                                Fourth Court of Appeals
                                        San Antonio, Texas
                                                 OPINION
                                            No. 04-13-00172-CV

                                        CITY OF SAN ANTONIO,
                                               Appellant

                                                     v.
                                                   Joseph
                                           Joseph SALVAGGIO,
                                                  Appellee

                      From the 57th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2011-CI-04708
                            Honorable Richard E. Price, 1 Judge Presiding

Opinion by:      Rebeca C. Martinez, Justice

Sitting:         Karen Angelini, Justice
                 Marialyn Barnard, Justice
                 Rebeca C. Martinez, Justice

Delivered and Filed: November 20, 2013

AFFIRMED

           The City of San Antonio appeals the trial court’s summary judgment in favor of San

Antonio Police Lieutenant Joseph Salvaggio affirming the hearing examiner’s award overturning

Salvaggio’s indefinite suspension and reinstating him to his former position. We affirm the trial

court’s judgment.




1
  The Honorable Richard E. Price, presiding judge of the 285th Judicial District Court, Bexar County, Texas, signed
the judgment; however, the Honorable Martha Tanner, former presiding judge of the 57th Judicial District Court,
Bexar County, Texas, presided over the summary judgment hearing.
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                           FACTUAL AND PROCEDURAL BACKGROUND

       The basic facts are undisputed and set forth in detail in the hearing examiner’s written

decision and award. On January 22, 2010, Salvaggio, a lieutenant with the San Antonio Police

Department (SAPD), took an examination to qualify for promotion to the rank of captain. The

exam had a two-hour morning session consisting of a written exam and a two-hour afternoon

session consisting of a scenario-based exam. The examination was proctored by two City

employees. Before the morning session began, a proctor placed three-inch square post-it notes

with numbers written on them on the tables in the testing room. The numbers on the post-it notes

corresponded to the numbers assigned to the candidates taking the test. This was the first time

post-it notes were used to designate assigned seats. Before the test began, a proctor read

instructions regarding the examination. One of the instructions was that if a candidate needed a

restroom or water break during the exam, he was to cover his answer sheet, leave all the test

materials on the table, and a proctor would escort him out. No description or definition of “test

materials” was given, and no instructions were given regarding scribbling notes on the numbered

post-it notes. The candidates were instructed that they could write in their test booklets, but were

told not to make extraneous marks on the answer sheet which could cause the answer sheet to be

misread. Between the morning and afternoon exam sessions, the candidates were permitted to use

any study materials to prepare for the second part of the test. Moreover, in past promotional exams,

the proctors allowed the candidates to use scratch paper during the examination and did not collect

the scratch paper at the end of the exam.

       During the morning exam session, Salvaggio used the post-it note as scratch paper, writing

down notes about topics he wanted to review during the mid-day break. Salvaggio later requested

permission to leave the exam room to go to the restroom. The proctor told him to wait because

another candidate had just gone to the restroom. When the proctor returned to tap Salvaggio on
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                                                                                     04-13-00172-CV


the shoulder to indicate it was his turn for the restroom, she noticed something in his hand. When

Salvaggio stood up he still had the object in his hand, and the proctor asked him what it was—

Salvaggio handed it to her. The proctor saw it was the post-it note with some writing on it. She

told Salvaggio he could not take the post-it note out of the exam room and she retained the note.

Salvaggio went to the restroom and returned to the exam room. He made no changes to his

morning session answers before turning them in. The proctor reported the incident to a captain

who was on site working on the second phase of the exam, and the captain reported it to an assistant

police chief who was also present.       The two officers questioned the proctors about what

instructions were given regarding removing test materials from the exam room and learned that no

definition of “test material” was given to the candidates.

       Several months later, some incidents involving several candidates taking test booklets out

of a detective promotional examination were reported to the media. During an investigation of

these incidents by SAPD Internal Affairs, the post-it note incident with Salvaggio was mentioned

and a separate investigation was opened.        Salvaggio was notified of the Internal Affairs

investigation in May 2010. On July 16, 2010, Salvaggio received a letter notifying him that he

was charged with violating Civil Service Rule (12): “Violation of an applicable fire or police

department rule or special order.” TEX. LOC. GOV’T CODE ANN. § 143.051(12) (West 2008). The

department rule allegedly violated by Salvaggio was identified as SAPD Rule 3.04(C):

       Rule 3.04 — RESPONSIBILITY TO SERVE THE PUBLIC:
       Members shall serve the public through direction, counseling, assistance, and
       protection of life and property. Members shall also respect the rights of individuals
       and perform their services with honesty, sincerity, courage, and sound judgment.
       …

       (C) CONDUCT AND BEHAVIOR:
       Members, whether on-duty or off-duty, shall be governed by the ordinary and
       reasonable rules of good conduct and behavior, and shall not commit any act
       tending to bring reproach or discredit to themselves or the department.


