                              NUMBER 13-07-00319-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


CITY OF WESLACO, TEXAS,                                                         Appellant,

                                              v.

CLAUDIO LUCIO,                                                                  Appellee.


                    On appeal from the 139th District Court
                          of Hidalgo County, Texas.


                           MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Rodriguez

       This is an appeal of a summary judgment. Appellant, the City of Weslaco, Texas

(the City), filed a declaratory judgment action against appellee, Claudio Lucio, a firefighter.

The City asked the trial court to declare that the hearing examiner exceeded his jurisdiction

in a disciplinary action taken against Lucio. See TEX . GOV'T CODE ANN . § 143.057 (Vernon

2008). Upholding the jurisdiction of the hearing examiner to hear the appeal of Lucio's
suspension, the trial court denied the City's motion for summary judgment and granted

Lucio's motion for summary judgment. By a single issue, the City contends the trial court

erred in denying its motion for summary judgment. We affirm.

                        I. Standard of Review and Applicable Law

       The proper standard of review is de novo because all of the issues to be resolved

in this case are questions of law. We will uphold a traditional summary judgment only if

the summary judgment record establishes the absence of a genuine issue of material fact

and that the movant is entitled to judgment as a matter of law on a ground set forth in the

motion. TEX . R. APP. P. 166a(c); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

(Tex. 2005) (concluding that a summary judgment is reviewed de novo). The district court

denied the City's motion and granted Lucio's motion for summary judgment on the basis

of jurisdiction. Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex. 2004) (per curiam)

(providing that the determination of jurisdiction is a question of law reviewed de novo); Tex.

Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (same). When both

parties file motions for summary judgment and one is granted and one is overruled, we

consider the summary judgment evidence presented by both sides and determine all

questions presented. Valence Operating Co., 164 S.W.3d at 661.

       The trial court must enforce the hearing examiner's award unless the City, in this

case, shows he exceeded his jurisdiction. See TEX . LOCAL GOV'T CODE ANN . § 143.057(j).

The standard to judge whether a hearing examiner was without jurisdiction or exceeded

his jurisdiction "has been interpreted as an 'abuse of authority' standard." City of Laredo

v. Leal, 161 S.W.3d 558, 562-63 (Tex. App.–San Antonio 2004, pet. denied); Nuchia v.

Tipy, 973 S.W.2d 782, 786 (Tex. App.–Tyler 1998, no pet.). An abuse of authority occurs

when a decision is so arbitrary and unreasonable that it amounts to a clear and prejudicial

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error of law. City of Carrollton Civil Serv. Comm'n v. Peters, 843 S.W.2d 186, 188 (Tex.

App.–Dallas 1992, writ denied). A hearing examiner's decision is reviewed "only for

reasonableness, not correctness." See Bradford v. Pappillion, 207 S.W.3d 841, 845 (Tex.

App.–Houston [14th Dist.] 2006, no pet.).

                                              II. Background1

        On June 25, 2002, Lucio was notified that he was indefinitely suspended as a

firefighter. This disciplinary letter informed Lucio that he had the right to appeal this

disciplinary action by "requesting, in writing, a hearing before the City's Civil Service

Commission, or at [his] option, a hearing before an independent third party hearing

examiner." In response, Lucio submitted a letter to the president of the City's Fire Fighters

Association, International Association of Firefighters, Local Union No. 3207 (the Union)

contesting the discharge; the letter was forwarded to the Union's grievance committee.

Lucio was informed by the committee that his complaint was denied because his letter was

not submitted in the form set out in the collective bargaining agreement (CBA). The

Union's response expressly stated that because Lucio's "letter was not submitted on the

form agreed to by the parties," it was "considered a complaint and not a grievance." The

committee did not address the merits of Lucio's complaint.

        On July 3, 2002, Lucio filed notice of his appeal of the disciplinary action with the

City's Director of the Civil Service Commission. The notice stated that Lucio was making

a written request for a hearing before an independent third-party hearing examiner under

chapter 143 of the government code. See TEX . GOV'T CODE ANN . § 143.057. On July 29,



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           As this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite them
here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See T EX .
R. A PP . P. 47.4.

