Affirmed and Memorandum Opinion filed July 18, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00262-CV
BLAYNE D. WILLIAMS, SR., Appellant
V.
CITY OF AUSTIN, Appellee
On Appeal from the 98th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-15-002351
MEMORANDUM OPINION
Blayne D. Williams, Sr. appeals the trial court’s determination that it did not
have subject matter jurisdiction over Williams’s appeal from an independent
hearing examiner’s award. The independent hearing examiner had determined that
the chief of police for the City of Austin had a valid reason to bypass Williams
three times for promotion within the police department. In three issues, Williams
contends that the trial court erred in granting the City’s plea to the jurisdiction. We
affirm.1
Background
Williams joined the Austin Police Department in 2006 as a civilian
employee and became a commissioned officer in June 2008. In February 2011, he
was involved in an off-duty incident at an H.E.B. grocery store that allegedly
involved a physical altercation with an H.E.B. employee. Williams agreed to serve
a 90-day suspension and a one-year probation period related to this incident.
Subsequently, in February 2014, Williams sought and received an expunction
order from a district court, requiring the expunction of certain information
pertaining to the H.E.B. incident.2
In August 2013, Williams passed the written examination for promotion to
the rank of corporal or detective.3 His name therefore was placed on the promotion
eligibility list. However, on October 2, 2013, Williams was placed on indefinite
suspension upon being charged with dishonesty and neglect of duty based on
another off-duty incident.4 This second incident occurred while Williams was
working a department-approved security job at a hotel and involved an allegation
that Williams failed to report that a crime had occurred at the hotel and failed to
1
The Texas Supreme Court transferred this case from the Third Court of Appeals. We
must therefore decide the case in accordance with the precedent of the Third Court of Appeals if
our decisions otherwise would have been inconsistent with that court’s precedent. See Tex. R.
App. P. 41.3.
2
The remedy of expunction allows a person who has been arrested to have all records
and files relating to the arrest removed from the State’s records if he meets the statutory
requirements set out in the expunction statute, chapter 55 of the Texas Code of Criminal
Procedure. Tex. Code Crim. Proc. arts. 55.01-.06; Tex. Dep’t of Pub. Safety v. Nail, 305 S.W.3d
673, 674 (Tex. App.—Austin 2010, no pet.).
3
Within the department, corporal and detective are apparently equal ranks with different
responsibilities.
4
“An indefinite suspension is equivalent to dismissal from the department.” Tex. Loc.
Gov’t Code § 143.052(b).
2
secure possible evidence of that crime. Williams appealed his indefinite suspension
to an independent hearing examiner.
By May 5, 2014, while his appeal of the indefinite suspension was pending,
Williams’s name had risen to the top of the promotion eligibility list. At that time,
there were three open positions to be filled from the list. Under Texas Local
Government Code section 143.036(f), unless the department head has a “valid
reason” for not appointing the person at the top of the eligibility list when a
position becomes open, that person must be appointed to fill the vacancy. Tex.
Loc. Gov’t Code § 143.036(f). Austin Police Department Policy 919 also
specifically authorizes the Austin Chief of Police to bypass candidates on a
promotional eligibility list for a “valid reason.”5
Austin Police Chief Art Acevedo decided to bypass Williams three times
and instead promoted three other officers to fill the vacancies. If a candidate for
promotion has been bypassed three times and the bypasses are not overturned on
appeal, the person’s name is removed from the eligibility list. Id. § 143.036(g).
Acevedo explained his decision to Williams in part by citing Williams’s indefinite
suspension and prior disciplinary history. Williams also appealed this decision to
an independent hearing examiner.
During the pendency of William’s appeal of the promotional bypass, the
hearing examiner in Williams’s appeal of his indefinite suspension issued his
opinion. In the opinion, the hearing examiner upheld the dishonesty charge but not
the neglect of duty charge and reduced the discipline from an indefinite suspension
to a 15-day suspension. Williams thereafter returned to active duty but not at a
5
As will be discussed below, Williams contends that various sections of the Local
Government Code, as well as Policy 919, were preempted by the Meet and Confer Agreement
between the City and Austin Police Association.
3
higher rank.