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As the specific factual basis for the disciplinary suspension, the letter stated that “On January 22,

2010, during the administration of the Police Captain’s Promotional Examination . . . Lieutenant

Joseph Salvaggio attempted to remove test material from the testing room.”

       SAPD Chief William McManus has a Chief’s Advisory Action Board that is comprised of

two advisory boards—a citizen advisory action board whose members are community citizens

appointed by the City Council, and a police advisory action board whose members are police

officers appointed by the Chief of Police. The investigative report prepared by Internal Affairs

was submitted to both advisory action boards for review and recommendation. After the citizen

advisory board reviewed the Internal Affairs report and heard Salvaggio’s testimony, it

recommended that the charge be dismissed as unfounded. The police advisory board took several

votes before reaching a consensus and recommending that Salvaggio be suspended for thirty days.

       Chief McManus then reviewed the Internal Affairs investigative report, the advisory

boards’ recommendations, and met with his command staff and with Salvaggio. At the conclusion

of his review, Chief McManus concluded that Salvaggio’s conduct with respect to the post-it note

violated SAPD Rule 3.04(C), and thereby violated Civil Service Rule (12). Chief McManus made

the decision to indefinitely suspend Salvaggio. An indefinite suspension is equivalent to dismissal

from the department. See TEX. LOC. GOV’T CODE ANN. § 143.052(b) (West 2008) (authorizing

the head of a police department to suspend a police officer for violation of a civil service rule for

a period not to exceed 15 days or for an indefinite period which is equivalent to dismissal).

       Salvaggio rejected an offer to voluntarily accept a temporary suspension and elected to

appeal his indefinite suspension to an independent third party hearing examiner, instead of to the

Civil Service Commission. See TEX. LOC. GOV’T CODE ANN. § 143.057(a) (West 2008). In ruling

on an appeal, a hearing examiner has the same powers and duties as the Civil Service Commission,

except the power to make rules. TEX. LOC. GOV’T CODE ANN. § 143.057(f) (West 2008); see
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Collective Bargaining Agreement between City of San Antonio and San Antonio Police Officers’

Association (CBA), Art. 27, § 11 (stating that a hearing examiner has “all the powers and only

those powers vested in the Commission under Chapter 143 of the Local Government Code and the

Commission Rules, with respect to suspensions, terminations, and demotions, with the sole

exception of the power to amend such rules”). Section 143.053 defines the Commission’s powers

and the procedure for an appeal to the Commission. TEX. LOC. GOV’T CODE ANN. § 143.053 (West

2008). It states that in an appeal the department head is restricted to the original written statement

and charges, which may not be amended. Id. § 143.053(c). In its decision resolving the appeal,

the Commission is required to determine whether the suspended officer should be (1) permanently

dismissed, (2) temporarily suspended, or (3) restored to his or her former position in the

department. Id. § 143.053(e). The Commission is authorized to suspend or dismiss a police officer

only for violation of a civil service rule and only after a finding by the Commission of the truth of

the specific charges against the officer. Id. § 143.053(g).

           At a hearing on December 7-8, 2010, 2 the hearing examiner was presented with testimony,

evidence, and argument from both sides; in addition, post-hearing briefs were submitted by both

sides. On March 9, 2011, the hearing examiner rendered a decision and award in favor of

Salvaggio, concluding that the charge against him was “not true” because the City failed to

establish that he violated any rule. Having found there was no just cause to sustain the disciplinary

action, the hearing examiner overturned Salvaggio’s suspension and restored him to his former

position with full back pay. TEX. LOC. GOV’T CODE ANN. § 143.053(f). In a lengthy written

decision, the hearing examiner found that:

           1. It is undisputed that the term “test materials” was never defined by the
              Commission or the test proctors;


2
    The appellate record does not contain a transcript of this hearing.

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2. The closest thing to a definition of “test materials” was in the sixth bullet
   paragraph of the “Instructions for Promotional Examinations,” which states in
   relevant part, “If you finish before time is called, please bring your test booklet,
   answer sheet and pencils to the front/back and give them to the individual at the
   collection table;”

