                                NUMBER 13-10-00688-CV

                                   COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


CITY OF MISSION, TEXAS,                                                                Appellant,

                                                 v.

ALEJANDRO GONZALEZ,                                                                    Appellee.


                      On appeal from the 332nd District Court
                            of Hidalgo County, Texas.


                                MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Garza and Benavides
               Memorandum Opinion by Chief Justice Valdez
       Appellant, the City of Mission, appeals from the district court’s dismissal of its suit

challenging the award of an independent hearing examiner that reinstated appellee,

Alejandro Gonzalez, a firefighter, who appellant had suspended indefinitely (i.e.,

terminated) from employment.1 By three issues, appellant argues that the dismissal of


       1
           See Miller v. City of Houston, 309 S.W.3d 681, 684 (Tex. App.—Houston [14th Dist.] 2010, no
pet.) (“Indefinite suspension is the equivalent of termination[.]”).
its suit for lack of jurisdiction was improper because:                 (1) the district court has

jurisdiction to decide whether a hearing examiner exceeded his jurisdiction; (2) the

district court has jurisdiction to decide whether a hearing examiner’s award was

procured by “unlawful means”; and (3) appellant was prevented from deposing Jessica

Martinez prior to the granting of appellee’s plea to the jurisdiction. We affirm.

                                        I. BACKGROUND

         A.     Notice of Indefinite Suspension

         In a notice letter dated April 29, 2010, appellant informed appellee that he was

being indefinitely suspended from employment. The notice letter set forth two grounds

for the disciplinary action: (1) improper conduct by appellee in (a) permitting a female

visitor to have access to the fire station at unauthorized hours and (b) allowing her to

use his security “swipe” card; and (2) “inappropriate behavior” that occurred during the

visit.

         B.     Appeal to Independent Hearing Examiner

         Appellee denied the charges and appealed to an independent hearing examiner,

who held an evidentiary hearing and subsequently issued a report describing the

evidence presented at the hearing.2 According to the report, the examiner found that

“appellee engaged in the conduct set forth in the notice of disciplinary action as it

pertained to violation of rules on visitors and the misuse of his personal identification

‘swipe’ card.” The examiner found that there was no evidence to support the charge of

other “inappropriate behavior.” In his report, the examiner concluded that “disciplinary

action appropriate to those violations [was] warranted.”


         2
           Appellee’s written request for a hearing and denial of the charges made against him was dated
April 30, 2010. The hearing before the hearing examiner was held on August 12, 2010.

                                                   2
       The report went on to note, however, that “[i]ndefinite suspension (termination) is

the extreme disciplinary action reserved for internal ‘capital offenses’ such as theft,

fighting, lawbreaking, safety breaches, and other violations that may not require the use

of progressive discipline.” According to the report, “Testimony from several witnesses

revealed that it was commonplace for violations of the visitor policy throughout the

various fire stations in the department, [to go] without disciplinary actions.” The hearing

examiner also found it significant that “[t]here was no evidence presented . . . to support

an assumption [that] ‘inappropriate behavior’” took place during the visit, as alleged in

the notice of suspension. Based on the foregoing, the examiner concluded that “a

reasonable person would agree that the charges in [and] of themselves do not support

the extreme discipline of indefinite suspension (termination).”

       In his report, the hearing examiner also noted:

       [Appellee] admitted to violations of . . . department rules to the extent such
       violations were supported by the evidence and he stated he would not
       repeat such violations in the future. His actions were a result of personal
       problems with the mother of his child and he admitted he did not consider
       consequences. His actions created no harm or damage to the department
       nor was there any evidence presented by [appellant] claiming actual harm
       or damage . . . .

Ultimately, the examiner concluded that the indefinite suspension was excessive for the

violations committed and ordered the indefinite suspension reduced to a temporary

suspension without pay for a term of ten days, awarding appellee back pay, less the

period of suspension.

       C. Proceedings in District Court

       Subsequently, appellant filed an action for declaratory judgment in district court,

seeking to overturn the examiner’s award. Appellant alleged two grounds for relief: (1)



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the examiner exceeded the scope of his authority by making a finding about a charge of

sexual harassment that was not made in the notice of indefinite suspension; and (2) the

examiner’s award was procured by “unlawful means” because appellee was untruthful

in his testimony during the hearing. Appellee filed a plea to the jurisdiction, which was

granted by the district court. The district court also granted a motion for protective order

filed by appellee in response to appellant’s notice of deposition and discovery subpoena

for appellee’s female visitor. This appeal ensued.

