Opinion filed August 9, 2018




                                     In The


        Eleventh Court of Appeals
                                  __________

                               No. 11-16-00247-CV
                                   __________

                   FABIAN SCOTT BUTLER, Appellant
                                        V.
                      CITY OF BIG SPRING, Appellee


                     On Appeal from the 118th District Court
                            Howard County, Texas
                          Trial Court Cause No. 50870

                                  OPINION
      Fabian Scott Butler challenges the district court’s order granting the City of
Big Spring’s motion for summary judgment in a case arising under the Civil Service
Act. See generally TEX. LOC. GOV’T CODE ANN. §§ 143.001–.363 (West 2008 &
Supp. 2017). Butler, a fire fighter, appealed his indefinite suspension to a third-party
hearing examiner, who reduced his indefinite suspension to a one-week suspension.1
       On appeal to the district court, the City asserted that “the hearing examiner
exceeded and/or lacked jurisdiction when he made his own rules and then ordered
the reinstatement of Butler.” The City also asserted that the hearing examiner’s
decision was procured by “fraud, collusion, or other unlawful means.” See id.
§ 143.057(j) (district court may hear appeal of hearing examiner’s award only on
grounds that hearing examiner2 had no jurisdiction or exceeded its jurisdiction or
that order was procured by fraud, collusion, or other unlawful means). The trial
court granted the City’s motion for summary judgment based on these contentions.
       The trial court subsequently entered a final judgment vacating the hearing
examiner’s decision and remanding the matter back to the hearing examiner with
instructions to reopen the evidence “with regard to the proper penalty for the
violation of the Rules and Regulations of the Big Spring Fire Department.” Butler
challenges the trial court’s summary judgment in a single issue. We affirm.
                                        Background Facts
       Appellant was a lieutenant in the Big Spring Fire Department. The chief of
the department indefinitely suspended him after an incident occurring at the Federal
Correction Institute (FCI) at Big Spring. As noted in the hearing examiner’s
decision: “The undisputed evidence is that [Butler] did not have his ID with him
when he entered the [FCI] . . . . As a result[,] he was denied access to a secure area
where a patient was located.”



       1
        An indefinite suspension is equivalent to dismissal from the department.          LOC. GOV’T
§ 143.052(b); see City of Waco v. Kelley, 309 S.W.3d 536, 540 (Tex. 2010).
       2
          Although the statute refers to an “arbitration panel” having no jurisdiction or exceeding its
jurisdiction, the term includes a hearing examiner. City of Pasadena v. Smith, 292 S.W.3d 14, 19 (Tex.
2009).

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      The chief alleged in the notice of indefinite suspension that Butler was rude
and discourteous to the FCI staff. The notice charged violations of subsections (4),
(5), (8), and (12) of Section 143.051 of the Local Government Code and Big Spring
Local Civil Service Rules Section 8(B), paragraphs 4, 5, 8, and 12. See LOC. GOV’T
§ 143.051. Specifically, the notice alleged neglect of duty, discourtesy to the public
while in the line of duty, conduct prejudicial to good order, and violations of fire
department rules and regulations. The notice concluded with informing Butler that
he was indefinitely suspended from his duties with the department.
      Butler exercised the option to appeal his indefinite suspension to an
independent hearing examiner. See id. § 143.057 (appealing fire fighter may elect
to appeal to independent third-party hearing examiner instead of to civil service
commission). The hearing examiner identified the issues to be decided as follows:
(1) whether the City established the alleged violations as true by a preponderance of
the credible evidence; and (2) what is the appropriate discipline if one or more of the
alleged violations are found to be true? The hearing examiner found that Butler was
negligent for not having his ID at the FCI, that this omission caused Butler to be
unable to do his duty, and that he was rude and/or derogatory “in some manner.”
These findings by the hearing officer are not challenged on appeal.
      The hearing officer determined that the incident occurring at FCI was not so
extreme that it justified an indefinite suspension. He then examined Butler’s
disciplinary record involving eleven incidents occurring over approximately a five-
year period.   The hearing officer determined that, out of the previous eleven
incidents, Butler was only formally disciplined on two occasions. As for the
remainder of the incidents, the hearing officer characterized them as “counselings
which warn against future violations (for arguing or hostility or rudeness); notations
that similar complaints would not be tolerated; that additional corrective action could
result; and even one that sends [Butler] home for the rest of his shift.”
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      The hearing examiner determined that Butler’s past disciplinary record did
not lead “directly to a termination in this case.” He cited an arbitration treatise
entitled “The Common Law of the Workplace,” and he quoted the following
provision from it:
            Unless otherwise agreed, discipline for all but the most serious
      offenses must be imposed in gradually increasing levels. The primary
      objective of discipline is to correct rather than to punish. Thus, for most
      offenses, employers should use one or more warnings before
      suspensions, and suspensions before discharge.
National Academy of Arbitrators, “The Common Law of the Workplace, The Views
of Arbitrators § 6.7(3)(a) (2nd ed.). The hearing examiner noted that Butler had
never been suspended in the past and that the City’s way of handling Butler “never
gave him pause to consider that he might be fired for his alleged conduct in the
future.” The hearing examiner stated: “Because [Butler] never suffered increasing
levels of discipline he was never confronted in a meaningful way to correct his
course. Tolerance of [Butler’s] alleged behavior did neither side any good.” The
hearing examiner concluded: “Since, the principle of progressive discipline has been
ingrained into the ‘just cause’ standard, I find there is no ‘just cause’ to terminate
[Butler] and that the appropriate discipline for charges shown to be true is a one-
week suspension.”
      The City appealed to the district court alleging that the hearing examiner
lacked or exceeded his authority and jurisdiction by imposing principles of arbitral
law by relying upon the arbitration treatise cited above. See City of Houston v. Clark,
197 S.W.3d 314, 324 (Tex. 2006) (holding municipality, as well as employee, has
right to appeal hearing examiner’s award in district court). The City also asserted
that the hearing examiner’s award was procured by fraud, collusion, or other
unlawful means. The City asserted that Butler was untruthful in the proceeding
before the hearing examiner where he sought reinstatement because he subsequently

