                                                                                     ACCEPTED
                                                                                 03-15-00591-CV
                                                                                         8250865
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                           12/15/2015 4:15:42 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                          No. 03-15-00591-CV

                                                               FILED IN
                                                        3rd COURT OF APPEALS
                     IN THE COURT OF APPEALS                 AUSTIN, TEXAS
                  FOR THE THIRD JUDICIAL DISTRICT       12/15/2015 4:15:42 PM
                         AT AUSTIN, TEXAS                   JEFFREY D. KYLE
                                                                 Clerk


        THE CITY OF AUSTIN FIREFIGHTERS AND POLICE OFFICERS’
    CIVIL SERVICE COMMISSION, DIRECTOR MARK WASHINGTON, CHIEF
           ARTURO ACEVEDO, AND THE CITY OF AUSTIN, TEXAS,
                        Defendants/Appellants,

                                  v.

                      WILLIAM M. STEWART,
                        Plaintiff/Appellee.


                           APPELLEE’S BRIEF



                                       DEATS, DURST & OWEN, P.L.L.C.
                                       1204 San Antonio Street, Suite 203
                                       Austin, Texas 78701
                                       (512) 474-6200
                                       (512) 474-7896 (FAX)
                                       B. Craig Deats
                                       State Bar No. 05703700
                                       cdeats@ddollaw.com
                                       Matt Bachop
                                       State Bar No. 24055127
                                       mbachop@ddollaw.com

                                       COUNSEL FOR APPELLEE



ORAL ARGUMENT REQUESTED
                                         TABLE OF CONTENTS

Table of Contents ....................................................................................................... i
Index of Authorities .................................................................................................. ii
Statement Regarding Oral Argument ...................................................................... iv
Issues Presented ....................................................................................................... iv
Summary of Argument ..............................................................................................1
Argument & Authorities ............................................................................................3
I.    The trial court correctly retained jurisdiction over the primary claim in the
      case: Stewart’s ultra vires claim. ........................................................................3
II. Some issues in the case can be narrowed based on
    the City’s secondary issues. ................................................................................6
     A.      Stewart’s claim for reinstatement and back pay and benefits. ....................6
     B.      Stewart’s claims related to the validity of the Last Chance Agreement. ....6
     C.      Stewart’s claims against the Police Chief....................................................8
Conclusion & Prayer ..................................................................................................9
Certificate of Compliance ........................................................................................11
Certificate of service ................................................................................................11




                                                             i
                                   INDEX OF AUTHORITIES


Cases

American Petrofina, Inc. v. Allen,
 887 S.W.2d 829 (Tex. 1994) ..................................................................................8

City of Houston v. Clark,
  197 S.W.3d 314 (Tex. 2006) ................................................................................10

City of Houston v. Tones,
  299 S.W.3d 235 (Tex. App.—Houston [14th Dist.] 2009, no pet.) .....................10

City of Lancaster v. Clopton,
  246 S.W.3d 837 (Tex. App.—Dallas 2008, no pet.) ............................................10

City of Laredo v. Leal,
  161 S.W.3d 558 (Tex. App.—San Antonio 2004, pet. denied) ...........................10

City of Mission v. Gonzalez, No. 13–10–00688–CV,
  2012 WL 3762040 (Tex. App.—Corpus Christi Aug. 30, 2012, pet. denied) .....10

City of Waco v. Kelley,
  309 S.W.3d 536 (Tex. 2010) ................................................................................10

Hamilton v. Washington, No. 03-11-00594-CV,
 2014 WL 7458988 (Tex. App.—Austin Dec. 23, 2014, no pet.) .......................6, 7

Mata v. City of San Antonio, No. 04-11-00311-CV,
 2012 WL 1364594 (Tex. App.—San Antonio Apr. 18, 2012, pet denied) ........7, 8

Stubbs v. City of Weslaco, No. 13-14-00054-CV,
  2015 WL 124310 (Tex. App.—Corpus Christi Jan. 8, 2015, no pet.) ...................4

Webb v. Jorns,
 488 S.W.2d 407 (Tex. 1972) ..................................................................................9

