                                                                                       ACCEPTED
                                                                                  13-14-00188-CV
                                                                  THIRTEENTH COURT OF APPEALS
                                                                         CORPUS CHRISTI, TEXAS
                                                                            10/28/2015 9:45:49 AM
                                                                                 Dorian E. Ramirez
                                                                                            CLERK

                         NO. 13-14-00188-CV

_____________________________________________________________
                                                FILED IN
                                             13th COURT OF APPEALS
                                          CORPUS CHRISTI/EDINBURG, TEXAS
                    IN THE COURT OF APPEALS  10/28/2015 9:45:49 AM
                      13TH DISTRICT OF TEXAS DORIAN E. RAMIREZ
                    at CORPUS CHRISTI, TEXAS          Clerk
_____________________________________________________________

 JEFFERSON COUNTY CONSTABLES ASSOCIATION, Appellant

                                  VS.

             JEFFERSON COUNTY, TEXAS, Appellees

 On Appeal from the 60th Judicial District Court, Jefferson County, Texas
                   Trial Court Cause No. B-191,390
_____________________________________________________________

               APPELLANT’S REPLY BRIEF TO
             APPELLEE’S SUPPLEMENTAL BRIEF
_____________________________________________________________

                BRADLEY, STEELE & PIERCE L.L.P.
                         Lance P. Bradley
                      State Bar No. 02826650
                      3120 Central Mall Drive
                     Port Arthur, Texas 77642
                    (409) 724-6644 –Telephone
                    (409) 724-7585 –Telecopier
                   lbradley@bradlaw.net –Email

         Counsel for Jefferson County Constables Association




                                   1
                      Identity of Parties and Counsel

Appellant:                           Appellant/Defendant’s Appellate
Counsel:

Jefferson County Constables          Lance P. Bradley
Association                          State Bar No. 02826650
                                     Bradley, Steele & Pierce, LLP
                                     3120 Central Mall Drive
                                     Port Arthur, Texas 77642
                                     (409) 724-6644 –Telephone
                                     (409) 724-7585 –Telecopier
                                     Email: lbradley@bradlaw.net


Appellee/Plaintiff:                  Appellee/Plaintiffs’ Appellate
Counsel:

Jefferson County, Texas              Phillip Babin
                                     Kathleen Kennedy
                                     Assistant District Attorneys of
                                     Jefferson County, Texas
                                     1001 Pearl Street
                                     Beaumont, Texas 77710
                                     (409) 835-8550 –Telephone
                                     (409) 784-5893 –Telecopier




                                    2
                  TABLE OF CONTENTS

IDENTITY OF PARTIES                           2

TABLE OF CONTENTS                             3

TABLE OF AUTHORITIES                          4

SUPPLEMENTAL STATEMENT OF THE CASE,           6
FACTS, AND SUMMARY OF THE ARGUMENT

SUPPLEMENTAL ARGUMENT                         6

THIS COURT SHOULD NOT CONSIDER APPELLEE’S     7
SUPPLEMENTAL BRIEF BECAUSE IT RAISES FOR
THE FIRST TIME AN ISSUE IT FAILED TO RAISE
BEFORE THE ARBITRATOR, THE TRIAL COURT, AND
IN ITS INTIAL BRIEF

APPELLEE HAD AUTHORITY TO ENTER INTO THE      10
COLLECTIVE BARGAINING AGREEMENT WITH
APPELLANT DEPUTY CONSTABLES ASSOCIATION

CONCLUSION                                    15




                          3
                               TABLE OF AUTHORITIES

Constitution

Tex. Const. Art. V, Sections 18 and 24………………………………….14

Statutes

Local Gov’t Code, Chapter 174………………………………………….10

Tex. Local Gov’t Code Section 86.021……………………………………… ….14

Cases

Bomer v. Ector County Comm’rs Court, 676 S.W.2d 662 (Tex. App.
8th Dist. – El Paso 1984)………………………………………………………………14

Campbell v. State, 85 S.W.3d 176, 184-185 (Texas 2002)…..…………….7

City of San Antonio v. San Antonio Park Rangers Ass’n, 850 S.W.2d 189
(Tex. App. – San Antonio 1992, writ denied)………………………...11,14

Commissioners’ Court of El Paso County v. El Paso County Sheriff’s
Deputies Assoc., 620 S.W.2d 900 (Tex. App. 8th Dist. El Paso 1981……12

Flack-Batie v. Cimmarron, 2013 Tex. App. LEXIS 1073 2013 WL
485750 (Tex. App. 5th Dist. – Dallas, Feb. 6, 2013)……………………..7

In re El Paso County Comm’rs Court, 281 S.W.3d 16, 22 (Tex. App. 8th
Dist – El Paso 2005)................................................................................. 9,14

