                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-11-00900-CV

                                        Gary BIESENBACH,
                                             Appellant

                                              v.
                                       THE CITY OF SAN
                                  THE CITY OF SAN ANTONIO,
                                           Appellee

                      From the 73rd Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009-CI-13675
                             Honorable Victor Negron, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: July 17, 2013

REVERSED AND DISMISSED

           This appeal involves actions taken with regard to a notice of indefinite suspension issued

to Firefighter Gary Biesenbach. After an independent hearing examiner ordered Biesenbach to be

reinstated with back pay, the City of San Antonio filed the underlying cause in district court

asserting the “hearing examiner” was an arbitrator, and the arbitrator exceeded his jurisdiction in

issuing his decision. The trial court agreed with the City and remanded the matter for additional

arbitration limited to a specific issue. In this appeal, Biesenbach challenges the trial court’s

judgment on numerous grounds.
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                                             BACKGROUND

        On May 16, 2007, Biesenbach was issued eleven notices of proposed suspension by Fire

Chief Charles N. Hood for violations of civil service rules of the San Antonio Fire Department.

Six of the notices were for indefinite suspension. 1

        After a meeting regarding the notices, Biesenbach and Chief Hood subsequently entered

into a Last Chance Agreement whereby Chief Hood agreed to forgo disciplinary action in exchange

for Biesenbach’s agreement to various terms. Because of Biesenbach’s prior attendance problems,

one of the terms of the Agreement required Biesenbach to obtain prior authorization from the fire

chief or a deputy fire chief before taking any leave. When Biesenbach subsequently took leave

without the prior authorization required by the Agreement, Chief Hood issued a new notice of

indefinite suspension. Although the Agreement stated that Biesenbach would be indefinitely

suspended for failure to comply with the terms of the Agreement “without the right of appeal,” the

notice of indefinite suspension stated that Biesenbach had the right to appeal his suspension, and

Biesenbach timely gave notice of his intent to appeal to an independent hearing examiner.

        The hearing examiner issued an opinion, and his title of “hearing examiner” appears after

his signature. Although Chief Hood’s notice of indefinite suspension cited the Fire Department’s

rules 6.04 and 6.09, the hearing examiner noted that the City did not contend that these rules served

as an independent basis for the indefinite suspension. Instead, the City’s brief stated that the notice

was issued because Biesenbach violated the Agreement. Biesenbach argued that the Agreement

was invalid and unenforceable, while the City argued that the Agreement was valid and binding.

The hearing examiner concluded that the Agreement was precluded by a Collective Bargaining

Agreement in which the City recognized the International Association of Fire Fighters, Local 624


1
  “An indefinite suspension is equivalent to dismissal from the department.”   TEX. LOC. GOV’T CODE ANN.
§ 143.052(b) (West 2008).

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as the exclusive bargaining agent for all San Antonio firefighters. 2 The hearing examiner noted

that the Agreement would have been valid and enforceable if it had been signed by the Association.

Accordingly, the hearing examiner did not sustain the charge in the notice of indefinite suspension

and awarded reinstatement and back pay as a remedy. The hearing examiner’s opinion further

stated that the parties agreed at the hearing that the hearing examiner would retain jurisdiction

over: (1) the issue of back pay in the event the parties could not agree on the amount; and (2) the

issue of attorney’s fees.

         The City filed a petition in the trial court. In its petition, the City alleged that Biesenbach

did not have the right to appeal his indefinite suspension to a hearing examiner. Instead, the City

asserted that it agreed to arbitrate only the issue of whether Biesenbach violated the terms of the

Agreement. The City further contended that the arbitrator exceeded the scope of his authority in

determining the Agreement was not valid or enforceable. The City also sought declaratory relief

that the Agreement was valid and enforceable.

