      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



                                          OPINION


               Juneth Steubing was indefinitely suspended from her job as a police officer for the

City of Killeen (“City”). Steubing appealed her suspension to a hearings examiner, who concluded

that Steubing should not be reinstated. After the examiner issued his order, Steubing appealed to the

district court and filed a motion for summary judgment. The district court granted the motion in part

and remanded the case back to the examiner. In this appeal, Steubing argues that the district court

erred by remanding the case back to the examiner instead of issuing a judgment reinstating her to

the Killeen Police Department. Steubing also contends that the district court erred by failing to

award her attorney’s fees. We will affirm the judgment of the district court.


                                        BACKGROUND

               The issues and facts are well known to the parties, so we will not exhaustively

recount them here. On November 20, 2006, Steubing was indefinitely suspended from the
Killeen Police Department. After her suspension, Steubing elected to appeal that determination to

an independent third-party hearing examiner rather than appeal to the Fire Fighters’ and Police

Officers’ Civil Service Commission (“Commission”). See Tex. Loc. Gov’t Code Ann. § 143.057

(West 2008); see also id. § 143.057(f) (stating that hearing examiners have “the same duties and

powers as the commission”); City of DeSoto v. White, 232 S.W.3d 379, 384 (Tex. App.—Dallas

2007, pet. granted) (concluding that powers used by hearing examiner are same as those of

Commission and that final orders by examiners are equivalent to final orders by Commission); City

of Garland v. Byrd, 97 S.W.3d 601, 606 (Tex. App.—Dallas 2002, pet. denied) (explaining that

examiner steps into shoes of Commission when asked to make disciplinary decisions).

               After the hearing before the examiner concluded, the examiner issued his decision

denying Steubing’s appeal. The examiner concluded that Steubing should not be reinstated and that

the City’s decision to terminate Steubing was justified. In his decision, 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. In other words, the examiner considered

information that was not presented during the hearing or offered by either party to the hearing.

               Steubing appealed the examiner’s decision to the district court. Essentially, Steubing

argued that because the examiner considered evidence that was not offered by either party during the

hearing, the examiner’s order was procured by unlawful means, which violated her right to due

process. See Tex. Loc. Gov’t Code Ann. § 143.057(j) (listing permissible grounds for appealing

examiner’s decision including ground that order was procured by “unlawful means”). After

appealing the order, Steubing filed a motion for summary judgment. In her motion, Steubing asked

the district court to reinstate her to her former position and to award her attorney’s fees. The

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district court granted Steubing’s motion in part by reversing the examiner’s order. Instead of

ordering her reinstatement, the court remanded the case back to the examiner so that the examiner

could “reconsider the matter without considering the evidence which was not submitted at the

hearing (the sua sponte psychological studies and empirical statistics not submitted at the hearing).”

The district court denied Steubing’s attorney’s fee claim.


                                           DISCUSSION

               On appeal, no party contests the district court’s determination that the hearing

examiner’s decision was procurred by unlawful means.              See Tex. Loc. Gov’t Code Ann.

§ 143.010(g) (West 2008) (stating that Commission may only consider evidence submitted during

hearing when making disciplinary decision); see also Richardson v. City of Pasadena, 513 S.W.2d

1, 4 (Tex. 1974) (concluding that Commission erred by admitting and considering affidavits filed

after hearing had concluded); 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) (concluding that evidence given to

Commission prior to hearing was “illegal”). Rather, in this appeal, Steubing asserts that the

district court erred by remanding the case to the examiner instead of ordering her reinstatement. In

addition, Steubing argues that the district court erred by failing to award her attorney’s fees.


Remand

               In asserting that the district court should have reinstated her, Steubing primarily relies

on two cases. In the first case, the supreme court set aside an order by the Commission dismissing

an employee from continued employment and reversed the judgments of the district and appellate

courts that had affirmed the Commission’s order. Richardson, 513 S.W.2d at 4. In that case, the

                                                   3
Commission had considered evidence submitted after the hearing had closed. Id. at 3. After stating

that it was setting aside the Commission’s order, the supreme court did not state that it was

remanding the case for further proceedings, see id. at 4, and for this reason Steubing asserts that the

supreme court’s judgment effectively reinstated the employee. Although the supreme court’s

judgment did not specifically order the City of Pasadena to reinstate the employee, we note that an

appellate court later interpreted the supreme court’s order as effectively requiring reinstatement. See

City of Pasadena v. Richardson, 523 S.W.2d 506, 509 (Tex. Civ. App.—Houston [14th Dist.] 1975,

writ ref’d n.r.e.).1

                 In the second case, one of the commissioners improperly asked a municipality to

provide the Commission with documents related to an employee’s alleged misconduct so that the

Commission could review the documents before the hearing. Bonds, 666 S.W.2d at 244; see

Tex. Loc. Gov’t Code Ann. § 143.010(g). After a hearing, the Commission suspended the employee,

and the employee appealed to the district court. Bonds, 666 S.W.2d at 244. The district court

reversed the suspension and ordered the employee reinstated. Id. The district court’s judgment,

including the provision requiring reinstatement, was affirmed on appeal. Id. at 245.