Merritt v. Harris County, 775 S.W.2d 17, 23 (Tex. App. 14th Dist. –
Houston 1989)…………………………………………………………….14

Schwenke v. State, 960 S.W.2d 227 (Tex. App. 13th Dist. – Corpus
Christi 1997)………………………………………………………………13
                                                    4
Webb County v. Webb County Deputies Assoc., 768 S.W.2d 953 (Tex.
App. 4th Dist. – San Antonio 1989)........................................................13,14

Wolff v. Deputy Constables Association of Bexar County, 441 S.W.3d 362
(Tex. App. 4th Dist. – San Antonio 2013)…………….......6, 7, 9, 10, 11, 13




                                              5
SUPPLEMENTAL STATEMENT OF THE CASE, FACTS, AND SUMMARY
                  OF THE ARGUMENT

      Appellant adopts its previously filed briefs except to show that the

issues raised in Appellee’s supplemental Brief are untimely and without

merit. Appellee Jefferson County had legal authority to enter into the

subject collective bargaining agreement. Consequently, appellants have

standing to collectively bargain and the arbitrator had jurisdiction to

render an opinion on the application of the collective bargaining

agreement.

                         SUPPLEMENTAL ARGUMENT

      Appellant addresses herein solely the Supplemental Brief filed by

Appellee Jefferson County that raises for the first time (not before the

arbitrator, not in the trial court, and not in its initial Brief) the question

of the county’s authority to enter into a collective bargaining agreement.

It does this now even though it had voluntarily negotiated with

appellant and then acted for four years under the subject collective

bargaining agreement. This is far too late a time to raise this issue.

      In any event, Wolff v. Deputy Constables Association of Bexar

County, 441 S.W.3d 362 (Tex. App. 4th Dist. – San Antonio 2013), the

case appellee now relies upon for the first time, was wrongly decided


                                      6
and distorts the meaning and intent of Local Gov’t Code Sections

174.003 and 174.023. Deputy constables clearly are “police officers”

within the meaning of Section 174.023 entitled to collective bargaining.

THIS COURT SHOULD NOT CONSIDER APPELLEE’S SUPPLEMENTAL
   BRIEF BECAUSE IT RAISES FOR THE FIRST TIME AN ISSUE IT
 FAILED TO RAISE BEFORE THE ARBITRATOR, THE TRIAL COURT,
                  AND IN ITS INITIAL BRIEF.

       Wolff v. Deputy Constables Association of Bexar County, 441 S.W.3d

362 (Tex. App. 4th Dist. – San Antonio 2013), was decided in 2013, prior

to the trial court’s decision in this case and prior to appellee’s initial

brief. Yet appellee never raised the issue of its authority to enter into

the collective bargaining agreement before the arbitrator, in the trial

court, or in its initial brief.

       Appellee offers no good cause for raising this issue at this late

date in a supplemental brief in this court. Nor does appellee explain

how it avoids the dictates of Appellate Rule 33 which provides that an

issue must first be raised in the trial court before it can be brought to

the Court of Appeals. See Campbell v. State, 85 S.W.3d 176, 184-185

(Texas 2002). The law is clear that “Additional issues raised only in a

reply brief or post-submission brief will not be considered because they

are untimely.” Flack-Batie v. Cimmarron, 2013 Tex. App. LEXIS 1073,


                                    7
2013 WL 485750 (Tex. App. 5th dist. – Dallas, Feb. 6, 2013) (submission

of supplemental brief denied where it raised new issues).

      Appellee improperly casts its new issue as a question of

appellant’s lack of standing to bargain collectively and the arbitrator’s

supposed lack of jurisdiction to render any decision. Yet appellee is

actually challenging its own right to voluntarily enter into the collective

bargaining agreement that is the subject of this action; the agreement

that appellee first negotiated and then acted under for four (4) years

from October of 2007 through September of 2011.

      This is not an issue of standing or jurisdiction.        Rather, it is

whether appellee can at this late date claim that four years of collective

bargaining was void ab initio. Appellee offers no basis for this Court to

hold that appellee could under no circumstances have entered into the

collective bargaining agreement. While Section 174.023 gives “police

officers” the right to bargain collectively with their political subdivision,

nothing in that section or any other law would prevent a county from

choosing on its own to collectively bargain with its deputy constables.

Appellee fails to address its implied authority and inherent power to

contract to accomplish legitimate purposes.



                                     8
      In In re El Paso County Comm’rs Court, 281 S.W.3d 16, 22 (Tex.

App. 8th dist. – El Paso 2005), the court addressed the powers of a

county commissioners court:

            The Texas constitution provides that the commissioners
            court “shall exercise such powers and jurisdiction over all
            county business as is conferred by this Constitution and the
            laws of the State, or as may be hereafter prescribed” …Thus,
            the Texas Constitution establishes the Commissioners Court
            as the county’s principal governing body…The powers and
            duties of the Commissioners Courts include aspects of
            legislative, executive, administrative, and judicial
            functions…In the exercise of its powers and jurisdiction
            over county business, the commissioners court has implied
            authority to exercise broad discretion to accomplish the
            purposes intended….”

