the City of Waco, Texas v. Larry Kelley

 

IN THE

TENTH COURT OF APPEALS

 


No. 10-03-00214-CV

 

The City of Waco, Texas,

                                                                      Appellant

 v.

 

Larry Kelley,

                                                                      Appellee

 

 

 


From the 74th District Court

McLennan County, Texas

Trial Court # 2002-1959-3

 

MEMORANDUM  Opinion

 

          Larry Kelley is a police officer of the City of Waco.  A dispute between them was submitted to a hearing examiner under the applicable sections of chapter 143 of the Local Government Code.  The City filed an appeal in the district court, which essentially affirmed the hearing examiner’s decision.  The City then filed an appeal to this court.

          Kelly filed a plea to the jurisdiction in the trial court, which was denied.  Now he points to City of Houston v. Clark, 2004 WL 332463 (Tex. App.—Houston [14th Dist.] February 24, 2004, pet. filed), holding in similar circumstances that a trial court has no jurisdiction because the city has no right of appeal from a hearing examiner’s decision—only the firefighter or police officer can appeal and then only in limited circumstances.  Tex. Loc. Gov’t Code Ann. § 143.1016(c), (j) (Vernon 1999).  But, whether he raised the jurisdictional question in the trial court, or here, or not at all is immaterial.  See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993) (may be raised for the first time on appeal by the parties or by the court).

          Although Clark was decided under section 143.1016 of chapter 143, section 143.057, under which the City of Waco purported to appeal to the district court, is almost identical.  We will follow the

Houston Court
in Clark.  Thus, we vacate the trial court’s judgment and dismiss the case in its entirety.  Tex. R. App. P. 43.2(e); Dallas County Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex. App.—Dallas 1994, pet. denied) (“Appellate court jurisdiction of the merits of a case extends no further than that of the court from which the appeal is taken.  If the trial court lacked jurisdiction, then an appellate court only has jurisdiction to set the judgment aside and dismiss the cause.”).

 

FELIPE REYNA

Justice

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

          (Chief Justice Gray dissenting)

Judgment vacated; case dismissed

Opinion delivered and filed October 29, 2004

[CV06]

we do not believe he was harmed by the court's answer to the jury's inquiry. We overrule point three.

      Having found error, we reverse the judgment and remand the case for further proceedings. Because the error occurred at the punishment stage, the reversal will result in a new trial as to punishment only. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 1995).

 


                                                                                 BILL VANCE

                                                                                 Justice


Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Reversed and remanded

Opinion delivered and filed August 23, 1995

Do not publish