       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-08-00227-CV



                                     Juneth Steubing, Appellant

                                                   v.

                                   City of Killeen, Texas, Appellee


       FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
            NO. 225,837-B, HONORABLE RICK MORRIS, JUDGE PRESIDING



                                 DISSENTING OPINION


                   Because I would reverse the judgment of the district court on the ground that the

Fire Fighters’ and Police Officers’ Civil Service Act, see Tex. Loc. Gov’t Code Ann. §§ 143.001-

.363 (West 2008), does not authorize the remand of a hearing examiner’s order procured by unlawful

means, I respectfully dissent.

                   By electing to appeal her suspension to a hearing examiner rather than the

Commission, Steubing automatically waived all rights to appeal to a district court except as provided

by section 143.057(j) of the Civil Service Act. See id. § 143.057(c). Section 143.057(j) provides,

in its entirety:


        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. An
        appeal must be brought in the district court having jurisdiction in the municipality in
        which the fire or police department is located.
Id. § 143.057(j).1 Therefore, while a hearing examiner generally has the same duties and powers as

the Commission when conducting a hearing on an appeal from a disciplinary suspension, see id.

§ 143.057(f), the legislature created a more restrictive appeal from a hearing examiner’s decision,

limiting it to those situations in which the order was outside the hearing examiner’s jurisdiction or

was procured by fraud, collusion, or other unlawful means. Id. § 143.057(j); see also City of

Houston v. Clark, 197 S.W.3d 314, 320 (Tex. 2006) (“Appeals from an independent hearing

examiner’s decision are severely circumscribed, while appeals from a Commission decision to

district court are reviewed de novo.”).2

                In an appeal from a Commission decision, the district court is authorized to “grant

the appropriate legal or equitable relief necessary to carry out the purposes of this chapter. The relief

may include reinstatement or promotion with back pay if an order of suspension, dismissal, or

demotion is set aside.” Id. § 143.015(b). However, there is no similar provision applicable to the

circumscribed appeal from a hearing examiner’s decision. Compare id. (appeal of Commission

decision), with id. § 143.057(j) (appeal of hearing examiner decision). In addition, the statutory

language authorizing the trial court to grant appropriate legal or equitable relief in section 143.015(b)



        1
          The Dallas Court of Appeals has held that “[t]he use of the words ‘arbitration panel’
instead of ‘hearing examiner’ [in section 143.057(j)] is clearly a mistake. Chapter 143 does not
provide for decisions by arbitration panels.” Kuykendall v. City of Grand Prairie, 257 S.W.3d 515,
518 n.2 (Tex. App.—Dallas 2008, no pet.).
        2
           While section 143.015 of the local government code states that an appeal from a
Commission decision is by trial de novo, “[t]his means ‘a trial to determine only the issues of
whether the agency’s rule is free of the taint of any illegality and is reasonably supported by
substantial evidence.’” City of Houston v. Richard, 21 S.W.3d 586, 588 (Tex. App.—Houston
[1st Dist.] 2000, no pet.) (quoting Firemen’s & Policemen’s Civil Serv. Comm’n v. Brinkmeyer,
662 S.W.2d 953, 956 (Tex. 1984)).

                                                   2
is immediately preceded by the following language, “An appeal under this section is by

trial de novo,” id. § 143.015(b), a statement that clearly applies only to appeals from

Commission decisions.

                “When the Legislature includes a right or remedy in one part of a code but omits it

in another, that may be precisely what the Legislature intended. If so, we must honor that

difference.” PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P’ship, 146 S.W.3d 79, 84

(Tex. 2004). It is therefore significant that the legislature expressly authorized trial courts to fashion

equitable remedies in appeals from Commission decisions, see Tex. Loc. Gov’t Code

Ann. § 143.015(b), without including a similar provision for appeals from hearing examiner

decisions.3 In addition, the legislature has included express language to provide for the availability

of a remand when necessary in other contexts. See Tex. Civ. Prac. & Rem. Code Ann. § 171.089

(West 2005) (authorizing trial court to remand for new arbitration hearing when arbitration award

is set aside on basis of, among other things, arbitrator’s misconduct); see also id. § 171.088(a)(2)(C)

(West 2005). The legislature’s demonstrated ability to expressly provide for the remedy of

remand when necessary suggests that it did not intend to allow a remand where the statute does

not authorize one.