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filed a lawsuit against the City wherein he asserted that reinstatement was
impractical and unworkable.       As noted previously, the City filed a summary
judgment on these same grounds. Butler filed a plea to the jurisdiction and his own
motion for summary judgment. The trial court granted the City’s motion for
summary judgment and denied Butler’s plea to the jurisdiction and motion for
summary judgment.
                                       Analysis
      We review a trial court’s grant or denial of summary judgment de novo.
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). To
prevail on a traditional motion for summary judgment, the moving party must prove
that “there is no genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of law on the issues expressly set out in the motion.” TEX.
R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).
“When reviewing a summary judgment, we take as true all evidence favorable to the
nonmovant, and we indulge every reasonable inference and resolve any doubts in
the nonmovant’s favor.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150,
157 (Tex. 2004). When there are competing summary judgment motions on the
same issues, and the trial court grants one and denies the other, we consider the
summary judgment evidence presented by both sides and determine all questions
presented, and if we determine that the trial court erred, we render the judgment the
trial court should have rendered. Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005).
      If a classified fire fighter or police officer is involuntarily suspended, he may
appeal the suspension to either the commission or an independent third-party hearing
examiner. LOC. GOV’T § 143.057(a). If the appeal is to a hearing examiner, the
examiner has the same duties and powers as the commission. Id. § 143.057(f). The


