City of Lubbock, Texas v. Christopher Hennsley, 07-12-00325-CV (Tex. App. – Amarillo, September 12, 2013).
This is a police employment dispute under Tex. Gov’t Code §614.023 (or possibly §143.052) where the City appealed a hearing examiner decision and the trial court granted the police officer’s plea to the jurisdiction. The Amarillo Court of Appeals reversed holding the hearing examiner exceeded his authority by picking and choosing which alleged actions of wrongdoing to consider.
Chapter 614 essentially applies to non-civil service cities and states an officer cannot be disciplined without a written complaint being filed, being given the complaint, and an opportunity to respond. Officer Hennsley received a notice from his captain describing an incident of possible excessive force. During the investigation into it, Hennsley received a second letter with additional charges. He was given the opportunity to respond to both before being terminated. However, the hearing examiner expressly stated he was only considering the certain charges. The hearing examiner reversed the termination and modified the disciplinary action to a 15 day suspension. The City appealed noting Chapter 614 was inapplicable, and 143.057(j) of the Texas Local Government Code was the proper standard (dealing with civil service agreements). The trial court granted Hennsley’s plea to the jurisdiction (although the opinion is unclear as to the basis of the plea other than simply no jurisdiction exists). The court noted in a footnote that because of its ultimate decision, it need not address whether Chapters 614 or 143 should have been used.
The court noted that Hennsley was given both charges in writing and an opportunity to respond before any disciplinary action was taken. Adopting City of Houston v. Wilburn, No. 01-12-00913-CV, 2013 WL 3354182, 2013 Tex. App. LEXIS 8091 (Tex. App.–Houston [1st Dist.] July 2, 2013, no pet. h.) the court held charges of wrongdoing need not be contained within a single document. A hearing examiner’s jurisdiction is very narrow and the examiner has no jurisdiction to rule in a manner not authorized by statute. Nothing provided the “examiner any type of discretion to pick and choose which accusations to review.” By doing so he implemented his own procedural rules “regarding the quantum of prior notice that should be afforded, applied it retroactively to the situation at hand, and concluded that the quantum of notice was not enough.” Such is unauthorized and not within a hearing examiner’s discretion. Since there exists evidence the hearing examiner exceeded his authority, the plea was improperly granted. The court reversed and remanded.
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