Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-11-00900-CV
Gary BIESENBACH,
Appellant
v.
THE CITY OF SAN
THE CITY OF SAN ANTONIO,
Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2009-CI-13675
Honorable Victor Negron, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: July 17, 2013
REVERSED AND DISMISSED
This appeal involves actions taken with regard to a notice of indefinite suspension issued
to Firefighter Gary Biesenbach. After an independent hearing examiner ordered Biesenbach to be
reinstated with back pay, the City of San Antonio filed the underlying cause in district court
asserting the “hearing examiner” was an arbitrator, and the arbitrator exceeded his jurisdiction in
issuing his decision. The trial court agreed with the City and remanded the matter for additional
arbitration limited to a specific issue. In this appeal, Biesenbach challenges the trial court’s
judgment on numerous grounds.
04-11-00900-CV
BACKGROUND
On May 16, 2007, Biesenbach was issued eleven notices of proposed suspension by Fire
Chief Charles N. Hood for violations of civil service rules of the San Antonio Fire Department.
Six of the notices were for indefinite suspension. 1
After a meeting regarding the notices, Biesenbach and Chief Hood subsequently entered
into a Last Chance Agreement whereby Chief Hood agreed to forgo disciplinary action in exchange
for Biesenbach’s agreement to various terms. Because of Biesenbach’s prior attendance problems,
one of the terms of the Agreement required Biesenbach to obtain prior authorization from the fire
chief or a deputy fire chief before taking any leave. When Biesenbach subsequently took leave
without the prior authorization required by the Agreement, Chief Hood issued a new notice of
indefinite suspension. Although the Agreement stated that Biesenbach would be indefinitely
suspended for failure to comply with the terms of the Agreement “without the right of appeal,” the
notice of indefinite suspension stated that Biesenbach had the right to appeal his suspension, and
Biesenbach timely gave notice of his intent to appeal to an independent hearing examiner.
The hearing examiner issued an opinion, and his title of “hearing examiner” appears after
his signature. Although Chief Hood’s notice of indefinite suspension cited the Fire Department’s
rules 6.04 and 6.09, the hearing examiner noted that the City did not contend that these rules served
as an independent basis for the indefinite suspension. Instead, the City’s brief stated that the notice
was issued because Biesenbach violated the Agreement. Biesenbach argued that the Agreement
was invalid and unenforceable, while the City argued that the Agreement was valid and binding.
The hearing examiner concluded that the Agreement was precluded by a Collective Bargaining
Agreement in which the City recognized the International Association of Fire Fighters, Local 624
1
“An indefinite suspension is equivalent to dismissal from the department.” TEX. LOC. GOV’T CODE ANN.
§ 143.052(b) (West 2008).
-2-
04-11-00900-CV
as the exclusive bargaining agent for all San Antonio firefighters. 2 The hearing examiner noted
that the Agreement would have been valid and enforceable if it had been signed by the Association.
Accordingly, the hearing examiner did not sustain the charge in the notice of indefinite suspension
and awarded reinstatement and back pay as a remedy. The hearing examiner’s opinion further
stated that the parties agreed at the hearing that the hearing examiner would retain jurisdiction
over: (1) the issue of back pay in the event the parties could not agree on the amount; and (2) the
issue of attorney’s fees.
The City filed a petition in the trial court. In its petition, the City alleged that Biesenbach
did not have the right to appeal his indefinite suspension to a hearing examiner. Instead, the City
asserted that it agreed to arbitrate only the issue of whether Biesenbach violated the terms of the
Agreement. The City further contended that the arbitrator exceeded the scope of his authority in
determining the Agreement was not valid or enforceable. The City also sought declaratory relief
that the Agreement was valid and enforceable.
After a bench trial, the trial court entered a judgment concluding that the arbitrator
exceeded his jurisdiction. The trial court ordered that the arbitration award issued by the arbitrator
be withdrawn and remanded the matter for arbitration to determine whether the Agreement was
violated by Biesenbach and to award “any applicable remedies available to the prevailing party.”