The hearing examiner on Williams’s appeal of the promotional bypass, I.B.
Helburn, issued his opinion on June 8, 2015. The parties had stipulated the issue in
the appeal as whether Chief Acevedo had a valid reason to bypass Williams three
times for promotion to the rank of detective or corporal. Helburn determined that
Acevedo in fact had a valid reason to bypass Williams and denied the appeal.
Helburn noted in the opinion that the promotional bypass memorandum Acevedo
gave to Williams contained information regarding the H.E.B. incident that should
have been expunged pursuant to the district court’s expunction order. He further
pointed out, however, that Acevedo “testified, credibly” that in making the bypass
determination, he considered the indefinite suspension itself and the related policy
violations. Helburn then concluded that the information that had been improperly
included in the bypass memorandum “cannot be said to have influenced the
decision to bypass” Williams.
Williams thereafter filed an appeal of Helburn’s decision in the court below.
In his petition, Williams makes a number of allegations about the process, most
notably for our purposes that a city attorney impermissibly provided Helburn with
evidence prior to the hearing, the Meet and Confer Agreement between the City
and the Austin Police Association preempted certain portions of the Local
Government Code and internal department policies on which Helburn based his
decision, and information that should have been expunged was improperly before
Helburn. The City filed a plea to the jurisdiction challenging the trial court’s
subject matter jurisdiction and presenting evidence on the jurisdictional issues. The
trial court granted the plea and dismissed the case.
Governing Law
Whether a trial court has subject matter jurisdiction is a question of law we
4
review de novo. City of Houston v. Williams, 353 S.W.3d 128, 133–34 (Tex.
2011). When considering a plea to the jurisdiction, our analysis begins with the
live pleadings. Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). We
first determine if the pleader has alleged facts that affirmatively demonstrate the
court’s jurisdiction to hear the cause. Tex. Dep’t. of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004). In doing so, we construe the pleadings liberally
in favor of the plaintiff, and unless challenged with evidence, we accept all
allegations as true. Id. at 226–27. We may also consider evidence submitted to
negate the existence of jurisdiction, and we must consider such evidence when
necessary to resolve the jurisdictional issues. Heckman, 369 S.W.3d at 150. We
take as true all evidence favorable to the nonmovant and indulge every reasonable
inference and resolve any doubts in favor of the nonmovant. Miranda, 133 S.W.3d
at 228. The plea must be granted if the plaintiff’s pleadings affirmatively negate
the existence of jurisdiction or if the defendant presents undisputed evidence that
negates the existence of the court’s jurisdiction. Heckman, 369 S.W.3d at 150. If
the evidence creates a fact question about a jurisdictional issue that overlaps the
merits, then a plea to the jurisdiction should not be granted. Miranda, 133 S.W.3d
at 227–28; Gish v. City of Austin, No. 03-14-00017-CV, 2016 WL 2907918, at *1–
2 (Tex. App.—Austin May 11, 2016, no pet.) (mem. op.).
In municipal civil service promotional bypass cases, a police officer may
appeal to the Fire Fighters’ and Police Officers’ Civil Service Commission or to an
independent hearing examiner. See Tex. Loc. Gov’t Code §§ 143.010
(commission), 143.057(a) (hearing examiner). By choosing a hearing examiner,
Williams waived his right to appeal to the judicial system unless the hearing
examiner “was without jurisdiction or exceeded [his] jurisdiction or . . . the order
was procured by fraud, collusion, or other unlawful means.” Id. § 143.057(j); see
5
also Gish, 2016 WL 2907918, at *2. “[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 v. Smith,
292 S.W.3d 14, 21 (Tex. 2009). Hearing examiners have the same duties and
powers as commissions in this type of proceeding. Tex. Loc. Gov’t Code
§ 143.057(f). This includes conducting the hearing fairly and impartially, rendering
a just and fair decision, and considering only the evidence submitted at the hearing.
Id. § 143.010(g); Smith, 292 S.W.3d at 20.