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ultimate decision options of the commission—and hearing examiner—are specified
in Section 143.053:
      (e) In its decision, the commission shall state whether the suspended
      fire fighter or police officer is:
             (1) permanently dismissed from the fire or police department;
             (2) temporarily suspended from the department; or
             (3) restored to the person’s former position or status in the
                 department’s classified service.
      (f) If the commission finds that the period of disciplinary suspension
      should be reduced, the commission may order a reduction in the period
      of suspension.
Id. § 143.053(e)–(f); see Kelley, 309 S.W.3d at 542–43.
      When a fire fighter or police officer elects to have his suspension reviewed by
an independent third-party hearing examiner, instead of the commission, the hearing
examiner’s decision is final and binding on all the parties except on the narrow
grounds listed in Section 143.057(j). LOC. GOV’T § 143.057(c), (j); see City of
DeSoto v. White, 288 S.W.3d 389, 392 (Tex. 2009). One of the permissible grounds
for an appeal is that the hearing examiner acted without or exceeded his jurisdiction.
LOC. GOV’T § 143.057(j). A hearing examiner exceeds his jurisdiction “when his
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.” Kelley, 309 S.W.3d
at 542 (quoting City of Pasadena v. Smith, 292 S.W.3d 14, 21 (Tex. 2009)). “[A]
hearing examiner is not authorized to make rules, but must follow those prescribed
by the Legislature.” Id. (citing Smith, 292 S.W.3d at 20).
      The City contends that the hearing examiner exceeded his jurisdiction by
relying on the treatise in a manner that conflicted with the applicable rules of the Big
Spring Fire Department. We agree. Rule 202.0 of the Big Spring Fire Department
is entitled “Counseling and Disciplinary Action.” As per its stated purpose, the
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rule’s procedures guide fire department supervisors in dealing with disciplinary
problems they may encounter.        The rule requires that supervisors administer
discipline in a “corrective, progressive, and lawful manner.” With respect to the
“progressive” component, the rule provides as follows:
      Progressive in that discipline will normally begin with a verbal
      counseling and, when circumstances of separate or related incidents
      warrant, proceed to written reprimands then demotion, suspension, or
      indefinite suspension. An incident of misconduct may require any of
      these forms of disciplinary action whether or not a lesser form has
      preceded the action. This will depend on the severity of the offense.
(Emphasis added).
      By its express terms, the fire department rule does not require that a lesser
form of disciplinary action must precede the disciplinary action taken. However, the
hearing examiner determined that the City’s sanction of indefinite suspension was
improper because the City had not previously imposed the lesser sanction of a
temporary suspension. In making this determination, the hearing examiner referred
to and followed a “standard” that was contrary to the applicable fire department rule.
Thus, the hearing officer made a new rule or policy because he followed a standard
that differed from the fire department rule. See Smith, 292 S.W.3d at 20 (“[T]he Act
does not empower a hearing examiner to make rules.”). Accordingly, the hearing
examiner exceeded his jurisdiction.
      Butler contends that the hearing examiner’s references to The Common Law
of the Workplace were “benign.” He asserts that the portions of the treatise cited by
the hearing examiner are consistent with the applicable fire department rule with
respect to progressive discipline. We disagree with Butler’s arguments. The hearing
examiner stated as follows in his decision: “Since the principle of progressive
discipline has been ingrained into the ‘just cause’ standard, I find that there is no
‘just cause’ to terminate [Butler] . . . .” This statement indicates that the hearing

                                          7
examiner imposed a standard that he derived from the treatise because he had
previously cited the treatise when discussing the “just cause” principle. The pages
of the treatise that he cited contain a discussion of “Reasons Constituting Just Cause”
and “Magnitude of Discipline; Progressive Discipline.”
      The portion of the treatise that the hearing examiner quoted states in relevant
part: “Thus, for most offenses, employers should use one or more warnings before
suspensions, and suspensions before discharge.” The hearing examiner essentially
cited this portion of the treatise to determine that the City’s indefinite suspension
was unwarranted because it had not imposed increasing levels of discipline prior to
imposing the indefinite suspension. However, the fire department rule expressly
provides that a higher form of disciplinary action may be imposed whether or not a
lesser form has previously been imposed. Accordingly, the hearing examiner
imposed an interpretation of progressive discipline that differed from the existing
fire department rule.
      Butler also contends that the City is judicially estopped from asserting that the
hearing examiner exceeded his jurisdiction by relying on the treatise because the
City cited other treatises in its post-submission brief to the hearing examiner.
Judicial estoppel precludes a party who successfully maintained a position in one
proceeding from later adopting a clearly inconsistent position in a subsequent
proceeding. Ferguson v. Building Materials Corp. of Am., 295 S.W.3d 642, 643
(Tex. 2009).    Its essential function is to “prevent the use of intentional self-
contradiction as a means of obtaining unfair advantage.” Pleasant Glade Assembly
of God v. Schubert, 264 S.W.3d 1, 6 (Tex. 2008). Judicial estoppel is an equitable
doctrine that the district court has the discretion to invoke. Perryman v. Spartan
Tex. Six Capital Partners, Ltd., 546 S.W.3d 110, 117 (Tex. 2018). We review the
trial court’s decision pertaining to judicial estoppel for an abuse of discretion. Id.


                                           8
        The record does not indicate that the trial court abused its discretion by
implicitly rejecting Butler’s judicial estoppel contention.                        We first note that
jurisdictional matters cannot be waived. See Tex. Ass’n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 445 (Tex. 1993). Furthermore, the City neither cited the
treatise relied upon by the hearing examiner nor took a position inconsistent with the
applicable fire department rule. Accordingly, we overrule Butler’s sole issue on the
basis that the trial court properly granted the City’s motion for summary judgment
because the hearing examiner exceeded his jurisdiction. We do not reach the City’s
other contentions for overturning the hearing examiner’s decision. Also, we deny
as moot the City’s “Motion for Leave to File Exhibit” pertaining to documents
arising from a federal lawsuit that Butler filed against the City.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           JUSTICE


August 9, 2018
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.3

Willson, J., not participating.




        3
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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