      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-14-00231-CV



                               Stephanie Hoskins Brown, Appellant

                                                   v.

                 Chief Wayne Nero, Paul E. Brandenburg, Elizabeth Jones and
                             The City of Georgetown, Appellees


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
        NO. 13-1178-C277, HONORABLE RICK MORRIS, JUDGE PRESIDING



                                            OPINION


                 In five issues, Stephanie Hoskins Brown appeals from the trial court’s order granting

appellees’ plea to the jurisdiction in a case arising under the Fire Fighters’ and Police Officers’ Civil

Service Act. See generally Tex. Loc. Gov’t Code §§ 143.001–.403 (Civil Service Act). We will

affirm in part and reverse and remand in part.


                                          BACKGROUND

                 Before the events giving rise to this appeal, Brown was an officer with the

Georgetown Police Department. In January 2013, Brown was investigated by the Department

because Eric Poteet, with whom Brown had formerly been in a relationship, alleged that Brown had

been taking his prescription medication and had ingested mescaline, a controlled substance.1 As


        1
            Poteet admitted that “vengeance” motivated him to report Brown’s alleged misconduct.
a result of this investigation, Wayne Nero, the Georgetown chief of police, concluded that Brown

had used Poteet’s prescription drugs, ingested mescaline, and been untruthful when questioned

about using drugs. Chief Nero indefinitely suspended Brown on June 11, 2013.2

                  Pursuant to the Civil Service Act, Brown appealed this indefinite suspension to an

independent third-party hearing examiner. See id. § 143.057(a) (providing that officer may appeal

disciplinary action to hearing examiner). The hearing before this examiner was held on August 26–27,

2013. On August 30, before the hearing examiner announced his decision, Chief Nero met with the

Williamson County Attorney and the Williamson County District Attorney and told them about

Brown’s alleged misconduct. In response, the prosecutors issued a joint letter to Chief Nero on

October 31 informing him that their offices would no longer “accept cases in which [Brown] has

played a role.”

                  On November 1, the hearing examiner issued his decision. He concluded that the

City had met its burden of proof with respect to the charge that Brown had used prescription drugs

belonging to Poteet. However, he also determined that Brown had her own prescription for the

drugs and did not use them for recreational purposes. The hearing examiner further concluded that

the City had not met its burden of proof with respect to the charge that Brown had ingested

mescaline or been untruthful during the investigation. Accordingly, the hearing examiner reduced

Brown’s suspension to fifteen days and ordered her reinstated with back pay and benefits.




       2
         An indefinite suspension is equivalent to termination. See Tex. Loc. Gov’t Code
§ 143.052(b); Miller v. City of Houston, 309 S.W.3d 681, 684 (Tex. App.—Houston [14th Dist.]
2010, no pet.).

                                                  2
                On November 7, the City reinstated Brown and awarded her back pay. However, on

November 8, the City once again terminated Brown. In a letter to Brown, Chief Nero explained that

because the county attorney and district attorney had decided “to no longer sponsor [Brown] as a

witness” and had communicated “their refusal to accept [Brown’s] cases,” Brown could “no longer

fulfill one of the essential job functions” for her position, “which is testifying in court proceedings.”

Chief Nero also stated that because “this is a non-disciplinary termination,” Brown did not “have

appeal rights under [the Civil Service Act].”

                Brown filed an appeal with the Georgetown Civil Service Commission on

November 15. See id. § 143.053(b) (providing that officer may appeal disciplinary suspension to

commission); id. § 143.010(a) (requiring officer to file appeal with commission within ten days after

action occurred). On November 21, appellee Elizabeth Jones, the interim civil service director,

informed Brown that the Commission was denying her request for appeal because her termination

“was not disciplinary in nature, but was based on [her] inability to meet the requirements of the

position of Police Officer.” According to Jones, “[b]ecause this termination was not based on

disciplinary action, a hearing under the civil service statute is not available to [Brown].”

                Brown then filed this lawsuit against the City of Georgetown, Chief Nero in his

official capacity, Jones in her official capacity, and Paul Brandenburg in his official capacity as

city manager. She sought relief under the Uniform Declaratory Judgments Act, see generally Tex.