Zambrana v. City of Amarillo, No. 07-13-00058-CV,
  2014 WL 5037808 (Tex. App.—Amarillo Oct. 8, 2014, no pet.)..........................4



                                                      ii
Statutes

TEX. CIV. PRAC. & REM. CODE § 37.004....................................................................5

TEX. CIV. PRAC. & REM. CODE § 37.011....................................................................5

TEX. LOC. GOV’T CODE § 143.053 .........................................................................3, 5

TEX. LOC. GOV’T CODE § 143.057 .........................................................................3, 5




                                                    iii
              STATEMENT REGARDING ORAL ARGUMENT

      Appellee William Stewart respectfully requests that the Court grant oral

argument in this case.    This case presents an important issue concerning the

jurisdiction of a district court to enforce the requirements of the Fire and Police

Civil Service Act, which governs many terms and conditions of employment for

many of Texas’s police officers and fire fighters.


                              ISSUES PRESENTED

      Appellee urges that the issues presented by the City’s appeal are better stated

as follows:

1.    Addressing the City’s primary appellate issue: Did the trial court correctly
      conclude that it has jurisdiction over Stewart’s ultra vires claim seeking
      declaratory and injunctive relief requiring City officials to process Stewart’s
      Civil Service appeal?

2.    Can some of the issues in the case be narrowed on the basis of the City’s
      secondary appellate issues?




                                         iv
                         SUMMARY OF ARGUMENT

      The Civil Service Act, which governs discipline in the Austin Police

Department, provides an absolute right for officers to appeal all involuntary

suspensions, including indefinite suspensions (the Civil Service Act term for

discharge). The Act also allows an officer to agree with the police chief on a

voluntary temporary suspension without any ability to appeal.

      After being accused of misconduct in 2012 and threatened with an indefinite

suspension, Stewart agreed to a temporary suspension, with an additional condition

(the “Last Chance Agreement”) providing that Stewart would waive his statutory

right to appeal an indefinite suspension during the following year if “he commits

the same or a similar act of misconduct for which he is being suspended.”

      The Police Chief terminated Stewart during that period based on an

allegation that Stewart committed a similar act of misconduct, and the City denied

Stewart his statutory appeal rights based on the language quoted above. Stewart

denied that he committed a similar act of misconduct, and filed this suit to enforce

his right under the Civil Service Act to appeal his indefinite suspension to an

independent hearing examiner.

      The City’s appeal attempts to convince the Court to rewrite the language of

the Last Chance Agreement, such that Stewart forfeits his statutory appeal rights

any time the Police Chief accuses Stewart of committing misconduct that the


                                         1
Police Chief labels as “the same or similar,” with any such accusation being

completely unreviewable by a hearing examiner or by the courts. Of course, the

parties could have entered into a contract like that, but they did not; instead, they

agreed that Stewart would only waive his right to appeal if he actually committed

an act of misconduct similar to the conduct leading to his agreed suspension in

2012.

        The trial court correctly relied on the plain language of the Agreement in

rejecting the City’s position, and deciding that the district court had jurisdiction

over Stewart’s claim that he is legally entitled to a Civil Service appeal because the

waiver of appellate rights in the Last Chance Agreement was not triggered.

        The City’s appellate position is that the trial court erred by asserting

jurisdiction over the case, because it is so clear that the Police Chief’s accusations

are unreviewable that the trial court did not even have jurisdiction to consider the

merits of Stewart’s ultra vires claim, which seeks to enforce Texas law and require

the City to participate in Stewart’s Civil Service appeal.

        The City’s argument has no basis in the actual language of the Last Chance

Agreement and should be rejected.




                                          2
                       ARGUMENT & AUTHORITIES

I.    The trial court correctly retained jurisdiction over the primary claim in
      the case: Stewart’s ultra vires claim.

      In its main issue (contained in section C.2 of the Appellants’ Brief), the City

argues that the trial court lacked jurisdiction over Stewart’s ultra vires claim,

which seeks prospective declaratory, injunctive, and mandamus relief enforcing

Stewart’s right under the Civil Service Act to appeal his termination to a third-

party hearing examiner. The City makes four main arguments in this regard, each

of which lack merit.