3. Witness testimony regarding what were “test materials” was presented by both
   sides, with the City’s witnesses stating they believed the post-it notes were “test
   materials,” and the police union’s witnesses stating they did not;

4. The post-it notes were used in the testing room to designate where candidates
   were to sit, and were thrown in the trash after testing was complete, i.e., the
   post-it notes were not treated similarly to the test booklet, answer sheet and
   pencils;

5. The Commission has the sole authority to establish rules and regulations
   pertaining to promotion of police personnel and the Commission Director, and
   municipal employees working under the Director, have the responsibility of
   maintaining the fairness of the promotional exam; therefore, “the Commission
   is the sole authority to determine what constitutes ‘test material;’”

6. Neither the municipal employees acting as proctors for the examination nor the
   Sergeant charged with conducting the Internal Affairs investigation solicited
   the Commission’s determination of whether the post-it note and its use in the
   testing area caused it to become “test material;”

7. Chief McManus determined that the post-it note was test material, concluded
   that Salvaggio attempted to take it out of the test area, and thus found that
   Salvaggio had violated the rule against taking test material outside;

8. Since “test material” was undefined by the Commission, Chief McManus did
   not have authority to define “test materials” to include the post-it note;

9. By interpreting the rule against taking test material outside of the test area,
   Chief McManus “engaged in the creation of a new rule,” which he has no
   authority to do; and

10. A definitive determination on whether it was a rule violation for Salvaggio to
    attempt to take the post-it note out of the test area “has not and was not made
    before the Chief disciplined Lt. Salvaggio.”

Based on these specific findings, the hearing examiner stated his conclusion as follows:

Regarding matters of discipline, the CBA requires that Employer establish by a
preponderance of the evidence that the alleged misconduct occurred. Here, the
allegation against Salvaggio is that he violated a rule by attempting to remove test
material out of the testing room. Because of the wording of the allegation, it was
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       essential for the City to establish that the post-it note and its use was test
       material. Based on the above findings, i.e., that there exists no definition for test
       material and that the Chief has no authority to find a Commission violation where
       the Commission has made no ruling that the post-it note was test material, the
       arbitrator concludes that the City cannot meet the ‘preponderance of evidence’ test.
       Thus, the charge against Salvaggio cannot be found to be true.

(emphasis added).

       The hearing examiner’s written decision also contained additional findings addressing the

investigative report’s “underlying inference that Lt. Salvaggio engaged in an act of cheating or

attempted cheating.” The hearing examiner found the record did not contain any evidence that

Salvaggio engaged in any conduct that constitutes cheating or an attempt to cheat.

       The City filed an appeal of the hearing examiner’s decision and award in district court. See

City of Houston v. Clark, 197 S.W.3d 314, 324 (Tex. 2006) (holding municipality, as well as

employee, has right to appeal hearing examiner’s award in district court). As grounds for the

appeal, the City alleged that the hearing examiner “was without jurisdiction and exceeded his

jurisdiction” and acted as a policy maker thereby invading the legislative realm protected by the

non-delegation doctrine; it also alleged the hearing examiner’s award was arbitrary and

unreasonable. See TEX. LOC. GOV’T CODE ANN. § 143.057(j) (West 2008) (“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.”). Salvaggio filed a plea to the jurisdiction asserting the trial court had

no jurisdiction because none of the grounds under section 143.057(j) existed. The trial court

denied the plea. The City and Salvaggio then filed cross-motions for summary judgment, asserting

they were entitled to judgment as a matter of law. Salvaggio attached the hearing examiner’s

award as his summary judgment evidence, while the City attached the CBA, the Civil Service

Rules, and the SAPD Rules as its summary judgment evidence. After a hearing, the trial court


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rendered a final judgment denying the City’s motion and granting summary judgment in favor of

Salvaggio, directing the City to implement the hearing examiner’s award reinstating Salvaggio to

his former position with full back pay. The City now appeals.

                                            DISCUSSION

       On appeal, the City asserts the trial court erred in granting summary judgment for

Salvaggio and should have instead granted its motion for summary judgment because the hearing

examiner exceeded his jurisdiction. Salvaggio responds that he was entitled to summary judgment

as a matter of law because the City failed to establish any ground for its appeal.

       Standard of Review

       We review a trial court’s grant or denial of summary judgment de novo. Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). To prevail on a traditional motion

for summary judgment, the moving party must prove that “there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law on the issues expressly

set out in the motion.” TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d

546, 548 (Tex. 1985). “When reviewing a summary judgment, we take as true all evidence

favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in

the nonmovant’s favor.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).