The judgment states, “The issue of attorney’s fees for Mr. Biesenbach is left for the arbitrator to
decide.”
HEARING EXAMINER V. ARBITRATOR
In arguing that Biesenbach waived his right to appeal to a hearing examiner, the City relies
on the portion of the Agreement stating that Biesenbach “shall be indefinitely suspended without
2
After the hearing examiner issued his opinion, this court addressed this issue in Mata v. City of San Antonio, No. 04-
11-00311-CV, 2012 WL 1364594, at *5 (Tex. App.—San Antonio Apr. 28, 2012, pet. denied) (mem. op.).
-3-
04-11-00900-CV
the right of appeal” in the event he fails to comply with the terms of the Agreement. Based on its
contention that Biesenbach waived the right to appeal to a hearing examiner, the City contends the
person who heard the appeal was, in reality, an arbitrator, and the City agreed to arbitrate only the
limited issue of whether Biesenbach violated the Agreement. By arbitrating the validity of the
Agreement, the City contends that the arbitrator exceeded his authority.
The City’s argument, however, appears to ignore the actions taken after Biesenbach’s
alleged violation of the Agreement. It is undisputed that Chief Hood issued a notice of indefinite
suspension after Biesenbach allegedly violated the Agreement by taking leave without the
authorization required by the Agreement. The notice contained a “NOTICE OF RIGHT OF
APPEAL” wherein Biesenbach acknowledged receipt of the notice of indefinite suspension and
that he had been notified that he had “ten days to file a written appeal of [the] suspension with the
Fire Fighters’ and Police Officers’ Civil Service Commission for hearing before the Commission
or an independent third party hearing examiner.” Section 143.057(a) of the Texas Local
Government Code mandates that this language be included in any letter of disciplinary action
issued to a fire fighter. TEX. LOC. GOV’T CODE ANN. § 143.057(a) (West 2008) (providing that a
letter of disciplinary action issued to a firefighter “must state that in an appeal of indefinite
suspension … the appealing fire fighter … may elect to appeal to an independent third party
hearing examiner instead of to the commission”) (emphasis added). Accordingly, by issuing the
notice of indefinite suspension, the City waived the provision of the Agreement that would have
deprived Biesenbach of his right of appeal and invoked the statutory mandate that permitted
Biesenbach to appeal to an independent hearing examiner. See id.
JURISDICTION
Biesenbach asserts in his brief that the decision by the hearing examiner was not final
because it did not resolve the issue of attorney’s fees. Although the City does not address this
-4-
04-11-00900-CV
issue in its brief, the City expressly noted in its petition, “The arbitrator has retained jurisdiction
of the matter to settle ongoing issues.”
In order to appeal a hearing examiner’s decision to district court, the decision must be a
final decision. TEX. LOC. GOV’T CODE ANN. § 143.015(a) (West 2008) (noting appeal to district
court requires a petition to be filed within a given deadline after the final commission decision);
see also City of Pasadena v. Smith, 292 S.W.3d 14, 21-22 (Tex. 2009) (citing section 143.015(a)
to determine deadline for filing petition to appeal hearing examiner’s decision); Collins v. Tex
Mall, L.P., 297 S.W.3d 409, 415 (Tex. App.—Fort Worth 2009, no pet.) (“Texas law generally
recognizes that an essential prerequisite to the trial court’s power to review an arbitral award is
that the arbitrator’s decision be final, not interlocutory.”). A decision or judgment which does not
dispose of a claim for attorney’s fees is not a final decision or judgment. McNally v. Guevara, 52
S.W.3d 195, 196 (Tex. 2001); Rosedale Partners, Ltd. v. 131st Judicial Dist. Court, Bexar County,
869 S.W.2d 643, 649 (Tex. App.—San Antonio 1984, orig. proceeding). Because the hearing
examiner retained jurisdiction over the issue of attorney’s fees, his decision was interlocutory, and
the trial court was without jurisdiction to consider an appeal of the decision.