Civ. Prac. & Rem. Code §§ 37.001–.011, asking the court to declare, among other things, that her

termination was a disciplinary action triggering appeal rights under the Civil Service Act and that

the defendants violated the Act when they terminated Brown based on the same alleged conduct



                                                   3
already ruled on by the hearing examiner. Brown also sought a writ of mandamus ordering Nero

and Brandenburg to reinstate her and to give her back pay and benefits. In the alternative, Brown

asked the court to order the defendants to allow her to appeal her termination to the Commission.

               The defendants filed a plea to the jurisdiction, arguing that Brown had failed to

establish a justiciable claim and had not invoked the district court’s jurisdiction under the Civil

Service Act because the Act grants officers no right to appeal a non-disciplinary termination. The

trial court granted the defendants’ plea, and this appeal followed.


                                          DISCUSSION

               The threshold question in this case is whether Brown’s termination was a disciplinary

suspension that she was entitled to appeal under the Civil Service Act. The trial court decided this

question in the negative when it granted the defendants’ plea to the jurisdiction. The only ground

advanced in the plea was that the Act did not give the Commission jurisdiction over Brown’s appeal

of a non-disciplinary suspension and, therefore, the trial court did not have jurisdiction to consider

her claims. Because the relevant underlying facts are undisputed, we will review de novo the question

of whether the Civil Service Act entitled Brown to appeal her suspension to the Commission.

See First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008) (“The construction of a

statute is a question of law we review de novo.”); Texas Comm’n on Envtl. Quality v. Bonser-Lain,

438 S.W.3d 887, 893 (Tex. App.—Austin 2014, no pet.) (court of appeals reviews trial court’s ruling

on plea to the jurisdiction de novo).

               The Civil Service Act “does not provide for administrative appeal of every possible

disciplinary action taken by the Chief [of Police], only those that are specifically enumerated.

                                                  4
Under the [Act], the Commission only has jurisdiction to hear appeals from promotional passovers,

disciplinary suspensions, and demotions.” Corbitt v. City of Temple, 941 S.W.2d 354, 355 (Tex.

App.—Austin 1997, writ denied) (footnote omitted). If Brown’s termination was a disciplinary

suspension, then the Commission had jurisdiction over her appeal and was required to hear and

decide it. See Tex. Loc. Gov’t Code § 143.053(b) (“If a suspended fire fighter or police officer

appeals the suspension to the commission, the commission shall hold a hearing and render a decision

in writing within 30 days after the date it receives notice of appeal.”) (emphasis added); see also

Tex. Gov’t Code § 311.016(2) (“‘Shall’ imposes a duty.”); Southwestern Bell Tel., L.P. v. Emmett,

459 S.W.3d 578, 588 (Tex. 2015) (noting that “[t]he use of the word ‘shall’ evidences the mandatory

nature of the duty imposed”). We conclude that Brown’s termination was a disciplinary suspension.

               There is no dispute that Brown’s first termination was a disciplinary suspension and

was based on allegations that Brown used drugs and was untruthful during the Department’s

investigation. It is also undisputed that Chief Nero communicated these same allegations and his

own conclusions to the district and county attorneys and that these allegations were the basis of the

prosecutors’ decision to no longer accept cases in which Brown played a role. Therefore, Brown’s

second termination, which occurred just a day after she was reinstated as ordered by the hearing

examiner, was ultimately based on the same allegations as her first termination—allegations that

she had committed acts meriting a disciplinary suspension.

               The defendants now assert that they are not responsible for the prosecutors’ decision

and that it is beyond their control. According to the defendants, because the prosecutors will not

sponsor Brown as a witness, Brown is no longer qualified to serve as a Georgetown police officer

and her termination was therefore not based on disciplinary grounds.

                                                 5
               Based on the record before us, it does not appear that Brown’s termination related to

her qualifications. The defendants presented no evidence that she was incapable of testifying or of

performing any other required function. Brown was not fired because she failed to maintain a

license, pass an exam, or perform satisfactorily in the field. Rather, the evidence showed that the

prosecutors’ decision not to accept Brown’s cases was based on Chief Nero’s accusations of

untruthfulness, which the hearing examiner found to be groundless. And instead of abiding by the

hearing examiner’s award, which was “final and binding on all parties,” see Tex. Loc. Gov’t Code

§ 143.057(c), Chief Nero allowed the unilateral decision of elected officials to circumvent the

protections of the Civil Service Act.