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2002, in accordance with Lucio's request, the Civil Service Director wrote the American

Arbitration Association (AAA) stating that Lucio had chosen "to appeal a disciplinary action

and elected for his appeal to be heard by an impartial hearing examiner as per Chapter

143.057 of the Texas Local Government Code." A copy of this letter was forwarded to the

City's counsel of record.

       The parties mutually selected a hearing examiner to hear the dispute concerning the

legitimacy of Lucio's suspension. After denying the City's motion regarding the examiner's

lack of jurisdiction to hear the appeal, the hearing examiner proceeded with a full

evidentiary hearing. On January 12, 2004, after concluding he had jurisdiction, the hearing

examiner found that Lucio had worked for his trucking business during hours that he was

being paid to work for the City and should be punished. Finding that indefinite suspension

was not a reasonable discipline for the offense, the hearing examiner found Lucio should

be reinstated at the rank of firefighter.

       After the hearing examiner issued his opinion, the City filed suit in district court

contending that the CBA precluded appeal of this disciplinary action to a hearing examiner.

Each party filed a motion for summary judgment on jurisdiction issues. The district court

denied the City's motion and granted Lucio's motion. This appeal ensued.

                                            III. Analysis

       By its sole issue, the City contends that the trial court erred in denying its motion for

summary judgment because the hearing examiner lacked subject-matter jurisdiction over

Lucio's appeal. It asserts that Lucio waived his right to appeal to a hearing examiner by

electing to file a disciplinary grievance with the Union Grievance Committee pursuant to

article 19 of the CBA to the exclusion of his statutory rights under chapter 143 of the

government code. See TEX . LOCAL GOV'T CODE ANN . § 143.057(j). The City argues that,

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because the hearing examiner had no jurisdiction to hear the case, the trial court should

have granted the City's summary judgment and overturned Lucio's award. Lucio responds

that the hearing examiner's finding of jurisdiction was reasonable and did not present a

clear and prejudicial error of law; therefore, the trial court correctly concluded the hearing

examiner had jurisdiction of Lucio's appeal and did not err in granting his motion for

summary judgment. See Bradford, 207 S.W.3d at 845; Peters, 843 S.W.2d at 188. We

agree.

         The Union concluded Lucio's submission was "not a grievance."                The Union

classified it as a "complaint." The Union rejected Lucio's letter based on its form, not on

its merits. The letter was not acted upon as a grievance. The Union did not investigate or

review Lucio's submission on its merits. The Union did not determine whether or not a

grievance existed. Thus, the record establishes that there was no grievance presented or

considered. We cannot conclude, therefore, that Lucio appealed his suspension through

the contract grievance procedure.

         The City also argues that Lucio misinterpreted and misstated the CBA. The City

claims that Lucio's actions, not the Union's actions, determine whether he has elected his

remedies and waived further proceedings. Section 19.02 of the CBA provides:

         It is specifically and expressly understood that filing a grievance under this
         article that has as its last step final and binding arbitration, constitutes an
         election of remedies and waiver of any and all rights by both parties. . . .

The City argues that the filing of the grievance is the act of election. However, again, by

its own determination, Lucio did not file a grievance. We are not persuaded by this

argument.

         Finally, the City asserts that Lucio's position regarding the filing of a grievance is not

supported because he ignores the fact that the CBA defines a grievance as "any dispute,

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claim or complaint involving . . . discipline, discharge or demotion." Section 19.01 of the

CBA does provide this definition. However, the City, itself, ignored the fact that the CBA

defines "grievance" as a "complaint" when it notified Lucio that it considered his letter a

complaint, not a grievance. Thus, we find this argument unpersuasive.

       Based on the above, we conclude that the hearing examiner's finding of jurisdiction

was reasonable; it was not arbitrary and unreasonable as to amount to a clear and

prejudicial error of law. See Peters, 843 S.W.2d at 188. The City did not show that the

hearing examiner was without jurisdiction or that he exceeded his jurisdiction. See TEX .

LOCAL GOV'T CODE ANN . § 143.057(j). Thus, the trial court did not err in determining the

hearing examiner had jurisdiction of Lucio's appeal, and it did not err in denying the City's

motion for summary judgment and in granting Lucio's motion for summary judgment.

                                      IV. Conclusion

       Accordingly, we affirm the judgment of the trial court.




                                                    NELDA V. RODRIGUEZ
                                                    Justice

Memorandum Opinion delivered and
filed this 22nd day of December, 2008.




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