                When a statute is silent, we may look to the statute’s purpose for guidance. See PPG

Indus., 146 S.W.3d at 84. Because the statute is silent as to the remedies available in an appeal from

a hearing examiner’s decision, we may look to the purposes of the Civil Service Act to determine


        3
          Another distinction between appeals from hearing examiner decisions and those from
Commission decisions is that “[t]he hearing examiner’s decision is final and binding on all parties.”
Tex. Loc. Gov’t Code Ann. § 143.057(c) (West 2008). This language suggests that once a hearing
examiner’s decision is set aside as being unlawfully obtained, the department is not entitled to a
second bite at the apple.

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whether allowing a district court to remand an order procured by fraud, collusion, or other unlawful

means is consistent with its goals.

               The purpose of the Civil Service Act is “to secure efficient fire and police

departments composed of capable personnel who are free from political influence and who have

permanent employment tenure as public servants.” Tex. Loc. Gov’t Code Ann. § 143.001(a). Courts

have interpreted the Civil Service Act in a manner consistent with a legislative intent to protect the

rights of persons serving as officers and employees of police departments and shield them from

harassment. See Bichsel v. Carver, 321 S.W.2d 284, 286 (Tex. 1959) (recognizing legislative intent

to shield “police and similar employees from harassment” and interpreting Civil Service Act

accordingly); Carrollton v. Popescu, 806 S.W.2d 268, 272 (Tex. App.—Dallas 1991, no writ)

(holding that statements and charges by municipality may not be amended in light of “legislative

purpose of shielding police and similar employees from harassment”); see also Crawford v. City of

Houston, 487 S.W.2d 179, 181 (Tex. App.—Houston [14th Dist.] 1972, writ ref’d n.r.e.) (stating

that, in enacting Civil Service Act, “the legislature may have had in mind the shielding of employees

from harassment by delay”).

               Considering the statute’s purpose of protecting the rights of police department

employees, including the prevention of harassment by delay, an interpretation of section 143.057(j)

that would allow a hearing examiner’s order procured by fraud, collusion, or other unlawful means

to be remanded for a new hearing is inconsistent with the goals of the statute, as it would allow

municipalities to harass employees by unlawfully procuring orders on appeal, with the only

consequence being a remand for the opportunity to do so again.4 Conceivably, a municipality could


       4
         We note that in the present case, the parties agree that the City was not at fault for the
hearing examiner’s consideration of improper evidence.

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prolong the proceedings indefinitely by engaging in a perpetual cycle of unlawfully procuring a

hearing examiner decision, and then requesting a remand from the district court.5 In addition,

allowing a remand from an unlawfully obtained hearing examiner decision could place a prohibitive

financial burden on the individual employee, as an appeal before a hearing examiner, unlike an

appeal before the Commission, requires the appealing employee to split the costs with the

department. See Tex. Loc. Gov’t Code Ann. § 143.057(i). Therefore, in keeping with the legislative

intent to protect the rights of individual employees and prevent harassment by delay in the resolution

of disciplinary proceedings, I would interpret the Civil Service Act to require that a hearing

examiner’s order procured by fraud, collusion or other unlawful means be set aside without remand

in an appeal to a district court under section 143.057(j).