        1
           After the supreme court set aside the order pertaining to Richardson, the Commission
scheduled another hearing regarding Richardson’s employment, and Richardson filed a writ of
mandamus asking the district court to order his reinstatement. City of Pasadena v. Richardson,
523 S.W.2d 506, 508 (Tex. Civ. App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.). Ultimately, the
district court granted the writ. Id. The City of Pasadena appealed, and the appellate court
determined that in light of the supreme court’s judgment, the “only effective thing the district court
could do . . . was to order reinstatement.” Id. at 509. It is worth noting that the appellate court based
this conclusion on its determination that the Commission could not have properly issued another
order dismissing Richardson because the time in which the Commission could have issued an order
of dismissal had expired. Id. (explaining that Commission was only authorized to issue order of
dismissal within thirty days of employee’s filing notice of appeal and that more than two years had
expired since Richardson had filed his appeal with Commission). That type of temporal bar is not
an issue in the present case.

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               In light of these two cases, Steubing argues that district courts may not remand cases

for further proceedings after setting disciplinary orders aside; on the contrary, Steubing insists that

district courts are obligated to reinstate the employees who are the subject of the orders.

               For the reasons that follow, we disagree with Steubing. First, we believe that

Steubing’s reliance on the two cases described above is misplaced. Even assuming that the supreme

court’s decision in Richardson compelled Richardson’s reinstatement, the decision to reinstate

Richardson in that case would not seem to foreclose district courts from ever fashioning other types

of relief. Similarly, the fact that the appellate court in Firemen’s affirmed the district court’s

decision to reinstate an employee would not seem to preclude district courts from employing other

remedies as well. Nothing in the language of either opinion persuades us that the courts in those

cases were confronted with determining whether district courts may grant relief other than

reinstatement when setting aside orders by an examiner or the Commission, and more importantly,

neither opinion expressly prohibits district courts from ordering other types of relief.2

               Moreover, the language of the governing statute also convinces us that district courts

have the authority to fashion remedies other than reinstatement when setting examiners’ orders aside.

Although the provision of the local government code governing this case does authorize a



       2
           After oral argument was held in this case, Steubing filed a supplemental letter brief
containing additional authority. Specifically, Steubing referred to Kuykenall v. City of Grand
Prairie, 257 S.W.3d 515 (Tex. App.—Dallas 2008, no pet.). In that case, the appellate court
determined that a hearing examiner did not have the authority to impose a punishment on an
employee for conduct that was not specifically alleged in the supervisor’s recommendation for
demotion. Id. at 519. Moreover, because there was insufficient evidence to support a determination
that the employee had engaged in the inappropriate conduct actually alleged, the appellate court set
aside the order of suspension. However, as with the other cases described above, nothing in the
language of this opinion forecloses the possibility that a remand may be ordered in appropriate
circumstances.

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district court to reinstate an employee if it overturns an examiner’s order, see Tex. Loc. Gov’t Code

Ann. § 143.015(b) (West 2008), it does not foreclose the utilization of other types of remedies. To

the contrary, the legislature gave district courts wide discretion for determining what relief, if any,

was appropriate when an examiner’s order is overturned.3 In particular, the legislature authorized

district courts to “grant the appropriate legal or equitable relief necessary to carry out the purposes

of this chapter.” Id. Moreover, when the legislature listed reinstatement as one type of permissible

relief, it did not mandate reinstatement. Rather, the legislature stated that a district court “may” order

reinstatement. See id. The use of the word “may” in this context persuades us that the legislature

wanted district courts to have discretion when deciding whether to require reinstatement. See

Tex. Gov’t Code Ann. § 311.016 (West 2005) (explaining that word “may” is used in statute to

signify “discretionary authority or grant[] permission or a power”).4


        3
           We note that the statute in effect when Richardson was decided was more restrictive than
the one at issue in this case. The previous statute did not contain a provision affording district courts
the type of broad discretion to fashion remedies that the current version does. See Act of
May 15, 1947, 50th Leg., R.S., ch. 326, § 18, 1947 Tex. Gen. Laws 550, 556, amended by Act of
Apr. 28, 1955, 54th Leg., R.S., ch. 255, § 4, sec. 18, 1975 Tex. Gen. Laws 706, 708. On the
contrary, the statute simply authorized an employee who was dissatisfied with an order of the
Commission to file an appeal in a district court “asking that his order of suspension or dismissal . . .
be set aside, [and] that he be reinstated.” Id. The more limited nature of the statute in effect during
Richardson supports our determination that the holding in Richardson does not prohibit
district courts from employing remedies other than reinstatement under the current statutory scheme.
        4
            It is worth noting that the supreme court has cautioned against interpreting the
Fire Fighters’ and Police Officers’ Civil Service Act in a manner that would allow a “hearing
examiner’s arbitrary or even fraudulent decision” to leave a municipality without recourse, stating
that such an interpretation would be contrary to the public interest. City of Houston v. Clark,
197 S.W.3d 314, 320 (Tex. 2006); see also Tex. Gov’t Code Ann. § 311.021 (West 2005)
(explaining that when construing statutes, courts presume that “public interest is favored over any
private interest”). Although those statements were made in reference to a determination regarding
whether a municipality could appeal an examiner’s decision, we believe that those same
considerations compel a remand of an examiner’s decision in appropriate circumstances rather than
an automatic reinstatement as urged by the dissent.

