Civil litigation takes too long and costs too much. We must declare war on unnecessary court delay at the trial level. Justice delayed is justice denied. Chief Justice John L. Hill Supreme Court of Texas1
I agree with the majority that the commission's failure to issue a formal order in writing within 30 days violates section 16(a). However, I would affirm the summary judgment for Horrocks rather than reverse and dismiss — sending Horrocks back through the judicial system to try his case again under a different label.
In reversing, the majority "conclude[s] that the city's point of error directed to the Civil Service Commission's jurisdiction is dispositive of this case." Yet, there was no point of error questioning the jurisdiction *Page 131 of the Civil Service Commission, but rather the point of error questioned jurisdiction of the district court to hear the appeal. In apparent contradiction, even the majority writes to the issue of the jurisdiction of the district court, not that of the Civil Service Commission.
The majority's understanding of jurisdiction becomes suspect when it states "the district court was powerless to grant affirmative relief to either party on appeal. Its only power was to set aside the Civil Service Commission's oral order and dismiss the appeal".2 In my view the only order that may issue from a court with no jurisdiction is dismissal, and I firmly believe that setting aside the Civil Service Commission's order is, in fact, affirmative relief.
As authority for the majority's thoughts on jurisdiction it cites Los Campeones, Inc. v. Valley InternationalProperties, Inc., 591 S.W.2d 312 (Tex.Civ.App. — Corpus Christi 1979, no writ), and State Ex Rel. Kelley v.Baker, 580 S.W.2d 611 (Tex.Civ.App. — Amarillo 1979, no writ). Both Valley International and Kelly stand for the proposition that an appellate court that does have jurisdiction may set aside the order of a trial court that did not have jurisdiction, and may order the appeal dismissed. In sum, the majority analogizes an order of an appellate court with jurisdiction to an order of a district court without jurisdiction.
Moreover, I disagree with the majority holding that Horrocks'only form of relief is by mandamus. In this era of epidemic litigation that taxes the resources of the judicial system, some deference should be made to judicial economy. I question why the majority chooses to require Horrocks to begin his case anew — by mandamus this time — when a simple affirmance would accomplish the same result? Certainly, no existing precedent compels the majority's conclusion.
The majority relies heavily on Bichsel v. Carver,159 Tex. 393, 321 S.W.2d 284 (1959), which states that "mandamus is a proper remedy in the situation presented." 321 S.W.2d at 287 (emphasis added). However, the "situation presented" in Bichsel does not resemble the situation presented here. In Bichsel, the charges against a suspended police officer were first withdrawn from the Civil Service Commission and later erroneously amended and refiled. While this second appeal was pending before the commission, the officer obtained a writ of mandamus from a district court compelling his reinstatement on the ground that section 16 of the Civil Service Act3 prohibited amendment of the original charges. The supreme court stated that mandamus was proper because the commission had no jurisdiction to uphold the officer's suspension on charges "not legally brought" under the act. 321 S.W.2d at 287. Further, the remedy of mandamus to reinstate an officer in a Bichsel situation is necessary to prevent a second hearing on a void pleading. However, in this case, unlikeBichsel, the charges against Horrocks were properly within the province of the commission. Although the Bichsel opinion does not state that appeal is improper, the majority citesBichsel in support of that proposition.
Article 1269m, section 18 provides for the appeal of final commission decisions to district court. A decision is final when nothing is left open for disposition. City of Houstonv. Turner, 355 S.W.2d 263, 264 (Tex.Civ.App. — Houston [14th Dist.] 1962, no writ); Allen v. Crane, 257 S.W.2d 357, 358 (Tex.Civ.App. — San Antonio 1953, writ ref'd n.r.e.). In the present case, the commission's order left nothing open for disposition; therefore it was a "final" decision even though it was not reduced to writing *Page 132 within thirty days. Thus, jurisdiction of an appeal was in the district court. Turner, 355 S.W.2d at 264. Moreover, if another remedy is available — as is an appeal in this case — the extraordinary remedy of mandamus is inappropriate. See Iley v.Hughes 158 Tex. 362, 311 S.W.2d 648, 652 (1958).
There is a presumption that the district court has jurisdiction over those matters it decides. Burton v.McGuire, 3 S.W.2d 576, 580 (Tex.Civ.App. — Beaumont 1928), aff'd, 41 S.W.2d 238 (Tex.Comm'n App. 1931, holding approved). Further, the jurisdiction of a district court may be reviewed by a reviewing court on its own motion.Haskett v. Harris, 567 S.W.2d 841, 843 (Tex.Civ.App. — Corpus Christi 1978, no writ). Therefore, I conclude that the failure of the district court or the appellate court to question an appeal from the commission to the district court is tacit approval of that procedure. Issues that are like or similar to the issues in this case have been decided on appeal rather than by writ of mandamus. See Skates v. City ofParis, 363 S.W.2d 425 (Tex. 1963) (commission's order was void because it did not contain specific findings) City ofTexarkana v. Fincher, 657 S.W.2d 842 (Tex.App. — Texarkana 1983, writ ref'd n.r.e.) (commission did not render a decision in writing within 30 days); City of San Antonio'sFiremen's and Policemen's Civil Service Commission v.Villanueva, 630 S.W.2d 661 (Tex.App. — San Antonio 1981, writ ref'd n.r.e.) (failure of city to comply with notice provisions rendered void the commission's order);Todd v. City of Houston, 508 S.W.2d 140, 142 (Tex.Civ.App. — Houston [1st Dist.] 1974, writ ref'd n.r.e.) (commission failed to reduce its findings to writing within 30 days).
In the recently published opinion, Patton v. City ofGrand Prairie, 686 S.W.2d 108 (Tex. 1985), rev'g675 S.W.2d 794 (Tex.App. — Dallas 1984), a companion to this case,4 the Texas Supreme Court stated in broad but specific terms the rule regarding a suspended officer's right to appeal to district court: "Any decision of a city's civil service commission concerning a suspension is now appealable to the district court. . . ." and "[A]ny suspension, indefinite or temporary, which gives rise to a hearing before the civil service commission, entitles the affected officer to appeal the commission order to a district court." Patton, at 110. Nevertheless, in spite of the language of Patton, and the cases cited above that were decided by appeal, the majority has abolished Horrocks' right to appeal and holds instead that the extraordinary remedy of mandamus is the only remedy available to Horrocks.
I would hold that the district court had jurisdiction of the de novo appeal and properly granted Horrocks' summary judgment reinstating him with back pay. Accordingly, I would affirm the trial court.