      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-16-00148-CV



                                 Jermaine A. Hopkins, Appellant

                                                  v.

The City of Austin, The City of Austin Firefighters’ Civil Service Commission, The City of
  Austin Police Officers’ Civil Service Commission, and The City of Austin Emergency
                Medical Personnel’s Civil Service Commission, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
       NO. D-1-GN-15-004035, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Jermaine A. Hopkins appeals from the district court’s order granting appellees’ plea

to the jurisdiction and dismissing Hopkins’s suit for judicial review of his indefinite suspension from

the Austin Police Department. (APD). We will affirm.


                                            Background

                In October 2014, the APD indefinitely suspended Hopkins from his duties as a police

officer for violations of the City of Austin’s civil-service rules.1 Hopkins appealed his suspension

to an independent third-party hearing examiner, who ultimately denied Hopkins’s appeal.2 Hopkins



       1
          See Tex. Loc. Gov’t Code § 143.052(b) (authorizing suspension for violation of civil-
service rule); see generally id. §§ 143.001–.403 (Civil Service Act).
       2
           See Tex. Loc. Gov’t Code § 143.057(a) (authorizing appeal to hearing examiner).
then filed the underlying suit for judicial review, alleging that the hearing examiner had exceeded

his jurisdiction and that the hearing examiner’s order was procured by fraud, collusion, and other

unlawful means.3 Hopkins asked the district court to, among other relief, vacate the hearing

examiner’s decision, reverse Hopkins’s suspension, and award back pay and benefits lost. In

response, appellees filed a plea to the jurisdiction, with evidence attached, asserting that the district

court lacked jurisdiction over Hopkins’s suit because Hopkins failed to plead any facts showing that

the hearing examiner had acted outside his authority or that the hearing examiner’s order was

procured by fraud, collusion, or unlawful means. The district court issued an order granting the plea

and dismissing Hopkins’s suit. It is from this order that Hopkins appeals.


                                         Standard of Review

                  A plea to the jurisdiction challenges a trial court’s authority to decide a case.4

Analysis of whether this authority exists begins with the plaintiff’s live pleadings.5 The plaintiff has

the initial burden of alleging facts that affirmatively demonstrate the trial court’s jurisdiction to hear

the cause.6 Whether the plaintiff met this burden is a question of law that we review de novo.7 We




        3
         See id. § 143.057(j) (authorizing judicial review of hearing examiner’s order “only on the
grounds that the [hearing examiner] was without jurisdiction or exceeded its jurisdiction or that the
order was procured by fraud, collusion, or other unlawful means”).
        4
            See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004).
        5
            Id. at 226.
        6
            Id. (citing Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)).
        7
            Id.

                                                    2
construe the pleadings liberally, taking them as true, and look to the pleader’s intent.8 If the

pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but

do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading

sufficiency, and the plaintiffs should be afforded the opportunity to amend.9 If the pleadings

affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted

without allowing the plaintiffs an opportunity to amend.10

                   When resolving issues presented by the plea to the jurisdiction, we may consider

evidence that the parties have submitted and must do so when necessary to resolve the jurisdictional

issues.11 In fact, in a plea to the jurisdiction, a party may present evidence to negate the existence

of a jurisdictional fact alleged in the pleadings, which we would otherwise presume to be true.12 To

the extent the challenge implicates the merits of the plaintiff's cause of action, the party asserting the

plea has the burden of negating a genuine issue of material fact as to the jurisdictional fact’s

existence, in a manner similar to a traditional summary-judgment motion.13 Whether the party meets

this burden is a question of law that we review de novo.14 If the pleading requirement has been met



        8
             Id.
        9
             Id. at 226–27.
        10
             Id. at 227.
        11
             Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
        12
             See Miranda, 133 S.W.3d at 227.
        13
             See id. at 227–28.
        14
             Id. at 228.

                                                    3
and the party challenging jurisdiction submits evidence that implicates the merits of the pleader’s

cause of action, we take as true all evidence favorable to the pleader and indulge every reasonable

inference and resolve any doubts in the pleader’s favor.15


                                                Discussion

                   Hopkins’s principal issue on appeal is that the court erred in granting appellees’ plea

to the jurisdiction because his pleadings assert sufficient facts to establish jurisdiction under section

143.057(j) of the Civil Service Act. Specifically, Hopkins argues that the hearing examiner

exceeded his jurisdiction by (1) affirming the APD’s suspension for insubordination because

Hopkins’s acts were in compliance with his rights under the Texas Public Information Act and the

Civil Rights Act and (2) considering evidence outside the Civil Service Act’s 180-day deadline. We

disagree that Hopkins has alleged sufficient facts to establish the district court’s jurisdiction over his

appeal from the hearing examiner’s decision.

                   Appeals from a hearing examiner’s decision “are severely circumscribed.”16 “A

district court may hear an appeal of a hearing examiner’s award only on the grounds that the [hearing

examiner17 ] was without jurisdiction or exceeded its jurisdiction or that the order was procured by




        15
             Id.
        16
             City of Houston v. Clark, 197 S.W.3d 314, 320 (Tex. 2006)
        17
          Although this provision actually refers to an “arbitration panel” exceeding its jurisdiction,
the term is synonymous with “hearing examiner.” See City of Pasadena v. Smith, 292 S.W.3d 14,
19 (Tex. 2009) (citing Clark, 197 S.W.3d at 319 n. 5 (presuming that “reference to ‘arbitration panel’
includes an independent hearing examiner”)).

