                                NO. 12-07-00434-CV

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

CITY OF ATHENS,                                  §           APPEAL FROM THE 392ND
APPELLANT

V.                                               §           JUDICIAL DISTRICT COURT OF

JAMES MACAVOY,
APPELLEE                                         §           HENDERSON COUNTY, TEXAS


                                            OPINION
       The City of Athens, Texas appeals from the trial court’s order dismissing the City’s appeal
from a hearing examiner’s decision to reinstate James MacAvoy as a police officer. In two issues,
the City argues that the trial court should have considered its arguments that the hearing examiner
exceeded his jurisdiction by applying or by applying and misconstruing Subsection 614.023(b) of
the government code. We reverse and remand in part and affirm in part.


                                          BACKGROUND
       The police chief for the City of Athens Police Department placed James MacAvoy, a police
officer, on indefinite suspension after an investigation revealed that MacAvoy had engaged in sexual
relations with a woman while on duty and committed various other violations of department policy.
The investigation began after MacAvoy’s actions were brought to the attention of the police
department by the woman’s husband.
       MacAvoy appealed his indefinite suspension. Pursuant to law, MacAvoy requested that the
appeal be heard by an independent hearing examiner. A two day hearing was held, and MacAvoy
argued that he must be reinstated because he was not provided with the appropriate signed
complaints before he was disciplined. Subsection 614.023(b) of the Texas Government Code
requires that a signed complaint be provided to a police officer before discipline can be imposed.
The police chief had named himself as the complainant, and did not provide the statements of the
woman and her husband before imposing discipline. The hearing examiner determined that the
woman and her husband were the complainants and that discipline could not be imposed because
their signed complaints had not been provided to MacAvoy. The hearing examiner ordered
MacAvoy to be reinstated with back pay.
        The City appealed the hearing examiner’s decision to the district court. The City alleged that
the hearing examiner was without jurisdiction to apply Section 614.023 and that his misinterpretation
of the statute resulted in a decision that exceeded his jurisdiction. MacAvoy filed a plea to the
jurisdiction, arguing that the district court lacked jurisdiction to consider the City’s appeal. The
district court granted MacAvoy’s plea to the jurisdiction. This appeal followed.


                                            JURISDICTION
        The City argues that it properly invoked the jurisdiction of the trial court, and that the court
erred in granting MacAvoy’s plea to the jurisdiction.
Standard of Review
        A plea to the jurisdiction is a dilatory plea by which a party challenges a court’s authority to
determine the subject matter of the action. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
The purpose of a dilatory plea is not to force the plaintiffs to preview their case on the merits but to
establish a reason why the merits should never be reached. Id.
        The question of subject matter jurisdiction is a legal question, and we review the trial court’s
ruling on a plea to the jurisdiction under a de novo standard of review. Hoff v. Nueces County, 153
S.W.3d 45, 48 (Tex. 2004). We consider the facts alleged in the petition and, to the extent it is
relevant to the jurisdictional issue, any evidence submitted by the parties to the trial court. Tex.
Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001).
Applicable Law
        Employment matters for police officers, including hiring and firing, are governed by statute,
unless the municipality and the workers have reached a separate collective bargaining agreement.


                                                   2
See generally TEX . LOC. GOV ’T CODE ANN . §§ 143.001–.057 (Vernon 2008). A police officer who
is fired, or placed on an indefinite suspension, can appeal that determination. Id. § 143.053. The
appeal is to the Police Officers’ Civil Service Commission. Id. §§ 143.003(1), 143.053(b).
Alternately, the police officer may elect to have an independent hearing examiner hear the appeal.
Id. § 143.057. The hearing examiner’s decision is final and binding on all parties. Id. § 143.057(c).
A party1 may appeal the hearing examiner’s decision on the grounds that the examiner “was without
jurisdiction or exceeded [his] jurisdiction or that the order [of the examiner] was procured by fraud,
collusion, or other unlawful means.” Id. § 143.057(j).2 The appeal is to the district court having
jurisdiction in the municipality in which the police department is located. Id.
         At issue in this case is Texas Government Code Subsection 614.023(b), which provides that
“[d]isciplinary action may not be taken against the officer or employee unless a copy of the signed
complaint is given to the officer or employee.”
Jurisdiction to Apply Subsection 614.023(b)
         In the City’s first issue, it argues that the trial court had jurisdiction to consider its argument
that the hearing examiner exceeded his jurisdiction by applying Subsection 614.023(b). MacAvoy
responds that the hearing examiner had jurisdiction to apply Subsection 614.023(b) because the
government code states that it applies to the type of disciplinary proceeding at issue here. See TEX .
GOV ’T CODE ANN . § 614.021(a)(3) (Vernon Supp. 2007) (stating that section 614.023 applies to a
complaint against a peace officer appointed or employed by a political subdivision of the state.).
         The City argued in the trial court that Subsection 614.023(b) should not apply because the
predecessor to the current version of Section 614.021 would not have covered MacAvoy. That
statute was amended in 2005, and the predecessor statute contains slightly different language when
describing the officers to which it applied. See Act of May 22, 1993, 73rd Leg. R.S., ch. 268, 1993