      First, the City urges that there is no provision in the Meet and Confer

Agreement (“M&C Agreement”) between the Austin Police Association (“APA”)

and the City that allows the submission of a “non-appealable indefinite

suspension” to arbitration.    (Appellants’ Brief at 19, 22.)       Of course, this

argument—that the discharge cannot be appealed because it is non-appealable—

simply begs the primary merits question in the case. In addition, the argument fails

to confront the substance of the ultra vires claim: Stewart’s claim does not seek

arbitration under the M&C Agreement; rather, he seeks an appeal under the Civil

Service Act, arguing that the Last Chance Agreement’s narrow waiver of his right

to such an appeal does not apply to his termination. See TEX. LOC. GOV’T CODE

§§ 143.053, 143.057.



                                         3
          This kind of claim seeking prospective relief ordering a Civil Service appeal

is a typical ultra vires claim over which the district court has jurisdiction. In a

similar case, the Corpus Christi Court of Appeals ruled that a trial court had

jurisdiction over a discharged fire fighter’s claims “for a declaratory judgment,

injunctive relief, and writ of mandamus to require [the civil service director] to

process [the plaintiff]’s appeal as required by the civil service act,” in the face of

the city’s argument that the termination was non-appealable. Stubbs v. City of

Weslaco, No. 13-14-00054-CV, 2015 WL 124310, at *5 (Tex. App.—Corpus

Christi Jan. 8, 2015, no pet.); see also Zambrana v. City of Amarillo, No. 07-13-

00058-CV, 2014 WL 5037808 (Tex. App.—Amarillo Oct. 8, 2014, no pet.) (ruling

that the trial court had jurisdiction over a terminated fire fighter’s claim that he was

entitled to a Civil Service appeal, where the city argued that the fire fighter had

waived his appellate rights in a contract).

          Second, the City argues that Stewart’s waiver of his right to appeal the

temporary suspension that accompanied the Last Chance Agreement somehow

forecloses Stewart’s right to appeal his indefinite suspension. (Appellants’ Brief at

20–21.) This argument has no logical force, and the City does not attempt to flesh

it out.

          Third, the City argues that a third-party hearing examiner has no statutory

or contractual authority to determine whether Stewart’s termination triggered the


                                              4
narrow waiver of Civil Service appeal rights contained in the Last Chance

Agreement.       (Appellants’ Brief at 20–21.)      This argument misses the mark,

because a hearing examiner has statutory authority to review the termination itself,

unless the waiver was triggered. TEX. LOC. GOV’T CODE §§ 143.053, 143.057.

The district court has jurisdiction to determine whether Stewart’s statutory right to

appeal his termination to a hearing examiner survives the alleged application of the

waiver in the Last Chance Agreement. As explained above, this is a typical ultra

vires claim. It falls squarely within the court’s authority to issue “a declaration of

rights, status, or other legal relations” and “determine[] any question of

construction” under “a statute” and a “contract,” and to issue injunctive and/or

mandamus relief based on the declaratory judgment. TEX. CIV. PRAC. & REM.

CODE §§ 37.004(a), 37.011.

         Fourth, the City contends that the district court lacks jurisdiction because no

statute or contract authorizes “appeal of ‘Last Chance Agreements.’” (Appellants’

Brief at 21.)      Again, this is a straw-man argument, because Stewart is not

attempting to appeal his Last Chance Agreement; rather, he is attempting to appeal

his termination under TEX. LOC. GOV’T CODE §§ 143.053, 143.057, and asking the

court to declare that the Last Chance Agreement does not prevent him from doing

so. As Stewart has shown above, the district court has jurisdiction over this kind of

claim.


                                            5
         For these reasons, the Court should reject the City’s primary issue urging

that the district court erred by retaining jurisdiction over Stewart’s ultra vires

claim.