                                       II. DISCUSSION

         By three issues, appellant argues that the district court erred in granting

appellee’s plea to the jurisdiction.

         A.     Standard of Review

         A plea to the jurisdiction is a dilatory plea used to defeat a cause of action

without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject

matter jurisdiction. Id.; see Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.

1999). Whether a trial court has subject matter jurisdiction is a question of law that we

review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.

2002).

         The plaintiff has the burden to plead facts affirmatively showing that the trial court

has jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.

1993); City of Fort Worth v. Davidsaver, 320 S.W.3d 467, 473 (Tex. App.—Fort Worth

2010, no pet.). We construe the pleadings liberally in favor of the pleader, look to the



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pleader’s intent, and accept as true the factual allegations in the pleadings.           See

Miranda, 133 S.W.3d at 226, 228; City of Fort Worth v. Crockett, 142 S.W.3d 550, 552

(Tex. App.—Fort Worth 2004, pet. denied). If a plea to the jurisdiction challenges the

existence of jurisdictional facts, we consider relevant evidence submitted by the parties

when necessary to resolve the jurisdictional issues raised, as the trial court is required

to do, even those facts which may implicate the merits of the cause of action. Miranda,

133 S.W.3d at 227; Blue, 34 S.W.3d at 555 (confining evidentiary review to evidence

that is relevant to the jurisdictional issue); see City of Waco v. Kirwan, 298 S.W.3d 618,

622 (Tex. 2009).

       A trial court’s review of a plea to the jurisdiction challenging the existence of

jurisdictional facts mirrors that of a traditional motion for summary judgment. Miranda,

133 S.W.3d at 228; see TEX. R. CIV. P. 166a(c). The defendant is required to meet the

summary judgment standard of proof for its assertion that the trial court lacks

jurisdiction; once the defendant meets its burden, the plaintiff is then required to show

that there is a disputed material fact regarding the jurisdictional issue. Miranda, 133

S.W.3d at 228. If the evidence creates a fact question regarding jurisdiction, the trial

court must deny the plea to the jurisdiction and leave its resolution to the fact finder. Id.

at 227-28. On the other hand, if the evidence is undisputed or fails to raise a fact

question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as

a matter of law. Id. at 228.

       B.     Applicable Law

       “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



                                              5
that the order was procured by fraud, collusion, or other unlawful means.” TEX. LOC.

GOV'T CODE ANN. § 143.057(j) (West 2008). The statute refers to an “arbitration panel”

exceeding its jurisdiction, but the term includes a hearing examiner. City of Pasadena

v. Smith, 292 S.W.3d 14, 19 (Tex. 2009).

       C.     Analysis

       1. Jurisdiction of Hearing Examiner

       In its first issue, appellant argues that the district court erred in concluding that

the hearing examiner did not exceed his jurisdiction. A hearing examiner exceeds his

jurisdiction when his acts are not authorized by the Fire Fighters and Police Officers

Civil Service Act (the “Act”) or are contrary to it, or when they invade the policy-setting

realm protected by the non-delegation doctrine. Id. at 21.

       In its live petition, appellant alleged that “the hearing examiner exceeded and/or

lacked jurisdiction when he ordered the reinstatement of [appellee] to his job” because:

(1) the examiner found that appellee had not committed a violation of Department policy

that was never alleged (i.e., sexual harassment); and (2) the examiner stepped into the

non-delegable role of policymaker when he concluded that the Department’s security

policy should not be strictly enforced.

       With regard to appellant’s first allegation (i.e., that the examiner exonerated

appellant of sexual harassment), we note that the hearing examiner’s report, which was

attached to appellant’s live       petition and    incorporated   therein   by reference,

acknowledged appellant’s position that appellee “was not charged with ‘sexual

harassment,’ [and] therefore, discussion of this claim was irrelevant.” Elsewhere in the

report, it is clear that the examiner wrestled with the question of whether an allegation of



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sexual harassment was included or could be implied in the notice of indefinite

suspension, which used the murky language “inappropriate behavior.” This effort by the

hearing examiner to determine the specific grounds for the disciplinary action imposed

by appellant was consistent with his fact-finding role. See City of Athens v. MacAvoy,

353 S.W.3d 905, 911 (Tex. App.—Tyler 2011, pet. denied) (“[T]he statutory scheme for

hearing examiners is organized around the examiners acting as fact finders with respect

to the allegations against covered employees.”).

