a
hearing examiner. Smith, 292 S.W.3d at 19.
       4
        Municipalities, not just firefighters and police officers, also enjoy the Act’s
limited right to appeal hearing-examiner decisions to district court. See id. at 17; City of
Houston v. Clark, 197 S.W.3d 314, 317–24, 317 n.4 (Tex. 2006).

                                             6
question that we review de novo.”). A plaintiff must plead facts that affirmatively show

trial-court jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,

446 (Tex. 1993). We construe the pleadings liberally in the plaintiff’s favor, accept all

factual allegations as true, and look to the plaintiff’s intent. Heckman v. Williamson Cty.,

369 S.W.3d 137, 150 (Tex. 2012).

       But if a jurisdictional plea challenges the existence of jurisdictional facts, we

consider relevant evidence submitted by the parties when necessary to resolve the

jurisdictional issues raised, taking as true all evidence favorable to the nonmovant,

indulging every reasonable inference and resolving any doubts in the nonmovant’s

favor. Miranda, 133 S.W.3d at 227–28. If the evidence creates a fact question regarding

the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction,

and the fact issue will be resolved by the factfinder. Id. If, however, the relevant

evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the

trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.

       A plaintiff need not prove its claim in order to prove jurisdiction. See State v.

Lueck, 290 S.W.3d 876, 884 (Tex. 2009). But if the evidence creates a fact question

about a jurisdictional issue that overlaps the merits, then the court cannot grant a plea

to the jurisdiction. Miranda, 133 S.W.3d at 227–28.

                             Procured by Unlawful Means

       In support of its appellate issue, the City first asserts that the hearing

examiner’s decision was procured by unlawful means because she relied on evidence

                                              7
not presented at the hearing—specifically, her independent Internet research on the

side effects of aspirin and Lipitor, both of which Woods testified to taking daily.

According to the hearing examiner’s research, both medications can cause “unusual

bleeding,” and Lipitor can “specifically cause nosebleed.”

      As noted, a hearing examiner’s decision must be made on evidence submitted

at the hearing. See Tex. Loc. Gov’t Code Ann. §§ 143.010(g), .053(d); Smith,

292 S.W.3d at 20. Accordingly, when a commission or a hearing examiner has

considered evidence obtained outside the hearing, courts have concluded that the

resulting order was procured unlawfully. See, e.g., Gish v. City of Austin, No. 03-14-

00017-CV, 2016 WL 2907918, at *2–3 (Tex. App.—Austin May 11, 2016, no pet.)

(mem. op.) (reversing grant of jurisdictional plea because there was a fact question

about whether hearing examiner considered as evidence document attached to

postsubmission brief, even though that document was not referenced in the

examiner’s written decision); Steubing v. City of Killeen, 298 S.W.3d 673, 674–75 (Tex.

App.—Austin 2009, pet. denied) (stating that no party contested the district court’s

determination that hearing examiner’s decision was procured by unlawful means after

“the examiner stated that when making his determination, he sua sponte considered

various psychological studies and empirical studies that had not been admitted into

evidence”); Firemen’s & Policemen’s Civil Serv. Comm’n of City of Galveston v. Bonds,

666 S.W.2d 242, 244–45 (Tex. App.—Houston [14th Dist.] 1984, writ dism’d) (stating

that “[a]ny evidence received outside the bounds set by the statute is illegal, and

                                           8
destroys any presumption that the [c]ommission’s order is valid” and holding that

even though substantial evidence supported the commission’s decision to suspend the

officer, the decision must be reversed because the commission considered evidence

outside the hearing when the commission was given a packet of materials before the

hearing that contained a least one sworn witness statement); cf. Richardson v. City of

Pasadena, 513 S.W.2d 1, 3–4 (Tex. 1974) (setting aside commission’s ruling after

determining that commission’s posthearing receipt, reading, and use of three affidavits

that “bore directly on the essential fact issue in the case” without notice to the police

officer violated the officer’s procedural due-process rights). Relying on these cases,

the City contends that because the hearing examiner relied on an extraneous source

regarding Woods’s medications’ side effects, her decision was procured by unlawful

means.

      The City’s argument hinges on a single sentence in the “Testimony at the

Appeal Hearing” section of the hearing examiner’s opinion: “Woods admitted that he

took aspirin every day, as well as Lipitor, both of which may cause unusual bleeding;

Lipitor   may    also    specifically   cause   nosebleed.    See    PubMed      Health,

www.ncbi.nim.nih.gov/pubmedhealth/blog/2015/US National Library of Medicine,

side effects of these medications.” The City contends that the hearing examiner’s

Internet research suggests that she determined that the medication—as opposed to

O’Neill’s striking Woods—could have caused the bleeding. This conclusion, the City



                                           9
argues, undergirded the hearing examiner’s final determination that O’Neill’s striking

Woods was defensive rather than offensive.