II.      Some issues in the case can be narrowed based on the City’s secondary
         issues.

         Although the trial court correctly decided that it has jurisdiction over the

ultra vires claim, and thus the case must be remanded for trial, the issues for the

trial court to consider on remand can be narrowed based on some of the arguments

raised in the City’s secondary issues.

         A.    Stewart’s claim for reinstatement and back pay and benefits.

         In the first such issue (in section B.1 of Appellants’ Brief), the City correctly

points out that under this Court’s decision in Hamilton v. Washington, No. 03-11-

00594-CV, 2014 WL 7458988 (Tex. App.—Austin Dec. 23, 2014, no pet.), the

trial court lacks jurisdiction over Stewart’s claim for reinstatement and back pay

and benefits, because the local civil service commission (or an independent hearing

examiner) has exclusive jurisdiction over such claims. (Appellants’ Brief at 11–

13.)

         B.    Stewart’s claims related to the validity of the Last Chance
               Agreement.

         In section B.2 of the City’s Brief (Appellants’ Brief at 13–17), the City notes

that Stewart did not exhaust the grievance procedure contained in the M&C


                                             6
Agreement between the APA and the City with respect to his claim that “the Last

Chance Agreement is null and void because it does not comply with the terms of

the Meet and Confer Agreement.” (C.R. 25.) Under this Court’s decision in

Hamilton v. Washington, the City is likely correct that Stewart’s claim that seeks

relief based on a violation of the M&C Agreement is barred for this reason.

      It is important to note, however, that the failure to exhaust administrative

remedies does not extend to Stewart’s claim for relief from the Last Chance

Agreement’s provisions on the basis that the APA was not a party to the Last

Chance Agreement. That claim is not based on any of the M&C Agreement’s

provisions; rather, it is based on Texas labor law, including the mandate found in

Subchapter I of Chapter 143 of the Texas Local Government Code that the APA is

the “exclusive bargaining agent” for bargaining with the City on Stewart’s behalf.

See Mata v. City of San Antonio, No. 04-11-00311-CV, 2012 WL 1364594, at *4–

5 (Tex. App.—San Antonio Apr. 18, 2012, pet denied) (discussing a similar claim

based on a different statute with “exclusive bargaining agent” provisions).

      In Mata, there was no issue about district court jurisdiction over the

exclusive-bargaining claim. Id. at 5. The San Antonio Court of Appeals upheld a

rejection of the claim on the merits, holding that a maintenance-of-standards

provision in the collective bargaining agreement covering San Antonio fire fighters




                                         7
incorporated into that agreement a past practice of entering into Last Chance

Agreements to which the exclusive bargaining agent was not a party. Id.

      Although the City’s brief attempts to show a similar past practice in the

Austin Police Department (Appellants’ Brief at 15–16), the City’s allegations in

that regard are irrelevant to this appeal for at least two reasons. First, the M&C

Agreement between the APA and the City does not contain a maintenance-of-

standards clause (see C.R. 69–81), so the Mata court’s analysis on this issue is

inapplicable. And second, even if the City’s argument were well-founded, it is a

merits argument, not a jurisdictional argument. The City places this argument

under the heading of exhaustion of administrative remedies, but the City does not

identify any administrative remedy that is available to adjudicate a claim of

violation of the exclusive-bargaining-agent requirements of Subchapter I of

Chapter 143 of the Texas Local Government Code. (Appellants’ Brief at 13–17.)

No such administrative remedy exists. As such, the trial court has jurisdiction over

the claim.

      C.     Stewart’s claims against the Police Chief.

      In the final area where the issues in the case can be narrowed, the City points

out that Stewart abandoned any claims against Chief Acevedo in his live pleading.

(Appellants’ Brief at 22–23.) That amended pleading acted as a nonsuit. See

American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 831 (Tex. 1994); Webb v.


                                         8
Jorns, 488 S.W.2d 407, 409 (Tex. 1972). As such, there is nothing to “dismiss,” as

the City requests.