DECLARATORY JUDGMENT CLAIM
In remanding the matter to arbitrate the issue of whether Biesenbach violated the
Agreement, the trial court necessarily declared the Agreement to be valid and enforceable, which
is contrary to the decision reached by the hearing examiner. In his brief, Biesenbach asserts that
the trial court was without jurisdiction to consider the City’s declaratory judgment claim because
the only relief the City could seek was the limited appeal under section 143.057(j).
“The hearing examiner’s decision is final and binding on all parties.” TEX. LOC. GOV’T
CODE ANN. § 143.057(c) (West 2008). Section 143.057(j) limits the grounds on which a district
court may hear an appeal of a hearing examiner’s award. Id. at § 143.057(j). Although the City
-5-
04-11-00900-CV
is permitted to appeal the award, the City’s appeal is similarly constrained to the limited grounds.
See City of Waco v. Kelley, 197 S.W.3d 324, 325 (Tex. 2006); City of Houston v. Clark, 197
S.W.3d 314, 324 (Tex. 2006). Under section 143.057(j), the only grounds the trial court can
consider are: (1) whether the hearing examiner was without jurisdiction or exceeded his
jurisdiction; or (2) whether the order was procured by fraud, collusion, or other unlawful means.
TEX. LOC. GOV’T CODE ANN. § 143.057(j) (West 2008). “[A] hearing examiner exceeds his
jurisdiction when his acts are not authorized by the [Fire Fighters and Police Officers Civil Service]
Act or are contrary to it, or when they invade the policy-setting realm protected by the
nondelegation doctrine.” City of Pasadena, 292 S.W.3d at 21. “[A]sserting that a decision made
by a hearing examiner is incorrect is not the same as asserting that the examiner did not have
jurisdiction.” Id.
“A declaratory judgment action cannot create jurisdiction but is merely a procedural device
for deciding cases already within a court’s jurisdiction.” City of Houston v. Williams, 99 S.W.3d
709, 713 (Tex. App.—Houston [14th Dist.] 2003, no pet.). “Indeed, a suit for declaratory judgment
does not allow a district court to review an agency action not otherwise reviewable.” Id.; see also
City of Houston v. Clark, 252 S.W.3d 561, 565 & n.3 (Tex. App.—Houston [14th Dist.] 2008, no
pet.) (noting requested declaration could address only whether hearing examiner exceeded
jurisdiction not the merits of the hearing examiner’s decision). The City appears to be arguing that
the trial court had jurisdiction to grant the declaratory relief because the enforceability of the
Agreement was not an issue the hearing examiner had jurisdiction to determine. However, because
the hearing examiner’s decision was not final, the trial court was without jurisdiction to consider
whether the hearing examiner’s decision exceeded his jurisdiction. “A trial court has jurisdiction
to make a declaration regarding whether a hearing examiner exceeded his jurisdiction when the
court also has jurisdiction under section” 143.057(j). City of Houston v. Proler, 373 S.W.3d 748,
-6-
04-11-00900-CV
767 n. 18 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Because the hearing examiner’s
decision was not a final decision, the trial court did not have jurisdiction to consider the hearing
examiner’s decision or the City’s declaratory relief claim that the hearing examiner exceeded his
jurisdiction in determining the validity of the Agreement.
CONCLUSION
Because the decision issued by the hearing examiner was not a final decision, the trial court
did not have jurisdiction to review the decision or to make a declaration regarding whether the
hearing examiner exceeded his jurisdiction. Accordingly, the trial court’s judgment is reversed,
and the underlying cause is dismissed without prejudice to the parties’ right to appeal under section
143.057(j) when the hearing examiner’s decision becomes final.
Karen Angelini, Justice
-7-