Officer waived his right to appeal in last chance agreement so trial court was without jurisdiction said Austin Court of Appeals

The City of Austin Firefighters’ and police Officers’ Civil Service Commission, et al v William M. Stewart, No. 03-15-00591-CV (Tex. App. – Austin, April 14, 2016)

This is a civil service employment dispute where the Austin Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the Plaintiff’s claims.

Stewart was a police officer employed by the City of Austin’s police department (“APD”). APD conducted an internal investigation and determined Stewart violated various policies. Rather than appeal, Stewart (while represented by an attorney) entered into a last chance agreement for a 60 days suspension and probation for a year. Almost 11 months later, Stewart was indefinitely suspended after Chief Acevedo determined that Stewart had committed similar acts of misconduct after his sixty-day suspension.  Stewart attempted to appeal, but was told he waived the right to appeal in the Last Chance Agreement.  Steward sued attempting to compel a hearing. The City filed a plea to the jurisdiction which the trial court denied. The City appealed.

The only question the court determined it must answer is whether the Civil Service Director committed an ultra vires act in refusing to forward Stewart’s appeal to a hearing examiner. If Stewart waived his right to appeal, the Director did not act ultra vires, and the trial court lacked jurisdiction over the claim.  The City had entered into a Meet and Confer (“M&C”) with the bargaining unit. Under the M&C Agreement, if an officer is subject to indefinite suspension, the Police Chief and the officer may enter into a last chance agreement; if the officer agrees to such an agreement but then commits a same or similar act of misconduct within the agreed probationary period, the officer “will be indefinitely suspended without right of appeal.” The applicable section does not refer to a third-party fact-finder having any authority to make a determination of same or similar misconduct. The court held “the parties did not intend that an officer given a last chance after committing misconduct serious enough to warrant immediate termination should be able to appeal if it was later and again determined that he should be terminated.” Allowing an officer who enters into a last chance agreement as an alternative to immediate termination to “unwaive” his right to appeal would defeat the purpose of the waiver language.  Thus, the Director did not commit an ultra vires act in refusing to process Stewart’s notice of appeal.

If you would like to read this opinion click here.  Opinion given by Justice Puryear, Justice Goodwin, and Justice Field.  Memorandum opinion given by Justice Puryear.  Attorney for the Appellants is Chris Edwards.  The attorneys for the Appellee are Craig Deats and Matt Bachop.