       O’Neill does not dispute that the information about the side effects of Woods’s

medication was evidence, that the hearing examiner considered that evidence, or that

such consideration was unlawful. Instead, O’Neill argues that the City has

mischaracterized the hearing examiner’s reliance on the side-effects evidence and that

the City’s argument reads the word “procured” out of Section 143.057(j) by claiming

that the examiner’s mere citation to a website listing medication side effects suffices to

confer trial-court jurisdiction, even if that information did not affect the examiner’s

analysis.

       The Civil Service Act does not define “procure.” The parties do not cite—and

we have not found—cases discussing the meaning of the word “procure” as it is used

in Section 143.057(j). In construing statutes, our primary objective is to give effect to

the legislature’s intent. Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex.

2018). We rely on the text’s plain meaning as expressing that intent unless a different

meaning is supplied by legislative definition or is apparent from the context, or the

plain meaning leads to absurd results. Id. When, as here, a word is not statutorily

defined, we give that word its common, ordinary meaning unless a more precise

definition is apparent from the statutory context or unless the plain meaning yields an

absurd result. See id. To determine a term’s common, ordinary meaning, we typically

look first to dictionary definitions. Id.

                                            10
      In ordinary usage, “procure” means to “to cause to happen or be done” and to

“bring about.” Procure, Webster’s Third New International Dictionary 1809 (2002);

accord Procure, Black’s Law Dictionary 1401 (10th ed. 2014) (defining “procure” as “[t]o

achieve or bring about (a result)”). With these definitions in mind, we turn to whether

the hearing examiner’s written decision raises a fact issue on whether that decision

was unlawfully procured using evidence submitted outside the hearing.

      The hearing examiner ultimately concluded that the slap was defensive and that

the evidence did not support the fire chief’s finding that the slap’s force knocked

Woods to his knees and caused his injuries. In reaching these conclusions, the

examiner determined in the “Analysis” section of her opinion that Woods was

standing when O’Neill struck him with a backhanded slap, which the examiner

determined was a defensive move, not a “straight-on, in the face ‘sucker punch’ as the

[c]hief concluded.” The examiner went on to state that “[t]he form of the slap”

supported O’Neill’s claim that he was trying to “remove his children from potential

harm” and that a backhanded slap with O’Neill’s injured left arm was “compelling

evidence” that the slap was a “defensive measure.”

      The examiner goes on to conclude that it was “highly improbable” that the slap

cracked or broke Woods’s teeth. She further concluded that it was “more probable

than not that Woods’s injuries were minor.” After falling to his knees, Woods was

immediately back on his feet and threatening O’Neill. Woods had only a “slight

nosebleed,” bruising to the left side of his face, and no noticeable swelling. He was

                                          11
able to stand for 30 minutes while waiting for the ambulance. Woods’s injuries were

triaged in the emergency room three hours later, and he had no broken bones or brain

trauma. He was discharged without treatment for swelling and without pain

medication.

       In her “Analysis” section, the hearing examiner does not mention the

medication-side-effects evidence. Even so, we conclude that based on this evidence,

the hearing examiner could well have attributed Woods’s bleeding to a cause other

than O’Neill’s slap, which could have in turn influenced her determination that

O’Neill administered a defensive slap and not an offensive “sucker punch.” A fact

issue thus exists about whether the side-effects evidence led the hearing examiner to

decide that the evidence overall did not support the fire chief’s findings and

conclusions. Accordingly, whether the hearing examiner’s opinion was procured

through evidence outside the hearing contrary to the Civil Service Act presents a fact

question, and the trial court thus erred by granting O’Neill’s plea to the jurisdiction on

the City’s procured-by-unlawful-means claim.5 See Tex. Loc. Gov’t Code Ann.

§§ 143.010(g), .053(d), .057(j). We thus sustain this part of the City’s sole issue. 6



       5
        As the Austin Court of Appeals stated in Gish,

       We express no opinion on the resolution of the fact issue of whether the
       hearing examiner’s opinion was unlawfully procured using evidence
       submitted outside the hearing, and we express no opinion on the merits
       of the appeal. We conclude only that the fact question on the
       jurisdictional issue renders erroneous the trial court’s grant

                                             12
                                  Exceeds Jurisdiction

      In the remainder of its issue, the City contends that the hearing examiner

exceeded her jurisdiction by concluding that her determination that the fire

department’s investigation violated O’Neill’s due-process rights compelled her to

reinstate O’Neill. We disagree.

      A hearing examiner exceeds her jurisdiction “when [her] 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 Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010)

(quoting Smith, 292 S.W.3d at 21). The City does not argue on appeal (and did not

plead or argue in the trial court) that the hearing examiner’s acts violated the

nondelegation doctrine. Thus, we restrict our review to whether the hearing


      of the . . . plea to the jurisdiction regarding the Chapter 143 claim on the
      materials submitted.

