13th Court disagrees with 4th Court and holds constables can collectively bargain

Jefferson County Constables Association v. Jefferson County, Texas 13-14-00188-CV (Tex. App.- Corpus Christi, May 5th 2016)

This is a civil service case where the County sought to overturn an arbitration award. The 13th Court of Appeals expressly disagreed with the 4th Court and created a split in the circuits as to whether the Fire and Police Employee Relations Act (“FPERA”) applies to County Constables.

Jefferson County (“County”) and Jefferson County Constables Association (“Association”) entered into a collective bargaining agreement for its law enforcement personnel. It contained a provision requiring binding arbitration for any disputes regarding the contract. During the period of the agreement, the County eliminated several deputy constable positions entirely. The Association asserted the layoffs violated the requirement that seniority be the sole factor for layoffs and submitted it to arbitration. The arbitrator issued a holding in favor of the Association. The County appealed to district court which reversed the award. The Association appealed.

The first issue to address on appeal was whether the Association had the authority to enter into a collective bargaining agreement in the first place.  The San Antonio Court of Appeals in Wolff v. Deputy Constables Association of Bexar County, 441 S.W.3d 362, 366 (Tex. App.—San Antonio 2013, no pet.) held FPERA listed which law enforcement entities were allowed to enter into collective bargaining agreements and “constables” were not one of them. (Summary found here.) Therefore, Wolff held constables could not collectively bargain and any such contracts were void. Using different principals of statutory construction than Wolff, and going outside of FPERA, the 13th Court held “[C]onstables and their deputies, are statutorily designated as peace officers under article 2.12 of the Code of Criminal Procedure.” Further, “[g]iven the liberal construction required by the FPERA, we find no meaningful distinction between deputy sheriffs and deputy constables with respect to the FPERA’s definition of ‘police officers.’” The panel agreed FPERA’s limiting language would exclude certain peace officers who do not serve in what can be categorized as a “police department.” However, the court held “…we do not interpret such language as operating to exclude deputy constables, who work in a county law enforcement office established by the Texas Constitution.”  As a result, constables can collectively bargain. As to the award, the court held Texas Local Government Code §86.011 and §151.001 prohibits an award ordering appointment of new positions, but is not applicable for reinstatement of already established positions (even if the positions are eliminated).  And after analyzing the County’s position it determined the County’s argument “is not that the arbitrator did not have the authority to interpret the agreement, but that the arbitrator decided the issue incorrectly.”  A district court is not authorized to second guess the correctness of an arbitrator’s decision and is limited to determining whether the arbitrator exceeded his authority or was without authority. The panel reversed the trial court and issued an award in favor of the Association.

To read the full opinion click here. Panel: Chief Justice Valdez, Justice Rodriguez and Justice Perkes. Opinion issued by Justice Perkes. The Attorneys for Jefferson County are Kathleen Marie Kennedy and Gerald Riedmueller. Attorneys for the Jefferson County Constables Association are Craig Tahaney and Lance P. Bradley.