       In his report, the examiner returned repeatedly to appellant’s stated position that

“this decision was not based on sexual harassment.” The report indicates that the

examiner struggled with appellant’s position (i.e., that the charge of “inappropriate

behavior” did not include a sexual-harassment component). Ultimately, the examiner

offered the following remarks to reconcile what he perceived to be an inconsistency in

appellant’s position:

       I have determined in agreement with [appellant] that the entire issue of
       “sexual harassment” was not the sole factor for disciplinary action in this
       case. Although there was considerable dialogue related to the subject
       and evidence presented reflecting disparity [in] treatment, it is this
       arbitrator’s opinion that we must restrict the case to the evidentiary
       findings. [Appellee] did in fact violate certain rules and regulations and
       therefore, disciplinary action appropriate to those violations is warranted.

       According to the report, the examiner found some of the violations to be true, but

he found “no evidence” to support the allegation of “inappropriate behavior.”          The

examiner was careful to note that he was not considering what he perceived to be the

sexual-harassment component of the allegation.           The report concludes with the

examiner’s finding that “[i]f, in fact, the sexual harassment issue is not to be considered,




                                             7
then a reasonable person would agree that the charges [found to be true] in [and] of

themselves do not support the extreme discipline of indefinite suspension (termination).”

       Appellant contends that the examiner exonerated appellee of a charge of sexual

harassment thereby exceeding his jurisdiction.         We disagree.       In his report, the

examiner: (1) acknowledged appellant’s position that “the sexual harassment issue is

not to be considered”; (2) indicated that he would not consider the sexual harassment

issue; and (3) concluded that on their own, the other charges that he found to be true

“do not support the extreme discipline of indefinite suspension (termination).” Although

appellant suggests that the examiner’s decision was based solely on his consideration

of the sexual harassment charge, the foregoing demonstrates that the examiner based

his decision on his finding that “appellee engaged in the conduct set forth in the notice

of disciplinary action as it pertained to violation of rules on visitors and the misuse of his

personal identification ‘swipe’ card.” The examiner found no evidence to support the

charge of other “inappropriate behavior.” The examiner found that the charges did not

support the indefinite suspension and therefore reduced it to a temporary (10-day)

suspension. His report indicates that the sexual harassment issue, if considered as a

charge and found to be true, may have possibly supported the imposition of the more

severe disciplinary action of indefinite suspension.       Accordingly, we conclude that

appellant has not established that the district court erred in ruling that the examiner did

not exceed his jurisdiction in making this decision.

       We reach the same conclusion with regard to appellant’s second allegation (i.e.,

that the examiner ruled that the Department’s security policy should not be strictly

enforced). Nowhere in the report does the examiner suggest that the Department’s



                                              8
security policy should not be strictly enforced. Nor did the examiner seek to impose a

new rule or policy. See City of Pasadena, 292 S.W.3d at 20 (“[T]he Act does not

empower a hearing examiner to make rules.”). The examiner performed his proper fact-

finding function by determining “the truth of the specific charges against the fire fighter.”

TEX. LOC. GOV’T CODE ANN. § 143.053(c), (g) (West 2008). Specifically, the examiner

found the charges involving violations of the visitation rules and security policy to be

true and found the charge involving “inappropriate behavior” not to be true. Thereafter,

the examiner exercised his statutory authority to determine the discipline to be imposed.

See City of Waco v. Kelley, 309 S.W.3d 536, 545 (Tex. 2010) (“When a classified

employee appeals an indefinite suspension and the charges are found to be true, the

Act affords a hearing examiner options as far as the discipline to be imposed.”).