Discussion
Williams makes the following arguments as to why he contends the trial
court had jurisdiction over his appeal of Helburn’s decision regarding the
promotional bypass: (1) Helburn’s order was procured by unlawful means because
the City sent evidence to Helburn prior to the hearing; (2) Helburn exceeded his
jurisdiction by basing his decision on statutory provisions and an administrative
policy that were preempted by the Meet and Confer Agreement; and (3) Helburn
exceeded his jurisdiction by considering information that should have been
expunged. Each of these grounds was mentioned to some degree in Williams’s
petition. If at least a fact question exists on any of these issues, the trial court erred
in granting the plea to the jurisdiction. See Gish, 2016 WL 2907918, at *1–2.
Submission of evidence outside hearing. In his petition, Williams asserted
that an attorney representing the City electronically submitted certain records to
Helburn several days before the hearing and then presented the same records at the
hearing. Williams asserts on appeal that Helburn’s receipt of evidence outside of
the hearing meant that the resulting order was procured by unlawful means. The
City did not directly refute Williams’s allegation with evidence but argues instead
6
that any transmission of evidence before the hearing was meaningless when the
same evidence was offered at the hearing and nothing in Helburn’s opinion or the
record suggests that Helburn actually considered any evidence outside of the
hearing.
As indicated above, a commission or hearing examiner’s “decision [must] be
made on evidence submitted at the hearing.” Smith, 292 S.W.3d at 20.
Accordingly, when the commission or a hearing examiner has considered evidence
obtained outside the hearing, courts have concluded that this resulted in the order
being procured by unlawful means. See, e.g., Gish, 2016 WL 2907918, at *2
(reversing grant of plea to the jurisdiction where hearing examiner considered post-
hearing motion that presented facts that may not have been presented in the
hearing); Steubing v. City of Killeen, 298 S.W.3d 673, 674–75 (Tex. App.—Austin
2009, pet. denied) (explaining that it was uncontested in the appeal that the
commission’s decision was procured by unlawful means where a commissioner
sua sponte considered psychological and empirical studies outside of the hearing in
making his determination); Firemen’s & Policemen’s Civil Serv. Comm’n of City
of Galveston v. Bonds, 666 S.W.2d 242, 244–45 (Tex. App.—Houston [14th Dist.]
1984, writ dism’d w.o.j.) (holding commission ruling was not “free of the taint of
illegality” where commissioner acknowledged he came to hearing with packet of
materials relevant to the case).
Unlike in the cited cases, however, there is no indication in this record that
Helburn considered the documents that were reportedly electronically submitted
before the hearing or even was aware that they had been submitted. Moreover, as
Williams states in his petition, the same documents were then presented at the
hearing.6 Helburn clearly based his decision on evidence presented at the hearing.
6
In his reply brief, Williams suggests that the evidence electronically submitted before
7
See Smith, 292 S.W.3d at 20. Consequently, Williams’s argument regarding the
evidence submitted before the hearing does not create a fact issue regarding
whether Helburn’s decision was procured by unlawful means.
Preemption. Next, Williams complains that Helburn based his opinion, at
least in part, on an Austin Police Department policy and portions of the Local
Government Code that were preempted by the Meet and Confer Agreement.
Williams asserts that in doing so, Helburn exceeded his jurisdiction in the
promotional bypass appeal.
The Meet and Confer Agreement is expressly authorized under chapter 143
of the Local Government Code. Tex. Loc. Gov’t Code §§ 143.306–.307; see also
City of Austin Firefighters’ & Police Officers’ Civil Serv. Comm’n v. Stewart, No.
03-15-00591-CV, 2016 WL 1566772, at *3 (Tex. App.—Austin Apr. 14, 2016,
pet. denied) (mem. op.). As Williams points out, under article 13, section 1(e), the
agreement provides that:
It is expressly understood and agreed that all provisions of this Article
shall preempt any statute, Executive Order, local ordinance, City
policy or rule, which is in conflict with this Agreement and the
procedures developed hereunder, including for example and not by
way of limitation, any contrary provisions of Chapters 141, 142, and
143 of the Texas Local Government Code, including but not limited to
the provisions of Subchapter B of Chapter 143 of the Texas Local
Government Code.7
See generally Tex. Loc. Gov’t Code § 143.307 (providing that meet and confer
agreements preempt any contrary statute, ordinance, rule, or executive order).
the hearing was not then presented at the hearing. He does not cite any support for this
suggestion, however, and it contradicts his own statement in his petition.