         After a bench trial, the trial court entered a judgment concluding that the arbitrator

exceeded his jurisdiction. The trial court ordered that the arbitration award issued by the arbitrator

be withdrawn and remanded the matter for arbitration to determine whether the Agreement was

violated by Biesenbach and to award “any applicable remedies available to the prevailing party.”

The judgment states, “The issue of attorney’s fees for Mr. Biesenbach is left for the arbitrator to

decide.”

                                   HEARING EXAMINER V. ARBITRATOR

         In arguing that Biesenbach waived his right to appeal to a hearing examiner, the City relies

on the portion of the Agreement stating that Biesenbach “shall be indefinitely suspended without


2
 After the hearing examiner issued his opinion, this court addressed this issue in Mata v. City of San Antonio, No. 04-
11-00311-CV, 2012 WL 1364594, at *5 (Tex. App.—San Antonio Apr. 28, 2012, pet. denied) (mem. op.).

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the right of appeal” in the event he fails to comply with the terms of the Agreement. Based on its

contention that Biesenbach waived the right to appeal to a hearing examiner, the City contends the

person who heard the appeal was, in reality, an arbitrator, and the City agreed to arbitrate only the

limited issue of whether Biesenbach violated the Agreement. By arbitrating the validity of the

Agreement, the City contends that the arbitrator exceeded his authority.

       The City’s argument, however, appears to ignore the actions taken after Biesenbach’s

alleged violation of the Agreement. It is undisputed that Chief Hood issued a notice of indefinite

suspension after Biesenbach allegedly violated the Agreement by taking leave without the

authorization required by the Agreement. The notice contained a “NOTICE OF RIGHT OF

APPEAL” wherein Biesenbach acknowledged receipt of the notice of indefinite suspension and

that he had been notified that he had “ten days to file a written appeal of [the] suspension with the

Fire Fighters’ and Police Officers’ Civil Service Commission for hearing before the Commission

or an independent third party hearing examiner.”         Section 143.057(a) of the Texas Local

Government Code mandates that this language be included in any letter of disciplinary action

issued to a fire fighter. TEX. LOC. GOV’T CODE ANN. § 143.057(a) (West 2008) (providing that a

letter of disciplinary action issued to a firefighter “must state that in an appeal of indefinite

suspension … the appealing fire fighter … may elect to appeal to an independent third party

hearing examiner instead of to the commission”) (emphasis added). Accordingly, by issuing the

notice of indefinite suspension, the City waived the provision of the Agreement that would have

deprived Biesenbach of his right of appeal and invoked the statutory mandate that permitted

Biesenbach to appeal to an independent hearing examiner. See id.

                                          JURISDICTION

       Biesenbach asserts in his brief that the decision by the hearing examiner was not final

because it did not resolve the issue of attorney’s fees. Although the City does not address this
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issue in its brief, the City expressly noted in its petition, “The arbitrator has retained jurisdiction

of the matter to settle ongoing issues.”

       In order to appeal a hearing examiner’s decision to district court, the decision must be a

final decision. TEX. LOC. GOV’T CODE ANN. § 143.015(a) (West 2008) (noting appeal to district

court requires a petition to be filed within a given deadline after the final commission decision);

see also City of Pasadena v. Smith, 292 S.W.3d 14, 21-22 (Tex. 2009) (citing section 143.015(a)

to determine deadline for filing petition to appeal hearing examiner’s decision); Collins v. Tex

Mall, L.P., 297 S.W.3d 409, 415 (Tex. App.—Fort Worth 2009, no pet.) (“Texas law generally

recognizes that an essential prerequisite to the trial court’s power to review an arbitral award is

that the arbitrator’s decision be final, not interlocutory.”). A decision or judgment which does not

dispose of a claim for attorney’s fees is not a final decision or judgment. McNally v. Guevara, 52

S.W.3d 195, 196 (Tex. 2001); Rosedale Partners, Ltd. v. 131st Judicial Dist. Court, Bexar County,

869 S.W.2d 643, 649 (Tex. App.—San Antonio 1984, orig. proceeding). Because the hearing

examiner retained jurisdiction over the issue of attorney’s fees, his decision was interlocutory, and

the trial court was without jurisdiction to consider an appeal of the decision.