               The Civil Service Act was intended to prevent the sort of factual scenario we have

before us. See id. § 143.001(a) (“The purpose of this chapter is to secure efficient fire and police

departments composed of capable personnel who are free from political influence and who have

permanent employment tenure as public servants.”) (emphasis added). According to the defendants’

theory, prosecutors have unbridled discretion to declare that they will not accept cases from an

officer, and the police chief may—and, in fact, has a duty to—terminate that officer. Furthermore,

according to the defendants, this termination is completely insulated from review by anyone—the

Commission, a hearing examiner, or the courts. This cannot be how the Civil Service Act works,

as this interpretation would allow the defendants to nullify Brown’s statutory right to appeal merely

by relabeling her termination as “non-disciplinary.”

               Because we conclude that Brown’s termination was a disciplinary suspension and

that the Commission is required by statute to hear her appeal, we sustain her issues to the extent they



                                                  6
ask us to reverse the trial court’s order in part and remand to the trial court for further proceedings.

See Hamilton v. Washington, No. 03-11-00594-CV, 2014 WL 7458988, at *10 (Tex. App.—Austin

Dec. 23, 2014, no pet.) (mem. op.) (holding that district court had jurisdiction to consider plaintiff’s

claims “for declaratory and mandamus relief concerning the interpretation of the Civil Service Act,

[plaintiff’s] compliance with it, and the officials’ failure to perform ministerial duties under the

act”). However, because Brown has not exhausted all of her administrative remedies, neither we

nor the trial court have jurisdiction to order that she be reinstated with back pay and benefits. See id.

at *6 (holding that trial court did not err in granting city’s plea to the jurisdiction as to plaintiff’s

request for reinstatement because “there [had] been no initial determination in this dispute at the

Commission level”). At this time, “the sole authority to make the initial decision to uphold the

suspension or reverse it and grant reinstatement is afforded the official making the decision at the

Commission level.” Id. Accordingly, we overrule Brown’s issues to the extent they ask us to order

her reinstatement.3


        3
           The defendants also contend that Brown failed to join a necessary party—the
Commission—and that her suit should therefore be dismissed as a matter of law. However, the
defendants did not raise this issue in the plea to the jurisdiction we are now reviewing. Instead, they
raised it in their special exceptions, and there is nothing in the record to suggest that the trial court
ever ruled on these special exceptions. See In re Estate of Tyner, 292 S.W.3d 179, 185 (Tex.
App.—Tyler 2009, no pet.) (“Special exceptions that are not called to the trial court’s attention and
on which the record does not show that the trial court acted are waived.”); Gallien v. Washington
Mut. Home Loans, Inc., 209 S.W.3d 856, 862 (Tex. App.—Texarkana 2006, no pet.) (“Without a
written order on the special exceptions, MSV waived its special exceptions.”); see also McCarthy
v. George, 618 S.W.2d 762, 763 (Tex. 1981) (per curiam) (“One of the aims of the revised [Rule 39]
was to avoid questions of jurisdiction. What is involved, under Rule 39, is a question of whether
the court ought to proceed with those who are present.”); Cooper v. Texas Gulf Indus., Inc.,
513 S.W.2d 200, 204 (Tex. 1974) (“Contrary to our emphasis under Rule 39 before it was amended,
today’s concern is less that of the jurisdiction of a court to proceed and is more a question of whether
the court ought to proceed with those who are present.”); id. (“Under the provisions of our present

                                                   7
                                         CONCLUSION

               We affirm the trial court’s order to the extent that it granted the defendants’ plea to

the jurisdiction on Brown’s request for reinstatement with back pay and benefits. We reverse the

trial court’s order in all other respects, and we remand the cause to the trial court for further

proceedings consistent with this opinion.



                                              __________________________________________

                                              Scott K. Field, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed in Part; Reversed and Remanded in Part

Filed: September 22, 2015




Rule 39 it would be rare indeed if there were a person whose presence was so indispensable in the
sense that his absence deprives the court of jurisdiction to adjudicate between the parties already
joined.”). To the extent the defendants have not waived their special exceptions, they may be
considered on remand.

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