               The City has pointed to no Texas case, nor have we found any, in which a

district court set aside a hearing examiner’s order as unlawfully procured under section 143.057(j)

and then remanded for a new hearing. Authority does exist, however, for setting aside a hearing

examiner’s order without a remand. See Kuykendall v. City of Grand Prairie, 257 S.W.3d 515

(Tex. App.—Dallas 2008, no pet.). In Kuykendall, the court of appeals, after finding that a hearing

examiner had exceeded his jurisdiction in issuing an order of suspension, reversed the trial court’s

judgment affirming the hearing examiner’s order and rendered judgment in favor of the suspended

employee, without a remand. See id. at 520. Similarly, the supreme court has set aside an order of

the Commission without a remand on facts similar to those present here, in which a suspension order

was unlawfully procured after a review of improper evidence. See Richardson v. City of Pasadena,



       5
           Such a situation is less likely to occur in an appeal from a Commission decision because
the district court applies a de novo review. See id. § 143.015(b).

                                                  5
513 S.W.2d 1, 4 (Tex. 1974). When the department attempted to initiate a new hearing based on the

same underlying conduct but excluding the improper evidence, the employee sought a writ of

mandamus to compel the City to reinstate him without holding a second hearing. See City of

Pasadena v. Richardson, 523 S.W.2d 506, 509 (Tex. App.—Houston [14th Dist.] 1975, writ ref’d

n.r.e.). In an appeal from that mandamus proceeding, the Houston court of appeals held that when

the supreme court “set aside the Commission’s order of dismissal,” the City was barred from

initiating a second hearing. Id. “The only effective thing the district court could do in ‘observance’

of the Supreme Court’s decision . . . was to determine the amount of Richardson’s back pay and

order that he be reinstated with such back pay.” Id.; see also Fire Dep’t of City of Fort Worth v. City

of Fort Worth, 217 S.W.2d 664, 667 (Tex. 1949) (“Reinstatement of the employee necessarily ensues

from vacating the order dismissing or suspending him.”).

               In another case involving similar facts, the Houston court of appeals affirmed the

trial court’s order setting aside an order of the Commission on the basis that the Commission’s order

was improperly based on evidence outside the record. Firemen’s & Policemen’s Civil Serv. Comm’n

v. Bonds, 666 S.W.2d 242, 245 (Tex. App.—Houston [14th Dist.] 1984, writ dism’d w.o.j.); see also

Tex. Loc. Gov’t Code Ann. § 143.010(g) (Commission may only consider evidence submitted at

hearing). The court affirmed the trial court’s order reinstating the employee without a remand

despite its determination that the Commission’s decision to suspend the employee was supported by

substantial evidence. Bonds, 666 S.W.2d at 245 (“While there may have been substantial evidence

to support the Commission’s order, we cannot say that the ruling was free of the taint of illegality.

. . . Any evidence received outside the bounds set by the statute is illegal, and destroys any

presumption that the Commission’s order is valid.”). While Bonds, like the present case, did not


                                                  6
necessarily involve egregious misconduct by the Commission or the department, the mere “taint of

illegality” surrounding the consideration of improper evidence was sufficient to require reinstatement

of the employee, despite the existence of substantial evidence to support a suspension. See id.

               The Fire Fighters’ and Police Officers’ Civil Service Act is a highly technical statute

that should be interpreted in a manner consistent with its purpose of protecting the rights of the

employee. See Bichsel, 321 S.W.2d at 286 (stating that one purpose of Civil Service Act is “to

provide for and protect the rights of persons serving as officers and employees of municipal fire and

police departments”); Austin v. Villegas, 603 S.W.2d 282, 283 (Tex. App.—Beaumont 1980,

writ ref’d n.r.e.) (describing proceedings under Civil Service Act as being “governed by statutes of

unusual strictness”). Furthermore, the requirements of the Act must be strictly construed to avoid

delay, or else a “suspended employee could thereby easily be dissuaded from pursuing the

procedures provided for in the Act which are at least in part specified for his protection.” Crawford,

487 S.W.2d at 181 (granting writ of mandamus compelling reinstatement of employee due to

Commission’s failure to hold appeal hearing within 30 days as required by statute). Given the

requirement of strict construction and the absence of any legal authority for a remand of a hearing

examiner’s order procured by unlawful means, I respectfully dissent.




                                               ___________________________________________

                                               Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Filed: July 10, 2009


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