      Under these circumstances, this court need not even consider the

issue first raised in appellee’s Supplemental Brief. However, if this court

decides to address the issue of the county’s authority to enter into a

collective bargaining agreement with the county’s deputy constables

under Section 174.023, then it will become evident that appellee’s

reliance on Wolff v. Deputy Constables Association of Bexar County, 441

S.W.3d 362 (Tex. App. 4th Dist. – San Antonio 2013), is misplaced

because that ruling was simply wrong.




                                    9
         APPELLEE HAD AUTHORITY TO ENTER INTO THE
COLLECTIVE BARGAINING AGREEMENT WITH APPELLANT DEPUTY
                CONSTABLES ASSOCIATION

      Appellee’s Supplemental Brief focuses solely on the decision in

Wolff v. Deputy Constables Association of Bexar County, 441 S.W.3d 362

(Tex. App. 4th Dist. – San Antonio 2013). Appellee now argues, based

upon Wolff, that “only firemen and city policemen” are entitled to

collective bargaining under the Local Gov’t Code, Chapter 174. Thus, it

is now appellee’s position that because deputy constables supposedly

do not meet the definition of “police officer” (because they do not serve

in a “police department”), the collective bargaining agreement between

appellee and appellant is void and unenforceable. The Fourth District

erred in its analysis in Wolff and appellee’s argument is equally flawed.

      Wolff v. Deputy Constables Association of Bexar County recognized

that under Section 174.023 of the Texas Local Government Code, “police

officers” in a political subdivision that have adopted Chapter 174 have

the right to organize and bargain collectively. The court then focused on

the definition of “police officer” under Section 174.003(3). That Section

defines “police officer” as “a paid employee who is sworn, certified, and

full-time, and who regularly serves in a professional law enforcement

capacity in the police department of a political subdivision.”

                                    10
      The Wolff court found that deputy constables meet all of the

requirements of Section 174.003(3) except that they do not work in a

“police department.” The court found that a Constables Office is not a

“police department” within the meaning of Section 174.003. Noting that

a Sheriff’s Office is deemed a “police department” while a Parks

Department that employs park rangers is not, the court held that while

deputy constables serve in law enforcement, they do not serve in a

“police department” and thus cannot be deemed police officers. In other

words, Wolff found that a Constables Office is more akin to a Parks

Department than a Sheriff’s Office. This is wrong.

      The error in Wolff can be found in the court’s reliance on City of

San Antonio v. San Antonio Park Rangers Ass’n, 850 S.W.sd 189 (Tex.

App. – San Antonio 1992, writ denied). The court there found “the

Texas legislature limited this bill to include only firemen and city

policemen instead of all protective service employees.” 850 S.W.2d at

192 (emphasis supplied). Thus, the San Antonio court’s interpretation

of Section 174.003 would lead to the conclusion that not even County

Sheriff’s Offices would be covered.

      The concurring opinion in City of San Antonio succinctly stated the

Act would not include “any other law enforcement personnel outside of

                                      11
a city’s police department.” 850 S.W.2d at 193 (emphasis supplied).

But we know from Commissioners’ Court of El Paso County v. El Paso

County Sheriff’s Deputies Assoc., 620 S.W.2d 900 (Tex. App. 8th Dist. El

Paso 1981), that deputy sheriffs are deemed “police officers” and a

Sheriff’s Office is deemed a “police department” for purposes of Sections

174.023 and 174.003.

      Clearly, the definition of “police department” as used in Section

174.003(3) is broader than the simple wording used in the statute. That

is why sheriff’s offices have been deemed “police departments.” A

proper analysis of Chapter 174 leads to the conclusion that deputy

constables are “police officers” serving in a “police department” within

the meaning of Section 174.003 and thus have the right to collectively

bargain under Section 174.023.

      As the court noted in Commissioners’ Court of El Paso County v. El

Paso County Sheriff’s Deputies Assoc., supra, it is necessary to ascertain

the legislative intent behind Chapter 174 by looking at the entire Act

and not isolated provisions. 620 S.W.2d at 900. Further, the Act by its

own terms must be given a liberal construction. 620 S.W.2d at 902.

      The court found that the legislative intent had been the protection

of public health, safety and welfare by permitting collective bargaining

                                   12
in lieu of strikes, lockouts or work stoppages. The court also found “The

existing evil and the remedy provided apply to deputy sheriffs as well as

other “policemen.” The court then concluded: “deputy sheriffs and their

public employer, counties, are included and covered by the Act.” 620

S.W.2d at 902. See also Webb County v. Webb County Deputies Assoc.,

768 S.W.2d 953 (Tex. App. 4th Dist. – San Antonio 1989), finding that

jailers and detention officers in a sheriff’s office fall under Section

174.023.

