City not liable for back pay or reinstatement for initially failing to provide a hearing with hearing examiner but court has jurisdiction to issue prospective relief if appropriate

Michael Hamilton v. Mark Washington, in his Capacity as City of Austin Civil Service Director, et al., 03-11-00594-CV (Tex. App. Austin, December 23, 2014)

This is an appeal from the granting of a plea to the jurisdiction in a civil service indefinite suspension case which the Austin Court of Appeals affirmed in part and reversed in part. There is a lot packed into this opinion so the summary is a little long but I’ve tried to distill as much as possible.

Hamilton was given notice he was indefinitely suspended for violating both the Austin Civil Service Commission (“Commission”) and Austin PD rules. The opinion never says what he did or which rules apply.  Hamilton’s lawyer advised he wanted an appeal to a hearing examiner. The City Attorney advised Hamilton his appeal was deficient because simply stated he wanted an appeal and not the required language under §143.010(b) which requires a statement denying charge, challenging legal sufficiency of charge, alleging the action taken does not fit offense, or combination of these statements. Hamilton sued for declaratory relief to compel the Commission to consider his appeal proper and sufficient to trigger its jurisdiction. He sought reinstatement and back pay.  The City filed a plea to the jurisdiction which the trial court granted and Hamilton appealed.

After going through the difference between appealing to the Commission versus appealing to a hearing examiner, the court noted that because the Commission did not hold a hearing (because it felt it had no jurisdiction), Hamilton could not be appealing a decision of the Commission. The suit is therefore an independent action to determine an issue never before addressed by a Texas court, i.e. whether the language of §143.010 must not only be included in an appeal to the Commission but also in an appeal to a hearing examiner. As a result, this is a standard declaratory judgment action to interpret a statute and immunity from suit must be waived separately from chapter 143 of the Texas Local Government Code. The trial court lacked jurisdiction over all retrospective relief including back pay, reinstatement, etc.  because the Commission has exclusive jurisdiction over that dispute. Since the hearing examiner’s powers are equal to that of the Commission, the Commission level is what has exclusive jurisdiction over retrospective relief.  Since the Commission rejected his appeal, he has not exhausted his administrative remedies and no retrospective relief can be granted at this point by the court.  In short, since no order of the Commission or hearing examiner is before the court, the trial court has no jurisdiction to issue retrospective relief. Immunity under the Uniform Declaratory Judgment Act (“UDJA”) to sue a municipality is only waived to challenge an ordinance.  Hamilton challenged the constitutionality of §143.010(b) as being vague and ambiguous as Austin was applying it.  While this is not an Austin ordinance, the court interpreted the “as applied” challenge as a challenge to the City’s pronouncement of the statute and immunity is therefore waived. As a result, the trial court erred regarding the “as applied” constitutionality challenge. Further, a party can sue an official in their official capacity for prospective relief of a ministerial job duty.  Hamilton sued officials for ultra-vires actions and no immunity exists for such a suit for prospective relief only under City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009). Finally, since Hamilton is not a police officer “authorized to act” on behalf of the Austin Police Association (he was only suing for himself), he does not qualify as a party to the collective bargaining agreement for purposes of a breach of contract suit. And while he is a third-party beneficiary, he has not yet exhausted his administrative remedies which are required before he can bring suit. So, the trial court has jurisdiction to hear the “as applied” constitutional challenge and the ultra-vires claims for prospective relief, but nothing else. The court seems to indicate that Hamilton should have sought the prospective relief first, then if successful in getting a hearing, he could have sued after the exhaustion of that process.

If you would like to read this opinion click here. Panel: Chief Justice Jones, Justice Rose, and Justice Goodwin.  Memorandum Opinion by Justice Goodwin. The attorneys listed for Hamilton are Mr. Jason R. Nassour, Mr. Joshua A. Fogelman, and Ms. Jessica M. MacCarty.  The attorney listed for the City defendants is Ms. Chris Edwards.