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                Having determined that district courts have the authority to order relief other than

reinstatement in appropriate circumstances, we must now determine whether the district court abused

its discretion by ordering a remand in this case. Cf. In re General Elec. Co., 271 S.W.3d 681, 685

(Tex. 2008) (explaining that “[a] court abuses its discretion if its decision is arbitrary, unreasonable,

or without reference to guiding principles”). As a preliminary matter, we note that the discretion

afforded to district courts by the statute governing this case seems broad enough to allow for

remands when warranted.5 See Tex. Loc. Gov’t Code Ann. § 143.015(b).

                Further, we note that this case involved the improper admission of evidence.

Although we recognize that this case involves an appeal of a hearing examiner’s order, the

district court’s decision to remand the case back to the examiner is consistent with the appellate

practice of remanding a case back to a trial court when the trial court improperly admits evidence



        5
            On appeal, Steubing cites to Kirkwood v. City of Corsicana, 871 S.W.2d 544
(Tex. App.—Waco 1994, no writ), for the proposition that when an examiner’s decision is final, a
district court can never remand the proceeding back to the examiner for another decision. In that
case, the court did conclude that a district court “was not justified in . . . remanding the proceeding
to the commission for another decision,” id. at 546; however, the context in which the statement was
made reveals that the statement was limited to the facts of that case and was not an assertion that a
district court could never remand a case back to the Commission or to an examiner.

         In Kirkwood, the Commission issued an order, and Kirkwood appealed that order to the
district court. The district court determined that the Commission’s order “was not a final, appealable
order and remanded the proceeding” back to the Commission so that a final order could be issued.
Id. at 545. The Commission issued another order, and Kirkwood appealed that order as well. After
the district court issued its judgment, Kirkwood appealed that determination. The appellate court
determined that the district court erred by concluding that the first order by the Commission was not
final because all Commission orders regarding suspensions are appealable. Id. at 546. In other
words, rather than stating that remand was never appropriate, the court was simply saying that the
district court should have reached the merits of the first appeal rather than remand it because the first
order was an appealable order. Unlike the Kirkwood case, the district court in the present case
addressed the merits of Steubing’s appeal when it was filed and only determined that a remand was
appropriate after concluding that the hearings examiner had erred.

                                                   7
that should not have been admitted. See, e.g., Southwestern Bell Tel. Co. v. Radler Pavilion Ltd.

P’ship, 77 S.W.3d 482, 486 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (remanding case

after concluding that trial court improperly admitted certain testimony); see also Rector v. Texas

Alcoholic Beverage Comm’n, 599 S.W.2d 800, 801 (Tex. 1980) (remanding case back to county

court for another administrative hearing after determining that county court did not allow individual

seeking license to cross examine witnesses who testified during initial hearing).

               Moreover, in this case, and unlike the cases Steubing relies on, neither party asked

the hearing examiner to consider evidence offered outside of the hearing. On the contrary, in this

case, it was the hearing examiner who chose to consider evidence that was not submitted as part of

the hearing, and neither party was given prior notice of that decision. In light of the preceding, we

cannot conclude that the district court abused its discretion by determining that a remand would be

the most effective way to address the error committed in this case.

               For all of these reasons, we overrule Steubing’s first issue on appeal.


Attorney’s Fees

               In her second issue, Steubing contends that the district court should have awarded her

the attorney’s fees she requested in her motion for summary judgment. The local government code

states that district courts may award attorney’s fees to a prevailing party in an appeal of an

examiner’s order. Tex. Loc. Gov’t Code Ann. § 143.015(c) (West 2008). Although Steubing was

technically the prevailing party even though she did not receive all of the relief that she requested

at trial, see City of Laredo v. Almazan, 115 S.W.3d 74, 78 (Tex. App.—San Antonio 2003, no pet.),

recovery for attorney’s fees is not automatic. On the contrary, district courts have discretion when

deciding whether to award attorney’s fees to a prevailing party. See Kuykenall v. City of

                                                 8
Grand Prairie, 257 S.W.3d 515, 519 (Tex. App.—Dallas 2008, no pet.); Almazan, 115 S.W.3d at

78. Given that the City was unaware of and did not offer the evidence improperly considered by the

examiner, we cannot conclude that the district court abused its discretion by failing to order the

City to pay Steubing an attorney’s fee award. Accordingly, we overrule Steubing’s second issue

on appeal.


                                           CONCLUSION

                  Having overruled both of Steubing’s issues on appeal, we affirm the judgment of the

district court.



                                                David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Henson;
  Dissenting Opinion by Justice Henson

Affirmed

Filed: July 10, 2009




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