2016 WL 2907918, at *3.
      6
         On appeal, the City also argues that the award was procured by unlawful
means because the hearing examiner’s award “reflected a source [the examiner]
consulted in order to discount the testimony of credible witnesses who were present
at the hearing and available for questioning.” This source was an article from the
Stanford Journal of Legal Studies regarding the limitations of eyewitness testimony. See
Laura Engelhardt, The Problem with Eyewitness Testimony: Commentary on a talk by George
Fisher & Barbara Tversky, 1 Stan. J. Legal Stud. 25 (1999). The City’s pleading,
however, limited its procured-by-unlawful-means claim to the hearing examiner’s
consideration of the medication-side-effects evidence. Because the City’s pleadings
were limited to the medication-side-effects evidence and because we conclude that the
hearing examiner’s consideration of that evidence is sufficient to raise a fact issue on
this jurisdictional issue, we will not address this argument.


                                          13
examiner’s acts were unauthorized by the Civil Service Act or were contrary to it. See

id.

      As noted, the Civil Service Act gave the hearing examiner discretion to restore

O’Neill to his “former position or status in the department’s classified service.” Tex.

Loc. Gov’t Code Ann. § 143.053(e)(3). Additionally, the Act requires civil-service

commissions administering it to adopt and publish “rules necessary for the proper

conduct of commission business.” Id. § 143.008(a). In accordance with Section

143.008, the City’s civil-service commission has adopted rules and regulations for the

administration of the City’s civil-service system. See generally City of Fort Worth, Tex.,

Civil Service Rules & Regulations, http://fortworthtexas.gov/hr/civilservice/ (last visited

Jan. 15, 2020). Among them is Rule 13.090, which provides that “[g]enerally, the

determinative issues to be considered and determined by the disciplinary action appeal

process” include whether “the employee receive[d] reasonable or appropriate ‘due

process’ in the Department’s disciplinary process.” Id. at Rule 13.090(2).

      In her written decision, the hearing examiner evaluated whether the fire

department afforded O’Neill the requisite due process during the disciplinary process.

She determined that the department did not fully investigate the facts and allegations

and did not give O’Neill an adequate opportunity to respond to the allegations. The

hearing examiner concluded that “[t]he total and seemingly intentional failure of [Fort

Worth Fire Department] Professional Standards to afford [O’Neill] his due[-]process



                                            14
rights is sufficient on its own to grant the appeal and overturn the indefinite

suspension entirely.”

       The City asserts that because of these “perceived shortcomings,” the hearing

examiner “reasoned that she was compelled to reinstate O’Neill.” The City argues that

because “[n]othing in the Act required or authorized her to effectively render a default

judgment as an automatic penalty for allegedly violating [O’Neill]’s due[-]process

rights,” the hearing examiner exceeded her jurisdiction “[b]y fashioning her own

remedy to cure perceived procedural defects with the investigation.”

       Contrary to the City’s argument, the hearing examiner’s decision does not say

that the hearing examiner was compelled or required to reinstate O’Neill. She found

merely that the due-process violations were sufficient for her to order his

reinstatement—a remedy the Civil Service Act expressly authorizes. See Tex. Loc.

Gov’t Code Ann. § 143.053(e)(3). Nothing in the Act prohibits hearing examiners

from reinstating a firefighter based on a finding that the department did not give due

process during the disciplinary process. Moreover, the City’s civil-service rules and

regulations provide that among the “determinative” issues for the hearing examiner to

consider and determine is whether “the employee receive[d] reasonable or appropriate

‘due process’ in the Department’s disciplinary process.” Civil Service Rules & Regulations,

Rule 13.090(2), supra. The hearing examiner expressly referred to this Rule twice in her

written decision, and the City makes no argument against this rule’s validity or

applicability.

                                            15
       Accordingly, we conclude that because the hearing examiner’s acts were not

unauthorized by the Civil Service Act or contrary to it, the City has failed to raise a

fact issue about whether the hearing examiner exceeded her jurisdiction. The trial

court thus did not err by granting O’Neill’s jurisdictional plea based on the City’s

exceeded-jurisdiction claim. We overrule this part of the City’s issue.

                                          Conclusion

       Having sustained the City’s issue in part, we reverse the trial court’s order

granting O’Neill’s plea to the jurisdiction on the City’s procured-by-unlawful-means

claim and remand that claim to the trial court for further proceedings. We affirm the

remainder of the trial court’s order. 7




                                                       /s/ Elizabeth Kerr
                                                       Elizabeth Kerr
                                                       Justice

Delivered: January 23, 2020




       7
        The City asserts that if we reverse the trial court’s order granting O’Neill’s plea
to the jurisdiction, “it would also be appropriate for [us] to find that it is within the
trial court’s discretion to review the merits and render a decision.” That issue is not
before us in this appeal, and so any decision now would be an improper advisory
opinion.


                                              16