                           CONCLUSION & PRAYER

      The Last Chance Agreement allows Stewart to be fired without recourse if

and only if he actually commits misconduct that is similar to the conduct that led to

the 2012 agreed suspension. The Agreement could have been—but was not—

drafted to provide that any accusation that Stewart committed similar misconduct,

even without a shred of evidence to support it, could lead to his permanent

dismissal from the Department without the possibility of review.            Such an

agreement would truly defeat the intent of a last-chance agreement, which is to

retain the officer as long as no repeat violation occurs. An agreement that allowed

a mere accusation to deprive an officer of appeal rights would give the police chief

a one-year ability to unilaterally end an officer’s career for any reason with the

stroke of a pen, and no officer would enter into such an agreement without any

mechanism to require evidence of an allegation of similar misconduct.

      On the other hand, the plain language of the agreement (or what the City

calls “Stewart’s self-serving interpretation”) does not render the intent behind last-

chance agreements meaningless, as the City contends.       On the contrary, it offers

both sides the protections they need for such an agreement to be meaningful. The

officer is able to have independent review of a dispute over whether the officer


                                          9
actually committed similar misconduct, but the police chief is able to avoid review

of the appropriate level of discipline when there is a finding that similar

misconduct did in fact occur.1

       As such, even if the Court were inclined to accept the City’s invitation to

analyze policy considerations and weigh fairness in addition to (or instead of)

simply construing the plain language of the Last Chance Agreement and the Civil

Service Act, those factors weigh in favor of Stewart’s position as well.

Accordingly, the issues in the case can be narrowed as described above, but the

Court should uphold the trial court’s denial of the City’s plea to the jurisdiction on

the primary claim in the case, and remand that claim for trial.




1
  This is a significant benefit, because it is quite common for hearing examiners to reduce or
reverse discipline imposed by department heads, even where misconduct is found. See, e.g., City
of Waco v. Kelley, 309 S.W.3d 536 (Tex. 2010) (hearing examiner reduced indefinite suspension
to temporary suspension); City of Houston v. Clark, 197 S.W.3d 314 (Tex. 2006) (hearing
examiner found that misconduct occurred, but reversed temporary suspension based on
procedural issue); City of Mission v. Gonzalez, No. 13–10–00688–CV, 2012 WL 3762040 (Tex.
App.—Corpus Christi Aug. 30, 2012, pet. denied) (hearing examiner reduced indefinite
suspension to temporary suspension); City of Houston v. Tones, 299 S.W.3d 235 (Tex. App.—
Houston [14th Dist.] 2009, no pet.) (hearing examiner found that misconduct occurred, but
reversed temporary suspension based on procedural issue); City of Lancaster v. Clopton, 246
S.W.3d 837 (Tex. App.—Dallas 2008, no pet.) (hearing examiner reduced indefinite suspension
to temporary suspension); City of Laredo v. Leal, 161 S.W.3d 558 (Tex. App.—San Antonio
2004, pet. denied) (hearing examiner reduced indefinite suspension to temporary suspension).
                                              10
                               Respectfully submitted,

                               DEATS, DURST & OWEN, P.L.L.C.
                               1204 San Antonio, Suite 203
                               Austin, Texas 78701
                               (512) 474-6200
                               (512) 474-7896 (Fax)

                                     /s/ Matt Bachop
                               B. Craig Deats
                               State Bar No. 05703700
                               cdeats@ddollaw.com
                               Matt Bachop
                               State Bar No. 24055127
                               mbachop@ddollaw.com

                               COUNSEL FOR APPELLEE


                     CERTIFICATE OF COMPLIANCE

     I hereby certify that this brief complies with the word count limit contained
in TEX. R. APP. P. 9.4(i)(2)(B) because it contains 3,214 words.

                                 /s/ Matt Bachop



                        CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing document has
been sent to counsel for Appellants, Chris Edwards, Assistant City Attorney, CITY
OF AUSTIN-LAW DEPARTMENT, P. O. Box 1546, Austin, Texas 78767-1546,
Fax: (512) 974-1311, chris.edwards@austintexas.gov, on this 15th day of
December, 2015, by electronic service.


                                 /s/ Matt Bachop



                                        11