When there are competing summary judgment motions on the same issues, and the trial court

grants one and denies the other, we consider the summary judgment evidence presented by both

sides and determine all questions presented, and, if we determine the trial court erred, we render

the judgment the trial court should have rendered. Valence Operating Co. v. Dorsett, 164 S.W.3d

656, 661 (Tex. 2005).




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       Analysis

       The Fire Fighters and Police Officers Civil Service Act (the Act) establishes a statutory

framework for police officers to challenge disciplinary suspensions. See TEX. LOC. GOV’T CODE

ANN. §§ 143.001—.363 (West 2008 & Supp. 2012). When a police officer elects to have his

suspension reviewed by an independent third party hearing examiner, instead of the Commission,

the hearing examiner’s decision is final and binding on all the parties. See id. § 143.057(c) (West

2008); see also City of DeSoto v. White, 288 S.W.3d 389, 392 (Tex. 2009). There are very narrow

grounds on which a hearing examiner’s award may be appealed to district court. TEX. LOC. GOV’T

CODE ANN. § 143.057(j). One of the permissible grounds for an appeal is that the hearing examiner

acted without or exceeded his jurisdiction. Id. The Texas Supreme Court has acknowledged the

difficulty of stating a test for determining when a hearing examiner exceeds his jurisdiction, but

framed the relevant inquiry by stating that, “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.” City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex.

2010) (quoting City of Pasadena v. Smith, 292 S.W.3d 14, 21 (Tex. 2009)). In City of Pasadena,

the Supreme Court addressed the jurisdictional boundaries of appeals from disciplinary

suspensions to hearing examiners under the Act. Kelley, 309 S.W.3d at 541. The court held that

the Act’s deadlines, procedures, and limitations pertaining to appeals to the Commission provide

definite standards that apply equally to appeals to hearing examiners. City of Pasadena, 292

S.W.3d at 19-20. The court noted that the absence of such definite standards for hearing examiners

would raise “nondelegation concerns” as hearing examiners could then engage in policy-making,

which is a legislative function. Id. at 18-19 (citing Proctor v. Andrews, 972 S.W.2d 729, 735 (Tex.

1998)). Holding that the Act “both confers and limits the power of a hearing examiner,” the court

expressly stated that a hearing examiner is not authorized to make rules, but must follow the rules
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prescribed by the legislature. City of Pasadena, 292 S.W.3d at 20; see TEX. LOC. GOV’T CODE

ANN. § 143.010(g) (West 2008). Finally, the court stated that asserting the hearing examiner’s

decision is wrong is not the same as asserting the examiner lacked jurisdiction. City of Pasadena,

292 S.W.3d at 21.

        The City relies on City of Garland v. Byrd, 97 S.W.3d 601 (Tex. App.—Dallas 2002, pet.

denied). However, Byrd held that section 143.057’s delegation of power to a hearing examiner

was not an unconstitutional delegation of legislative power to a private entity in violation of the

nondelegation doctrine. Id. at 605, 610. The Byrd court applied eight factors in what is known as

the Boll Weevil analysis in examining the legislative delegation in section 143.057 as a whole to

determine whether the powers granted to the private hearing examiner are “sufficiently limited,

guided, and reviewable so as to pass constitutional muster.” Id. at 610 (citing Tex. Boll Weevil

Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 472 (Tex. 1997) (discussing the eight

factors)).   The nondelegation doctrine is the constitutional restriction on the legislature’s

delegation of its powers to municipalities, administrative agencies, and private entities that

requires “reasonable standards to guide the entity to which the powers are delegated.” Boll Weevil,

952 S.W.2d at 467 (noting “[t]he separation of powers clause [TEX. CONST. art. II, § 1] requires

that the standards of delegation be ‘reasonably clear and hence acceptable as a standard of

measurement,’” quoting Jordan v. State Bd. of Ins., 160 Tex. 506, 334 S.W.2d 278, 280 (1960));

see Proctor, 972 S.W.2d at 734-35. “A delegation of power without such standards is an

abdication of the authority to set government policy which the Constitution assigns to the

legislative department.” City of Pasadena, 292 S.W.3d at 18. The City argues here that the hearing

examiner did not comply with two of the eight Boll Weevil factors, thereby violating the non-

delegation doctrine and exceeding his jurisdiction under section 143.057(j). That is a misstatement

of the Boll Weevil analysis, as it is the Act’s legislative delegation of powers to the hearing
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examiner that is analyzed under the eight factors, not the hearing examiner’s actions in reviewing

a particular disciplinary sanction. See id. at 18-19. Moreover, in stating the test for determining

whether a hearing examiner exceeded his jurisdiction in a particular case, the Supreme Court

rejected the test used in the Byrd case. Id. at 21 (noting that three courts of appeals, including the

Dallas court of appeals in Byrd, had phrased the test for determining whether a hearing examiner

exceeded his jurisdiction as “[a]n abuse of authority occurs when a decision is so arbitrary and

unreasonable that it amounts to a clear and prejudicial error of law”).