                                                     4
fraud, collusion, or other unlawful means.”18 According to the Texas Supreme Court, “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.”19

                  Regarding his claims that the hearing examiner’s order was procured by fraud,

collusion, or other unlawful means, Hopkins’s petition merely alleged, without further elaboration

or support of any kind, that the hearing examiner’s “ruling was secured via fraud, collusion, or some

other unlawful means.” But simply parroting the statutory grounds for jurisdiction is not sufficient

to establish jurisdiction—a party must allege facts that affirmatively demonstrate the trial court’s

jurisdiction.20

                  As for his claim that the hearing examiner exceeded his jurisdiction, Hopkins’s

petition alleged that the hearing examiner exceeded his authority under the Civil Service Act by

issuing a decision that was unconstitutional because it affirmed the City’s authority to prohibit

Hopkins from engaging in various protected activity, including certain constitutional rights and his

right to seek public information under the Texas Public Information Act. The allegations that

Hopkins makes in his petition (and in his brief to this Court) are, however, simply complaints about

the correctness of the hearing examiner’s decision—i.e., Hopkins claims that the hearing examiner

reached the wrong decision regarding his suspension. But to establish jurisdiction over an appeal

from a hearing examiner’s decision, Hopkins had to allege facts indicating that the hearing



        18
             Tex. Loc. Gov’t Code § 143.057(j).
        19
             City of Pasadena, 292 S.W.3d at 21.
        20
             See, e.g., Miranda, 133 S.W.3d at 226.

                                                   5
examiner’s acts were “not authorized by the Act or are contrary to it” or “invade the policy-setting

realm protected by the nondelegation doctrine.”21

                In support of their plea to the jurisdiction, appellees submitted evidence, which the

district court considered in deciding the plea, demonstrating that Hopkins’s suit was merely an

attempt to relitigate issues already decided by the hearing examiner—i.e., complaints regarding the

correctness of the hearing examiner’s decision. Appellees’ evidence further establishes that, in

connection with Hopkins’s appeal, the hearing examiner’s actions were authorized by and in

conformance with the Civil Service Act.

                Hopkins maintains on appeal that his petition’s reference to the hearing examiner’s

order is a factual allegation regarding jurisdiction because it shows that the hearing examiner

considered acts of Hopkins that took place outside the Civil Service Act’s 180-day limitation.22 But

even assuming Hopkins’s characterization of the hearing examiner’s decision is correct, the deadline

he references places a limitation on the department head regarding complained-of acts, it does not

limit the scope of the evidence presented to a hearing examiner.23 In fact, two of our sister courts

have held that there is nothing in the Act that precludes consideration of acts outside this time frame




       21
            City of Pasadena, 292 S.W.3d at 21.
       22
            See Tex. Loc. Gov’t Code § 143.052(h) (“In the original written statement and charges and
in any hearing conducted under this chapter, the department head may not complain of any act that
occurred earlier than the 180th day preceding the date the department head suspends the . . . police
officer.”).
       23
            See id.

                                                  6
“to explain or evaluate ‘the propriety and gravity’ of the acts within the six-month period.”24 A

hearing examiner is authorized under the Act to, among other things, consider the evidence

submitted at a hearing and render a just and fair decision on the suspension based on that evidence.25

                 We conclude that Hopkins has failed to affirmatively allege facts that invoke the

district court’s jurisdiction. Moreover, as noted, Hopkins’s pleadings and the jurisdictional evidence

affirmatively negate the facts he would be required to plead in support of his claims.26 Accordingly,

we hold that the district court did not err in granting appellees’ plea to the jurisdiction, and overrule

Hopkins’s first issue.

                 In a second issue, Hopkins argues that the district court erred in dismissing his request

for declaratory relief because appellees had not sought such relief in its plea to the jurisdiction. A

cursory review of appellees’ plea to the jurisdiction establishes that this argument is without merit.

Appellees’ plea to the jurisdiction plainly seeks dismissal, on jurisdictional grounds, of all Hopkins’

claims. Accordingly, we overrule Hopkins’s second issue.




        24
           City of San Antonio v. Longoria, No. 04-04-00063-CV, 2004 WL 2098074, *3 (Tex.
App.—San Antonio Sept. 24, 2004, no pet.) (mem.op) (citing Plaster v. City of Houston, 721 S.W.2d
421, 423 (Tex. App.—Houston [1st Dist.] 1986, no writ.) (concluding that predecessor to section
142.052(h) “does not preclude the Chief of commission from considering acts outside the six month
period to explain the acts ‘complained of’”)).
        25
             See Tex. Loc. Gov’t Code §§ 143.010(g), .057(f).
        26
            See Miranda, 133 S.W.3d at 227 (if pleadings affirmatively negate existence of
jurisdiction, then plea to the jurisdiction may be granted without allowing opportunity to amend).

                                                    7
                                           Conclusion

               Having overruled Hopkins’s issues, we affirm the district court’s order granting

appellees’ plea to the jurisdiction and dismissing Hopkins’s claims.



                                             __________________________________________
                                             Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Pemberton and Bourland

Affirmed

Filed: July 13, 2017




                                                8