         1
          Although not specifically provided for by statute, a city may appeal an independent hearing examiner’s
decision. City of Houston v. Clark, 197 S.W .3d 314, 315 (Tex. 2006); Nuchia v. Tippy, 973 S.W .2d 782, 785 (Tex.
App.–Tyler 1998, no pet.).

         2
            Section 143.057(j) states that it is the decision of the “arbitration panel” that can be appealed to the
district court. The Texas Supreme Court, when construing an identical statute, found this language “difficult to
explain” but presumed that an “arbitration panel” included an independent hearing examiner. Clark, 197 S.W .3d at
318 n.5 (interpreting T EX . L O C . G O V ’T C O D E A N N . § 143.1016(j) (Vernon 2008)).

                                                          3
Tex. Gen. Laws 678–79 (amended 2005) (current version at TEX . GOV ’T CODE ANN . § 614.021
(Vernon Supp. 2007). The City argued that the legislature did not intend to make changes when it
amended Section 614.021 and that the present statute should be read to have the same breadth as its
predecessor.
       Regardless of the merits of the City’s argument, and regardless of whether Section 614.021
is sufficiently ambiguous to require the kind of analysis the City proposes, the City’s claim that the
hearing examiner applied a statute he had no jurisdiction to apply is one that invokes the jurisdiction
of the district court. In fact, by statute, the question of whether the hearing examiner exceeded his
jurisdiction is, essentially, the only issue the trial court could consider. See TEX . LOC. GOV ’T CODE
ANN . § 143.057(j).
       A similar argument was addressed in City of Pasadena v. Smith, No. 01-05-01157-CV, 2006
Tex. App. LEXIS 8177 (Tex. App.–Houston [1st Dist.] 2006, pet. granted). In Smith, the hearing
examiner found in favor of the officer in an appeal from an indefinite suspension because the police
chief was not present at the appeal hearing and therefore could not, as required by Subsection
143.1015(k) of the Texas Local Government Code, submit a written statement and charges to the
hearing examiner. Id., at *3–4. The city appealed that decision to the district court, and the district
court granted the officer’s plea to the jurisdiction. Id., at *5–6. The court of appeals affirmed,
holding that the hearing examiner had the authority to apply Subsection 143.1015(k). The court
further held that even though his application of Subsection 143.1015(k) was clearly erroneous, he
did not exceed his jurisdiction because his jurisdiction included the application and construction of
statutes within chapter 143. Id., at *3 n.2, 11–14. The court dismissed the city’s argument that it
was challenging the hearing examiner’s jurisdiction to apply Subsection 143.1015(k), concluding
that the argument was simply that the hearing examiner reached the wrong conclusion. Id., at
*13–14.
       Although the City’s argument in this case is similar to that in Smith, it differs in an important
respect. The hearing examiner in Smith applied a statute within chapter 143, and a hearing examiner
has the authority to apply statutes within chapter 143. See Lindsey v. Fireman’s and Policeman’s
Civil Serv. Comm’n, 980 S.W.2d 233, 236 (Tex. App.–Houston [14th Dist.] 1998, pet. denied). In
the case before us, the hearing examiner applied a statute outside of chapter 143, specifically Section