       In his brief, Salvaggio provides a survey of cases in which courts have held that a hearing

examiner exceeded his jurisdiction under the City of Pasadena test. In City of Pasadena, the

Supreme Court held the hearing examiner exceeded his jurisdiction by summarily reversing the

police officer’s suspension without accepting and hearing any evidence. Id. at 20-21 (noting the

Act requires the hearing examiner to base his decision on evidence submitted during a hearing).

In Kelley, the Supreme Court held the hearing examiner exceeded his jurisdiction when he reduced

the officer’s suspension to a period of time not authorized by the Act and ordered back pay during

the time the officer was suspended contrary to the Act. Kelley, 309 S.W.3d at 546-50 (also holding

hearing examiner exceeded his jurisdiction by demoting the officer below his prior rank, which

was outside the remedies available to the hearing examiner under the Act).

       The intermediate courts of appeals that have addressed allegations that a hearing examiner

exceeded his jurisdiction have required the city to establish that the examiner acted outside the

scope of the Act or violated a specific requirement of the Act. See, e.g., City of Beaumont v.

Mathews, No. 09-10-00198-CV, 2011 WL 3847338, at *2 (Tex. App.—Beaumont Aug. 31, 2011,

no pet.) (mem. op.) (holding hearing examiner acted contrary to the Act, thereby exceeding his

jurisdiction, by reinstating firefighter without an evidentiary hearing where notice given to

firefighter did state the charged acts); Miller v. City of Houston, 309 S.W.3d 681, 685-86 (Tex.
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                                                                                       04-13-00172-CV


App.—Houston [14th Dist.] 2010, no pet.) (holding hearing examiner exceeded his jurisdiction by

reforming indefinite suspension to temporary suspension of 92 days in excess of 15-day statutory

period for temporary suspensions). In City of Athens v. MacAvoy, the court held the hearing

examiner exceeded his jurisdiction by treating the statute requiring service of a signed complaint

on the officer as a jurisdictional requirement for discipline, and in reinstating the officer on the

basis of that procedural defect. City of Athens v. MacAvoy, 353 S.W.3d 905, 910 (Tex. App.—

Tyler 2011, pet. denied). The court characterized the hearing examiner’s action as akin to creating

a rule, stating, “In the absence of a legislative directive that the failure to provide a complainant’s

statement prior to discipline means that the officer will escape discipline, the hearing examiner

exceeded his jurisdiction by crafting such a rule.” Id.; see also City of Mission v. Gonzalez, No.

13-10-00688-CV, 2012 WL 3762040, at *4-5 (Tex. App.—Corpus Christi-Edinburg Aug. 30,

2012, pet. denied) (mem. op.) (affirming dismissal of city’s declaratory judgment suit seeking to

overturn hearing examiner’s award reinstating firefighter based on allegation examiner exceeded

his jurisdiction and holding examiner did not exceed his fact-finding role and did not impose a

new rule or policy). Where a city seeks to appeal a hearing examiner’s award but fails to make a

substantial allegation that the hearing examiner exceeded his jurisdiction, or invaded the policy-

making realm, the courts have held that the trial court lacks subject matter jurisdiction over the

appeal. See, e.g., City of Houston v. Tones, 299 S.W.3d 235, 239-40 (Tex. App.—Houston [14th

Dist.] 2009, no pet.) (city’s “unfounded allegations” that hearing examiner misapplied a provision

of the Act were not supported by any case authority and did not amount to hearing examiner

exceeding his jurisdiction; therefore, trial court had no jurisdiction to hear city’s appeal and its

judgment must be vacated and case dismissed for lack of subject matter jurisdiction).