       Appellant contends that by choosing to impose a 10-day temporary suspension

instead of an indefinite suspension, the examiner invaded a policy-setting realm

protected by the non-delegation doctrine; however, the law gives a hearing examiner

the authority to select among “options as far as the discipline to be imposed.” Id.; see

also City of Lancaster v. Clopton, 246 S.W.3d 837, 841 (Tex. App.—Dallas 2008, no

pet.) (“A hearing examiner has the authority and jurisdiction to reduce the length of an

indefinite suspension, even if the charges are found to be true.”). Appellant’s contention

is essentially that the hearing examiner’s decision was “wrong” because more severe

disciplinary action was appropriate. We agree with the district court that this complaint

is not within its jurisdiction. See City of Pasadena, 292 S.W.3d at 21 (“Asserting that a

decision made by the hearing examiner is incorrect is not the same as asserting that the




                                             9
examiner did not have jurisdiction.”); see also TEX. LOC. GOV’T CODE ANN. § 143.057(j).

Accordingly, we overrule appellant’s first issue.

       2. Award Procured by “Unlawful Means”

       In its second issue, appellant contends that the district court has jurisdiction to

determine whether appellee procured the hearing examiner’s award by “unlawful

means.” TEX. LOC. GOV’T CODE ANN. § 143.057(j).

       The decision of a hearing examiner is “final and binding on all parties,” City of

Houston v. Jackson, 192 S.W.3d 764, 768 (Tex. 2006), and “[a]ppeals from an

independent hearing examiner’s decision are severely circumscribed,” City of Houston

v. Clark, 197 S.W.3d 314, 320 (Tex. 2006). The labor code provides that “[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.” Id. “[I]f the examiner’s

decision was procured by fraud, collusion, or other unlawful means, then

[the] . . . proper relief . . . [is] the decision being vacated and a new hearing ordered.”

City of Waco v. Kelley, 309 S.W.3d 536, 540, 552 (Tex. 2010).

       “The standard set forth in section 143.057(j) has been interpreted as an ‘abuse of

authority’ standard.” City of Garland v. Byrd, 97 S.W.3d 601, 607 (Tex. App.—Dallas

2002, pet. denied) (citing Lindsey v. Fireman's & Policeman's Civil Serv. Comm'n of the

City of Houston, 980 S.W.2d 233, 236 (Tex. App.—Houston [14th Dist.] 1998, pet.

denied); Nuchia v. Tippy, 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 error of law.” Id. (citing City of Carrollton Civil Serv.



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Comm'n v. Peters, 843 S.W.2d 186, 188 (Tex. App.—Dallas 1992, writ denied).

“Although the abuse of authority standard may be strict, it is not meaningless.” Id.

        Appellant argues that, in this case, the examiner’s award was procured by “other

unlawful means” because it was based on appellee’s perjured testimony that he did not

engage in any “inappropriate behavior,” as appellant charged in its notice letter. TEX.

LOC. GOV’T CODE ANN. § 143.057(j). Appellant has not cited, nor has this Court located,

any Texas decision holding that “other unlawful means” in section 143.057(j) of the

labor code includes perjured testimony.3

        In the absence of controlling precedent under Texas law, we are guided by

precedent interpreting analogous provisions under federal law. Rule 60(b)(3) of the

Federal Rules of Civil Procedure provides in relevant part as follows:

        On motion and upon such terms as are just, the court may relieve a party
        or his legal representative from a final judgment, order, or proceeding for
        the following reasons: . . . (3) fraud (whether heretofore denominated
        intrinsic or extrinsic), misrepresentation, or other misconduct of an
        adverse party.

FED. R. CIV. P. 60(b)(3).

        “One who asserts that an adverse party has obtained a verdict through fraud,

misrepresentation or other misconduct has the burden of proving the assertion by clear

and convincing evidence.” Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.

1978) (citing Saenz v. Kenedy, 178 F.2d 417, 419 (5th Cir. 1949); Gilmour v. Strescon


        3
          In fact, we have found only two decisions interpreting or applying the statutory language “other
unlawful means.” See TEX. LOC. GOV’T CODE ANN. § 143.057(j). In one decision, the Tyler Court of
Appeals interpreted the phrase to mean that a “hearing examiner is bound by the same precedent and
authority as the Civil Service Commission and the state courts.” Blair v. Razis, 926 S.W.2d 784, 789
(Tex. App.—Tyler 1996, no pet.). In the other decision, the parties agreed 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 [the employee’s] right to due process.” Steubing v. City of
Killeen, 298 S.W.3d 673, 675 (Tex. App.—Austin 2009, pet denied). Neither decision provides much
guidance for resolving appellant’s complaint in this case.

