Affirmed and Memorandum Opinion filed April 30, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00059-CV


               THE CITY OF BEAUMONT, TEXAS, Appellant
                                        V.
BEAUMONT PROFESSIONAL FIREFIGHTERS LOCAL 399 AND JAMES
                  LANDRUM, Appellees


                    On Appeal from the 60th District Court
                           Jefferson County, Texas
                       Trial Court Cause No. B-188,868


                 MEMORANDUM                     OPINION

      This case centers on the manner in which Beaumont fire fighters must use
their vacation time.   The parties initially submitted the matter to a hearing
examiner, who ruled in favor of appellees Beaumont Professional Firefighters
Local 399 and James Landrum. Appellant, the City of Beaumont, appealed the
hearing examiner’s decision to the district court, and the appeal was dismissed for
want of jurisdiction. We affirm.

                                   BACKGROUND

      Landrum was a fire fighter who was injured in the line of duty in October
2007. He was on occupational injury leave from that time until his retirement in
2009. In December 2008, Landrum requested that he be allowed to use vacation
time he had earned in 2007, but the City denied his request. Landrum then
requested that his unused vacation time be carried over to 2009; he was not
informed whether this request was granted or denied. When he gave his retirement
notice in October 2009, Landrum learned that the City had deducted or failed to
compensate him for 292 hours of vacation time earned in 2007. Shortly thereafter,
appellees filed the grievance underlying this case.

      Pursuant to a collective bargaining agreement (CBA) and chapter 143 of the
Local Government Code, an independent third party hearing examiner was
selected, and hearings on the matter were held in September 2010. On November
15, 2010, the hearing examiner issued a 16-page decision that included a one-
paragraph award:

      The grievance is sustained. The City violated the Collective
      Bargaining Agreement (“CBA”) and/or any applicable statute when,
      in October, 2009, it denied the Grievant, Jimmy Landrum, vacation
      pay which was earned in 2007. The City shall compensate the
      Grievant for 292 hours of vacation pay. The Hearing Examiner will
      retain jurisdiction to interpret the remedy, if necessary.

The City appealed the hearing examiner’s decision to the 60th District Court of
Jefferson County, which dismissed the appeal for want of jurisdiction. This appeal
followed.

                                    ANALYSIS

      In its sole issue on appeal, the City contends that the district court erred by
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dismissing the case for want of jurisdiction and denying its motion for summary
judgment.

       Because the question of jurisdiction is a legal question, we apply a de novo
standard of review. Hoff v. Nueces Cnty., 153 S.W.3d 45, 48 (Tex. 2004); City of
Houston v. Tones, 299 S.W.3d 235, 237 (Tex. App.—Houston [14th Dist.] 2009,
no pet.). 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. Tex.
Natural Res. Mgmt. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.
2001); Tones, 299 S.W.3d at 237.

       The cornerstone issue of whether the district court had jurisdiction to hear an
appeal from the hearing examiner’s award focuses on whether the hearing
examiner exceeded her jurisdiction. Tex. Local Gov’t Code § 143.057(j) (Vernon
2008); Tones, 299 S.W.3d at 237 (examining the identical provision at Tex. Local
Gov’t Code § 143.1016(j) (Vernon 2008)). In relevant part, the Local Government
Code provides: “A district court may hear an appeal of a hearing examiner’s award
only on the grounds that the arbitration panel was without jurisdiction or exceeded
its jurisdiction or that the order was procured by fraud, collusion, or other unlawful
means.” Tex. Local Gov’t Code § 143.057(j). This provision applies to the City in
this case. See City of Pasadena v. Smith, 292 S.W.3d 14, 17 (Tex. 2009).1

       The appellees analogize the hearing examiner’s award to an arbitration
award; they argue that, in determining whether the hearing examiner exceeded her
jurisdiction, “[t]he [p]roper [s]tandard of [r]eview is a [g]reat [d]eference, so as to
[p]reserve the [g]oals of [a]rbitration.” This argument has been rejected by the


       1
         “The statute actually refers to an ‘arbitration panel’ exceeding its jurisdiction, but the
term includes a hearing examiner.” Smith, 292 S.W.3d at 19 (citing City of Houston v. Clark,
197 S.W.3d 314, 318 n.5 (Tex. 2006)).

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supreme court; it has explicitly laid out the differences between a hearing examiner
and an arbitrator with reference to the Fire Fighters and Police Officers Civil
Service Act, codified in chapter 143 of the Local Government Code:

      An arbitrator derives his power from the parties’ agreement to submit
      to arbitration, and because the law favors arbitration, and arbitration
      agreements are often quite broad, judicial review of an arbitration
      award is usually very narrow. By contrast, an independent hearing
      examiner’s jurisdiction is created by the Act and comes with
      significant constraints. The Act states that “[i]n each hearing
      conducted [on appeal from a promotional bypass or disciplinary
      action], the hearing examiner has the same duties and powers as the
      [civil service] commission.” The Act prescribes various deadlines,
      procedures, and limitations on the commission, which apply equally
      to hearing examiners.