                                                  4
614.023 of the Texas Government Code, and the City asserted that this application of the statute was
not authorized by law.
        Even if it is wrong on the merits, the City made a sufficiently focused assertion that the
hearing examiner applied a statute that he had no jurisdiction to apply. This invoked the jurisdiction
of the district court, and the court should have decided the issue on the merits. We sustain the City’s
first issue.
Construction of Subsection 614.023(b)
        In its second issue, the City argues that the trial court should have reached the merits of its
argument that the hearing examiner exceeded his jurisdiction by misconstruing Subsection
614.023(b). Specifically, the City argues that the police chief could serve as a complainant.
Therefore, the City argues that even if the hearing examiner had jurisdiction to apply Subsection
614.023(b), he erred, and exceeded his jurisdiction, by finding that the woman and her husband were
complainants.
        The court in Smith held that this argument, that the hearing examiner decided a question of
law incorrectly, did not present a jurisdictional challenge. See Smith, 2006 Tex. App. LEXIS 8177,
at *13. Hearing examiners have the jurisdiction to apply statutes and construe them in light of the
facts presented to them. See, e.g., Williams v. Houston Firemen’s Relief and Ret. Fund, 121
S.W.3d 415, 430 (Tex. App.–Houston [1st Dist.] 2003, no pet.). Therefore, we agree with the other
courts that have concluded a hearing examiner does not exceed his jurisdiction by interpreting
statutes that he has the jurisdiction to apply. See Bradford v. Pappillion, 207 S.W.3d 841, 846 (Tex.
App.–Houston [14th Dist] 2006, no pet.) (“Because the hearing examiner’s decision is well within
a reasonable interpretation of the statute, the City’s challenge on appeal fails to demonstrate that the
trial court erred in affirming it . . . .”); City of Houston v. Williams, 99 S.W.3d 709, 717 (Tex.
App.–Houston [14th Dist.] 2003, no pet.), rev’d on other grounds, 216 S.W.3d 827 (Tex. 2007)
(“Hearing examiners wield the undoubted authority to interpret the relevant statutory provisions and
to make a decision in that regard.”).
        The question of whether a misinterpretation of a statute could go so far as to be an
extrajurisdictional act is not presented here. See, e.g., City of Garland v. Byrd, 97 S.W.3d 601, 607
(Tex. App.–Dallas 2002, pet. denied) (“An abuse of authority occurs when a decision is so arbitrary


                                                   5
and unreasonable that it amounts to a clear and prejudicial error of law.”). Any misinterpretation by
the hearing examiner in this case turns on whether the husband and wife are the complainants. Two
courts of appeals have considered who may be a “complainant” in cases with factual backgrounds
similar to this case and reached different conclusions. In Guthery v. Taylor, 112 S.W.3d 715, 724
(Tex. App.–Houston [14th Dist.] 2003, no pet.), the court concluded that a family who complained
that a police officer damaged their front door were the complainants, and the failure to tender their
complaints was fatal to the imposed discipline. By contrast, in Fudge v. Haggar, 621 S.W.2d 196,
197–98 (Tex. App.–Texarkana 1981, writ ref’d n.r.e.), the court held, under a predecessor statute,
that an outside source whose report of misconduct prompted an investigation was not a complainant
because the entire subsequent investigation occurred within the police department. This case falls
between those two bounds.
       MacAvoy did not necessarily break any penal laws, but his conduct was far outside what is
expected of a public servant. The City’s argument that the police department is the true victim of
this kind of misconduct is well taken, and this case is like Fudge in that an external source prompted
an internal investigation that discovered MacAvoy’s misconduct. On the other hand, the officer in
Fudge was provided with affidavits from witnesses that detailed the complaint against him.
MacAvoy, like the officer in Guthery, was not provided with witness statements.
       With these two divergent holdings for fact patterns that have elements in common with the
facts in this case, the hearing examiner’s construction of the statute is not so far outside the range
of reasonable decisions that we can conclude the City made a claim that the examiner exceeded his
jurisdiction. The City’s argument is that the hearing examiner made an error in applying a legal
standard to a factual situation. This is merely an argument that the hearing examiner reached the
wrong result. Accordingly, we hold that the City’s argument that the hearing examiner incorrectly
construed the statute failed to state a claim that the hearing examiner exceeded his jurisdiction and
therefore failed to invoke the jurisdiction of the trial court. We overrule the City’s second issue.


                                           CONCLUSION
       The trial court has jurisdiction to consider whether a hearing examiner’s application of a
statute was outside the hearing examiner’s jurisdiction. Accordingly, we reverse in part for


                                                  6
consideration of that issue. Because the hearing examiner’s construction of Subsection 614.023(b),
assuming he had the jurisdiction to apply it, did not exceed his jurisdiction, the trial court properly
concluded that it did not have jurisdiction to consider a mere error in the examiner’s construction
of the statute. Therefore, we affirm the trial court’s order granting of the plea to the jurisdiction on
that issue.




                                                                    BRIAN HOYLE
                                                                          Justice



Opinion delivered July 31, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                       (PUBLISH)


                                                                7