                                                   11
Indus., Inc., 66 F.R.D. 146, 153 (E.D.Pa.1975), aff'd without opinion, 521 F.2d 1398 (3d

Cir. 1975)). “The conduct complained of must be such as prevented the losing party

from fully and fairly presenting his case or defense.” Id. (citing Toledo Scale Co. v.

Computing Scale Co., 261 U.S. 399, 421 (1923); Atchison, Topeka & Santa Fe Ry. Co.

v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957); Rubens v. Ellis, 202 F.2d 415, 417 (5th

Cir. 1953)).

       In this case, appellant argues that the hearing examiner did not believe the

testimony of its eyewitness regarding appellee’s “inappropriate behavior” because

appellee gave perjured testimony denying that he engaged in the conduct at issue. Yet,

the hearing examiner’s performance of this fact-finding function—choosing to reject the

testimony of one witness while accepting that of another—is not “unlawful.” See City of

Athens, 353 S.W.3d at 911; Xtria L.L.C. v. Int’l Ins. Alliance, 286 S.W.3d 583, 597 (Tex.

App.—Texarkana 2009, pet. denied) (“In his authority as a fact-finder, [arbitrator] had

the capability to judge the credibility of the witnesses before him and could choose to

believe the testimony of International's witnesses.”).

       Moreover, the hearing examiner’s report, which was attached to appellant’s live

petition and incorporated therein by reference, indicates that appellee’s allegedly

perjured testimony was not the reason the examiner chose to reject the testimony of

appellant’s eyewitness:

       I have concluded that [appellant’s eyewitness] lacks credibility in her
       version of events because I cannot accept that someone that was
       supposedly so “humiliated and embarrassed” did not immediately report
       the events to management.       Nor can I accept that despite her
       embarrassment, she remained in the room for open conversation with
       [appellee]. A reasonable person would have upon seeing something as
       she described immediately left the room and reported the incident to



                                            12
       management. This did not occur nor did she inform management for
       nearly a month or more later.

       Based on the foregoing, it is clear that the hearing examiner found the witness to

lack credibility based on her own testimony, not based on appellee’s testimony. There

is nothing “unlawful” about the hearing examiner’s exercise of his fact-finding function in

this regard. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (“[The fact-

finder is] the sole judge[] of the credibility of the witnesses and the weight to be given

their testimony.   [It] may choose to believe one witness and disbelieve another.

Reviewing courts cannot impose their own opinions to the contrary.”). In sum, appellant

failed to allege that the hearing examiner’s award was procured by “unlawful means”

because appellant’s allegations affirmatively establish that it was not unlawfully deprived

of a full and fair opportunity to litigate appellee’s claim that he did not engage in the

“inappropriate behavior” charged in appellant’s notice letter. See Karaha Bodas Co.,

L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 307

(5th Cir. 2004) (“Courts, however, have held that an arbitration award is not fraudulently

obtained when the protesting party had an opportunity to rebut his opponent’s claims at

the hearing.”); cf. Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 132 (Tex. App.—

Waco 2005, pet. denied) (newly discovered evidence alleging that a witness committed

perjury was cumulative, impeaching, and not grounds for a new trial).

       Appellant’s second issue is overruled.

       3. Protective Order

       In its third issue, appellant contends that the district court erred in granting

appellee’s motion for protective order prohibiting the deposition of appellee’s female

visitor, Jessica Martinez.   The deposition was part of appellant’s effort to conduct

                                            13
discovery on its claim that appellee procured the hearing examiner’s award through

perjured testimony. In a single order, the district court granted appellee’s plea to the

jurisdiction and then found, based on that ruling, “the deposition of the witness is moot.”

       In addressing appellant’s first and second issues, we have held that the district

court did not err in concluding that it lacked jurisdiction over appellant’s claims.

Accordingly, we conclude that this issue is moot.

       Appellant’s third issue is overruled.

                                     III. CONCLUSION

       The order of the trial court is affirmed.

                                                        ____________________
                                                        ROGELIO VALDEZ
                                                        Chief Justice


Delivered and filed the
30th day of August, 2012.




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