       Here, the City asserts that the hearing examiner exceeded his jurisdiction by “creating a

new rule” concerning what constitutes “test materials” in a promotional exam, which is an action
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not authorized by and contrary to the Act, and which infringes on the policy-making function of

the Commission in violation of the non-delegation doctrine. The City also complains that the

hearing examiner assumed the proctor’s instruction not to remove “test material” from the testing

room was a rule adopted by the Commission, which could only be interpreted by the Civil Service

Commission, not by Chief McManus. The City correctly notes that the Commission has the sole

power to create and adopt Civil Services rules, including those governing promotional exams and

suspensions. TEX. LOC. GOV’T CODE ANN. §§ 143.008, 143.032(a) (West 2008); City of Pasadena,

292 S.W.3d at 20 (hearing examiner is not authorized to make rules, but must follow those in the

Act). If the hearing examiner had, in fact, created a rule defining what constitutes “test material,”

such action might well exceed his jurisdiction under the Act.

         However, the City’s entire jurisdictional argument is based on a faulty premise—that the

hearing examiner created or adopted a definition for the term “test materials.” Reading the hearing

examiner’s written decision as a whole, it is clear that the hearing examiner did not define “test

materials” to exclude, or include, the post-it note. To the contrary, the examiner based his decision

on the fact that the term “test materials” had never been defined by the Commission, which was

the sole entity authorized to define the term. The examiner then concluded that, under the Act,

Chief McManus had no authority to define “test materials” as including the post-it note, which he

implicitly did in finding that, by “attempting to take test materials out of the test area,” Salvaggio

violated SAPD Rule 3.04(C) and Civil Service Rule (12). The examiner thus concluded that the

Chief had effectively created a new rule “by interpreting the rule against taking test material

outside of the testing area.” 3 The examiner noted that “a definitive determination” of whether



3
 In arguing that the hearing examiner “assumed the proctors’ instructions were rules” and thereby himself created a
new rule, the City isolates the examiner’s use of the word “rule” instead of “instruction” from the context of the entire
decision and award.

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Salvaggio’s conduct was a rule violation was not made before the Chief disciplined him, as

required by Chapter 143. Given the phrasing of the statement of charges against Salvaggio, the

examiner concluded that the City was required to establish that the post-it note was “test material”

and that the City had failed to prove the allegation by a preponderance of the evidence; therefore,

the charge “could not be found to be true.” Once the hearing examiner found the charge against

Salvaggio to be “untrue,” which was within his role as fact-finder, he was limited in the decision

he could render in that an officer must be restored to the same or equivalent classification if the

charges are found to be untrue. Kelley, 309 S.W.3d at 543; TEX. LOC. GOV’T CODE ANN.

§§ 143.053(e), (g). The hearing examiner appropriately rendered the award required by his

findings under section 143.053. Finally, in his written decision, the hearing examiner correctly

explained the scope of his jurisdiction and power under the Act. The hearing examiner’s actions

did not exceed his jurisdiction under the Act.

       The City also argues the hearing examiner exceeded his jurisdiction by requiring Chief

McManus to prove “something different” than the charge he filed against Salvaggio and by failing

to determine whether Salvaggio committed an act tending to bring reproach or discredit to himself

or the department in violation of Department Rule 3.04(C). The City asserts the hearing examiner

focused on the wrong thing—whether the post-it note was “test material”—and “did not decide

whether McManus’ charge was ‘true.’” The City’s argument overlooks the fact that, as stated in

the written charge made by McManus, the only factual basis for Salvaggio’s purported violation

of Department Rule 3.04(C) was that he “attempted to remove test material from the testing room.”

See TEX. LOC. GOV’T CODE ANN. § 143.053(c) (in an appeal of a disciplinary suspension, the

department head is restricted to the original written statement and charges which may not be

amended). The hearing examiner’s written decision clearly states at least twice that the charge

against Salvaggio “cannot be found to be true” and “is not true” because the City failed to prove
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that he attempted to take test material out of the test area. Moreover, even though the hearing

examiner did not expressly refer to Department Rule 3.04(C) in the “Additional Findings” portion

of his award, he concluded that the record contained no evidence that Salvaggio engaged “in any

conduct that constitutes cheating or an attempt to cheat.”

                                          CONCLUSION

       Viewing the summary judgment record in the light most favorable to the City, the City’s

arguments that the hearing examiner exceeded his jurisdiction are not supported by the facts or the

law. Therefore, Salvaggio was entitled to summary judgment as a matter of law, and the trial court

did not err in denying the City’s summary judgment motion. Accordingly, we affirm the trial

court’s judgment.



                                                  Rebeca C. Martinez, Justice




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