Smith, 292 S.W.3d at 20 (footnotes omitted). Accordingly, 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. Id. at 21.

      Here, the City contends that the hearing examiner exceeded her jurisdiction
because she (1) had no authority to consider the appellees’ untimely filed
grievance, and (2) invaded the policy-setting realm of the Beaumont City Council
by ignoring the CBA requirement that “[a]ll vacation time earned in a calendar
year must be taken in the following calendar year.” Both arguments were made —
in substantially the same form — before the hearing examiner.

I.    Timeliness

      The City contends that the underlying grievance was untimely for two
reasons. First, the City says Landrum did not file a grievance when he was not
allowed to take his vacation in 2008. Second, the City says Landrum should have
known in February 2009 that his vacation was not being carried over.
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      Article XXXII, section 2 of the CBA provides, in relevant part:

      A.    Any member who is aggrieved shall file a written report giving
      the nature and details of the incident which led to his grievance with
      the UNION’s grievance committee. The report must be submitted
      within fifteen (15) calendar days of the date upon which the member
      knew or should have known of the occurrence, or occurrences in the
      event that the grievance alleges a pattern or practice of the
      EMPLOYER in violation of this agreement, giving rise to the
      grievance.

      B.    A grievance not brought to the attention of the UNION
      grievance committee within the time limit described shall not be
      considered timely and shall be void.

The City argues that the underlying grievance cannot be timely because it was filed
in November 2009.

      The hearing examiner noted that this argument was not raised by the City
during the hearing and that “[t]echnically, the City is barred from raising such an
issue at this stage in the process.” The hearing examiner nevertheless addressed
the issue by determining when Landrum knew or should have known that he had
lost his vacation time, concluding that:

      It was not until October of 2009, when [Landrum] retired, that it
      became clear that [Landrum] had lost what the Union contends was an
      earned benefit. [Landrum] filed the instant grievance pursuant to
      [Article XXXII], when he reasonably became aware or knew of the
      potential contract violation.      Thus, the circumstances did not
      demonstrate that the instant grievance is untimely.

The City argues that the hearing examiner incorrectly interpreted article XXXII,
section 2 of the CBA. Asserting that a decision made by the hearing examiner is
incorrect is not the same as asserting that the examiner lacked jurisdiction. Smith,
292 S.W.3d at 21; Tones, 299 S.W.3d at 240. Thus, the district court did not have
jurisdiction based on the City’s contention that the underlying grievance was
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untimely filed.

II.   Policy-Setting Realm

      The City also argues that the hearing examiner “unlawfully usurped the City
Council’s authority over the CBA by, in effect, removing the provision of the CBA
that required that ‘all vacation time earned in a calendar year be taken the
following calendar year.’”     In response, the appellees argue that the hearing
examiner has “merely upheld a grievance and directed that a City employee be
properly paid according to the CBA and Texas law.” We agree.

      Article XIII, section 2 of the CBA provides, in relevant part: “All vacation
time earned in a calendar year must be taken in the following calendar year.”
Discretion to allow a fire fighter to carry over accrued vacation time from one year
to the next lies solely with the Beaumont City Council. See Tex. Local Gov’t Code
§ 143.046(c) (Vernon 2008).

      In addressing the City’s argument, the hearing examiner noted that the City,
as much as Landrum, was bound by the CBA:

      The City is correct in noting that the Hearing Officer cannot modify
      the CBA. However, as previously noted, nothing in the CBA states
      that earned vacation time or allowance is lost and may not be taken if
      an employee is on disability leave. Nor does the CBA state that
      vacation time or allowance may not be taken simultaneously with
      disability leave. Rather, Article XIII, Section 2, of the CBA directs
      that all vacation time is to be taken during the year following the year
      in which such vacation is earned. In other words, pursuant to the
      CBA, [Landrum] must either be allowed to receive his vacation time
      in the year it is to be taken or, at the discretion of the City Council, be
      allowed to carry it over. The City cannot unilaterally deny [Landrum]
      benefits he has earned and to which he is entitled.

The City entered into the CBA and agreed to be bound by its terms. The hearing
examiner enforced those terms in a way the City does not like; she has not acted

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contrary to the CBA. See Smith, 292 S.W.3d at 21. Thus, the district court did not
have jurisdiction based on the hearing examiner’s alleged invasion into the policy-
setting realm of the Beaumont City Council.

                                       CONCLUSION

      We overrule the City’s sole issue and affirm the trial court’s dismissal for
want of jurisdiction.




                                             /s/       William J. Boyce
                                                       Justice



Panel consists of Justices Boyce and McCally and Senior Justice Mirabal.2




      2
          Senior Justice Margaret Garner Mirabal sitting by assignment.

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