7
Article 13 is entitled “Promotions,” section 1 is entitled “Corporal/Detective,” and
subsection (e) is entitled “Preemption.” A similar provision also appears in sections 2 through 4
of article 13, dealing, respectively, with promotions to the ranks of sergeant, lieutenant, and
commander.
8
Williams first argues that Helburn exceeded his jurisdiction by upholding
the promotional bypass of Williams under Austin Police Department Policy 919,
because that policy was preempted by the Meet and Confer Agreement. In keeping
with Local Government Code section 143.036(f), Policy 919 authorizes the Austin
Chief of Police to bypass candidates on a promotional eligibility list for a “valid
reason.” The policy further lists nonexclusive factors that could support a valid
reason determination, including whether the candidate in question had been subject
to disciplinary action. Williams insists that Policy 919 “contravenes” the article 13,
section 1(e) preemption clause and “denied Williams the [Meet and Confer
Agreement’s] procedural due process protections.”
As set forth above, however, the article 13, section 1(e) preemption clause
only preempts policies that are “in conflict” with the agreement and the procedures
developed thereunder. Williams does not identify any specific conflict between the
provisions of Policy 919 and any part of the Meet and Confer Agreement or related
procedures. And we discern no such conflict. Accordingly, this argument is
without merit.
Next, Williams asserts that article 13, section 14 of the Meet and Confer
Agreement is controlling in this situation. That section provides in full as follows:
Section 14. Vacancy Created by Indefinite Suspension
a) Notwithstanding any provision in this Article or any
provision in Local Government Code Chapter 143, an indefinite
suspension of a police officer (despite any pending appeal) shall
create a vacancy, but shall not expand the size of the classified
service. In the event that an indefinite suspension is overturned on
appeal and the officer is reinstated to active duty in the Department,
the person who filled the most recent vacancy at that rank shall be the
one who is demoted to the next lowest classification and placed on a
reinstatement list, with such rights as prescribed in this Article.
b) The same result applies to all other promotions in lower
9
ranks which resulted from the first promotion and subsequent
demotion.
Although his arguments are not entirely clear in regard to this provision, Williams
appears to assert that the promotional bypass violated the provision and was
therefore preempted or that Helburn therefore exceeded his jurisdiction in
upholding the promotional bypass. Neither conclusion is well considered.
The purpose of article 13, section 14 is clear: when an officer is indefinitely
suspended, it creates a vacancy to be filled, but if the suspension is then overturned
on appeal and the suspended officer reinstated, the officer who filled the most
recent vacancy at that rank is then demoted. Williams offers no interpretation of
this provision—and we can imagine none—under which it would have required the
police department to promote him upon his reinstatement. Article 13, section 14
requires reinstatement at the rank the officer was when he was suspended, not
promotion. It neither contemplates nor addresses promotional bypasses or
placement on a promotion eligibility list. Accordingly, this argument is also
without merit.
Lastly under his preemption arguments, Williams asserts that article 13,
section 17 of the Meet and Confer Agreement preempted Local Government Code
section 143.036 in its entirety. As mentioned above, section 143.036(f) authorizes
promotional bypass for a “valid reason.” Article 13, section 17 of the Meet and
Confer Agreement states in full that:
It is expressly understood and agreed that all provisions of this Article
shall preempt any statute, Executive Order, local ordinance, City
policy or rule, which is in conflict with this Agreement and the
procedures developed hereunder, including for example and not by
way of limitation, any contrary provisions of Chapters 141, 142, and
143 of the Texas Local Government Code, including but not limited to
Sections 143.010; 143.014(f); 143.036; 143.072, and all provisions of
10
Subchapter B of Chapter 143 of the Texas Local Government Code.
Contrary to Williams’s representation, this provision does not expressly preempt
the entirety of section 143.036; instead, it preempts the section only to the extent of
conflict between the section and the Meet and Confer Agreement. Once again,
Williams does not cite, and we do not discern, any relevant conflict between
section 143.036 and the terms of the Meet and Confer Agreement. Accordingly,
Williams’s argument is without merit.