      The same reasoning applies to Deputy Constables.           Section

174.003(3) defines “Police Officer” as (1) a paid employee (2) who is

sworn, (3) certified, (4) full-time, and who serves in a professional law

enforcement capacity in the police department of a political subdivision.

There is no dispute Deputy Constables are paid employees who are

sworn, full-time employees. They are also certified law enforcement

officers, as even Wolff acknowledges. 441 S.W.3d at 366. Similarly,

Schwenke v. State, 960 S.W.2d 227 (Tex. App. 13th Dist. – Corpus Christi

1997), recognized that a constable must obtain certification as a law

enforcement officer. Section 86.011 in fact provides that “Each deputy

constable must qualify in the manner provided for deputy sheriffs.”



                                   13
       The only question then is whether a Constable’s Office is more

akin to a Sheriff’s Office (which El Paso and Webb found to be a “police

department”) or a Parks Department (which San Antonio found is not a

“police department”). A County Constable’s Office is a constitutional

creation and the County Constable is a Constitutional Officer. See Tex.

Const. Art. V, Sections 18 and 24. The head of a Parks Department, on

the other hand, serves under the direction of a city manager (who

certainly is not a law enforcement officer) and others. 850 S.W.2d at

191.   A Constable’s Office has countywide jurisdiction and Deputy

Constables have the authority “to serve process, make arrests, and carry

out the duties of a peace officer throughout the entire county.” Merritt v.

Harris County, 775 S.W.2d 17, 23 (Tex. App. 14th Dist. – Houston 1989);

Tex. Local Gov’t Code Section 86.021. A Parks Department’s jurisdiction

is limited to the city parks and appurtenant areas and facilities. 850

S.W.2d at 191. Finally, while a park ranger clearly lacks the authority to

perform the duties of a deputy constable, a deputy sheriff can perform

those same functions. See Bomer v. Ector County Comm’rs Court, 676

S.W.2d 662 (Tex. App. 8th dist. – El Paso 1984).

       Simply applying the liberal construction required by Chapter 174

(See Section 174.004), and considering the legislative intent to prevent

                                    14
strikes, lockouts, and work stoppages by law enforcement officers in

order to protect the public health, safety and welfare, it only makes

sense to include deputy constables among the “police officers’ entitled

to collective bargaining.

      Once it is recognized that deputy constables are police officers

within the meaning of Section 174.003 and 174.023, then appellants

here clearly have standing to pursue their claims. Here, appellants

simply believe the court below erred by confusing the city’s right to lay

off or abolish positions as distinct from who is laid off or whose position

is abolished. The latter is the issue here and clearly falls within the

terms of the collective bargaining agreement.

                                 CONCLUSION

      Deputy Constables are clearly “police” officers within the meaning

of Sections 174.003 and 174.023 entitled to bargain collectively.

      For the above reasons, Appellant requests that this Court reverse

and render judgment for Appellant, Jefferson County Constables

Association and any and all relief to which Appellant may be justly

entitled.




                                    15
                                      Respectfully submitted,

                                      BRADLEY, STEELE & PIERCE,
                                      L.L.P.
                                      3120 Central Mall Drive
                                      Port Arthur, Texas 77642
                                      (409) 724-6644 TELEPHONE
                                      (409) 724-7585 FACSIMILE
                                      Email: lbradley@bradlaw.net

                                      By:     /S/ Lance P. Bradley
                                              LANCE P. BRADLEY
                                              State Bar No. 02826650

                                            Attorneys for Appellant



                     RULE 9.4 (i) CERTIFICATION

        In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I
certify that the number of words in this reply brief, excluding those matters
listed in Rule 9.4(i)(1), is 2,034.

                                              /S/ Lance P. Bradley
                                              LANCE P. BRADLEY




                                     16
                     CERTIFICATE OF SERVICE

      Pursuant to Tex. R. App. P. 9.5, I certify that a true and correct copy
of the foregoing Appellant’s Reply Brief to Appellee’s Supplemental Brief
has been forwarded on this 28th day of October, 2015, to the following:

      Phillip Babin                   [ ]   via certified mail, return receipt
      Kathleen Kennedy                      requested
      Assistant District Attorneys    [ ]   via hand delivery
      District Attorney’s Office      [ ]   via regular USPS mail
      1001 Pearl Street               [ ]   via overnight delivery
      Beaumont, Texas 77701           [x]   via telecopier
      Telecopier- (409) 784-5893      [x]   via EFile

                                            /s/ Lance P. Bradley
                                            LANCE P. BRADLEY




                                     17