                                DECLARATORY JUDGMENT CLAIM

       In remanding the matter to arbitrate the issue of whether Biesenbach violated the

Agreement, the trial court necessarily declared the Agreement to be valid and enforceable, which

is contrary to the decision reached by the hearing examiner. In his brief, Biesenbach asserts that

the trial court was without jurisdiction to consider the City’s declaratory judgment claim because

the only relief the City could seek was the limited appeal under section 143.057(j).

       “The hearing examiner’s decision is final and binding on all parties.” TEX. LOC. GOV’T

CODE ANN. § 143.057(c) (West 2008). Section 143.057(j) limits the grounds on which a district

court may hear an appeal of a hearing examiner’s award. Id. at § 143.057(j). Although the City
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is permitted to appeal the award, the City’s appeal is similarly constrained to the limited grounds.

See City of Waco v. Kelley, 197 S.W.3d 324, 325 (Tex. 2006); City of Houston v. Clark, 197

S.W.3d 314, 324 (Tex. 2006). Under section 143.057(j), the only grounds the trial court can

consider are: (1) whether the hearing examiner was without jurisdiction or exceeded his

jurisdiction; or (2) whether the order was procured by fraud, collusion, or other unlawful means.

TEX. LOC. GOV’T CODE ANN. § 143.057(j) (West 2008). “[A] hearing examiner exceeds his

jurisdiction when his acts are not authorized by the [Fire Fighters and Police Officers Civil Service]

Act or are contrary to it, or when they invade the policy-setting realm protected by the

nondelegation doctrine.” City of Pasadena, 292 S.W.3d at 21. “[A]sserting that a decision made

by a hearing examiner is incorrect is not the same as asserting that the examiner did not have

jurisdiction.” Id.

       “A declaratory judgment action cannot create jurisdiction but is merely a procedural device

for deciding cases already within a court’s jurisdiction.” City of Houston v. Williams, 99 S.W.3d

709, 713 (Tex. App.—Houston [14th Dist.] 2003, no pet.). “Indeed, a suit for declaratory judgment

does not allow a district court to review an agency action not otherwise reviewable.” Id.; see also

City of Houston v. Clark, 252 S.W.3d 561, 565 & n.3 (Tex. App.—Houston [14th Dist.] 2008, no

pet.) (noting requested declaration could address only whether hearing examiner exceeded

jurisdiction not the merits of the hearing examiner’s decision). The City appears to be arguing that

the trial court had jurisdiction to grant the declaratory relief because the enforceability of the

Agreement was not an issue the hearing examiner had jurisdiction to determine. However, because

the hearing examiner’s decision was not final, the trial court was without jurisdiction to consider

whether the hearing examiner’s decision exceeded his jurisdiction. “A trial court has jurisdiction

to make a declaration regarding whether a hearing examiner exceeded his jurisdiction when the

court also has jurisdiction under section” 143.057(j). City of Houston v. Proler, 373 S.W.3d 748,
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767 n. 18 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Because the hearing examiner’s

decision was not a final decision, the trial court did not have jurisdiction to consider the hearing

examiner’s decision or the City’s declaratory relief claim that the hearing examiner exceeded his

jurisdiction in determining the validity of the Agreement.

                                           CONCLUSION

       Because the decision issued by the hearing examiner was not a final decision, the trial court

did not have jurisdiction to review the decision or to make a declaration regarding whether the

hearing examiner exceeded his jurisdiction. Accordingly, the trial court’s judgment is reversed,

and the underlying cause is dismissed without prejudice to the parties’ right to appeal under section

143.057(j) when the hearing examiner’s decision becomes final.

                                                      Karen Angelini, Justice




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