Receipt of expunged information. Williams further asserts that Helburn
exceeded his jurisdiction by considering information that should have been
expunged pursuant to a court order under chapter 55 of the Code of Criminal
Procedure.8 Tex. Code Crim. Proc. arts. 55.01-.06; see also Tex. Dep’t of Pub.
Safety v. Nail, 305 S.W.3d 673, 674 (Tex. App.—Austin 2010, no pet.). Williams
complains at length regarding the inclusion of information regarding the H.E.B.
incident—that he contends should have been expunged—in the promotional bypass
memorandum he received from Chief Acevedo. Williams had indeed received an
expunction order relating to the H.E.B. incident before the promotional bypasses
occurred.
Interestingly, in his opinion, Helburn agreed with Williams that Chief
Acevedo’s promotional bypass memorandum contained information that was
subject to the expunction order. Indeed, Helburn stated that: “The lack of attention
to detail and duty on the part of Chief Acevedo . . . is obvious in this instance” and
called the inclusion of the prohibited material “grossly improper.” However,
8
Williams raised this issue in his reply brief. Normally, we do not consider arguments
raised for the first time in a reply brief, but we will do so here in the interest of justice because
this issue concerns jurisdiction and Williams mentioned his concerns regarding the expunged
material in his petition. See generally Collins v. D.R. Horton-Texas Ltd., No. 14-17-00764-CV,
2018 WL 6684270, at *3 (Tex. App.—Houston [14th Dist.] Dec. 20, 2018, no pet. h.).
11
Helburn additionally emphasized that his decision was not based on any
information regarding the H.E.B. incident that should have been expunged. In
regards to consideration of that particular incident, Helburn noted that the fact of
Williams’s policy violations and resulting discipline was not subject to the
expunction order. See, e.g., Gomez v. Tex. Educ. Agency, Educator Certification &
Standards Div., 354 S.W.3d 905, 918 (Tex. App.—Austin 2011, pet. denied)
(explaining that the intent behind the expunction statute was not to eradicate all
evidence of conduct underlying an expunged arrest and holding that the
administrative law judge did not abuse her discretion in permitting testimony
regarding such conduct) (citing Ex parte S.C., 305 S.W.3d 258, 266 (Tex. App.—
Houston [14th Dist.] 2009, no pet.), and Bustamante v. Bexar Cty. Sheriff’s Civil
Serv. Comm’n, 27 S.W.3d 50, 53 (Tex. App.—San Antonio 2000, no pet.)).
Helburn further noted that in his testimony, Acevedo “testified, credibly”
that he considered Williams’s suspension and policy violations in making the
bypass determination. Based on that testimony, Helburn concluded that the
information that was improperly included in the bypass memorandum “cannot be
said to have influenced the decision to bypass” Williams.
What is clear from Helburn’s discussion is that, contrary to Williams’s
assertion, Helburn himself did not consider any information that should have been
expunged in reaching his decision. Williams indeed does not point to any
suggestion in the record that Helburn exceeded his jurisdiction by considering
information that should have been expunged. Helburn clearly and explicitly did not
consider the expunged material and confined his review to nonexpunged
information. See Gomez, 354 S.W.3d at 918. Accordingly, Williams has not
created a fact issue on this ground.
12
Conclusion
As explained above, by choosing a hearing examiner, Williams waived his
right to appeal to the judicial system unless the hearing examiner “was without
jurisdiction or exceeded [his] jurisdiction or . . . the order was procured by fraud,
collusion, or other unlawful means.” See Tex. Loc. Gov’t Code § 143.057(j); Gish,
2016 WL 2907918, at *2. For the foregoing reasons, Williams has failed to show
that at least a fact question existed on any jurisdictional issue. See id. at *1-2.9
Accordingly, we overrule Williams’s three issues challenging the grant of the
City’s plea to the jurisdiction.
We affirm the trial court’s order.
/s/ Frances Bourliot
Justice
Panel consists of Justices Christopher, Jewell, and Bourliot.
9
In his briefing, Williams alleges in several places that Helburn’s order was procured by
fraud, but he does not develop this assertion beyond adding it to the arguments already discussed
above. Consequently, Williams did not create a fact issue pertaining to fraud.
13