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Click here for the full text of this decision FACTS:In 1999, Houston Fire Department Assistant Chief Chris Connealy, while serving as acting fire chief, temporarily suspended Donald Clark, a member of the Houston Fire Department, for failing to follow the fire department’s regulations. Clark appealed his suspension to a hearing examiner. In his decision, the hearing examiner ruled that just cause existed for Clark’s suspension. The hearing examiner also determined that only the appointed fire chief, not the acting fire chief, had authority to temporarily suspend Clark. Consequently, the hearing examiner granted Clark’s motion to dismiss the charges, because he concluded the acting fire chief had no authority to issue the suspension. The city of Houston appealed the hearing examiner’s decision to the district court, and the city also sought a declaratory judgment that an acting fire chief has the authority to suspend members of the fire department. The district court granted summary judgment for Clark based on collateral estoppel. However, the 1st Court of Appeals reversed and remanded the case to the district court. On remand, Clark filed another motion for summary judgment, and the city filed a cross-motion for summary judgment. The district court denied the city’s motion and granted Clark’s motion. In its judgment, the district court rendered a declaratory judgment that: 1. the term “department head,” contained in Texas Local Government Code �143.117, does not include an acting fire chief who was not appointed by the mayor or confirmed by the city council; 2. an assistant fire chief temporarily appointed by the fire chief to serve as acting fire chief is not empowered with the authority to suspend fire department members; and 3. Connealy did not have the authority to suspend Clark. In its final order, the district court rejected the city’s appeal from the hearing examiner’s decision. The city appealed the district court’s judgment. The 14th Court of Appeals dismissed the appeal for lack of subject matter jurisdiction, holding that, under the applicable statutes, the city had no right to appeal the hearing examiner’s decision and that the district court’s declaratory judgment was an advisory opinion. The city sought review by the Texas Supreme Court. Without addressing the 14th Court’s decision regarding the district court’s declaratory judgment, the Texas Supreme Court concluded that the city did have the right to appeal, reversed the 14th Court’s judgment and remanded for consideration of the party’s appellate arguments. HOLDING:On remand, the 14th Court vacated and dismissed in part, affirmed in part. Under �143.1016(c), a hearing examiner’s decision is final and binding on all parties. Section 143.1016(j) permits a district court to hear an appeal of a hearing examiner’s award. However, such an appeal is limited to three grounds: 1. the hearing examiner lacked jurisdiction; 2. the hearing examiner exceeded his jurisdiction; or 3. the hearing examiner’s decision was procured by fraud, collusion or other unlawful means. The trial court made declarations on the merits of the issue of whether Connealy had authority to fire Clark. The city challenged those declarations in its appeal in the 14th Court. The 14th Court, however, found that the district court lacked jurisdiction to make the declarations, because the hearing examiner ruled on this issue in his decision, and by statute, the district court cannot review the merits of this decision but only the three non-merits issues listed in �143.1016(j). Thus, the 14th Court stated, although a case or controversy exists regarding the issue of Connealy’s authority to fire Clark, �143.1016 deprives the district court of jurisdiction to make a declaration regarding this issue. Because the district court lacked jurisdiction, the 14th Court lacked jurisdiction over the city’s appeal from the district court’s declaratory judgment; therefore, as to that part of the district court’s judgment, the court vacated the judgment and dismissed the city’s appeal. Next, the city contended that the district court erred by rejecting the city’s contention that the hearing examiner exceeded his jurisdiction based on his lack of jurisdiction to rule on the authority issue, because the issue was not stated as a ground in Clark’s notice of appeal to the hearing examiner. But the 14th Court did not agree with the city’s position. In conducting a hearing in an appeal of a suspension, a hearing examiner has the same powers as the Fire Fighters’ and Police Officers’ Civil Service Commission, the court stated. Therefore, the court concluded that a hearing examiner has the authority to interpret statutory provisions and make decisions based on its interpretations. For this reason, the court stated, the hearing examiner did not exceed his jurisdiction by deciding the authority issue based on his interpretation of the statutes at issue. In addition, a hearing examiner may reverse a suspension and order that the firefighter or police officer be restored to his prior position with back pay. Thus, the court stated, the hearing examiner’s determinations and rulings were not made without jurisdiction or in excess of jurisdiction. Accordingly, the court found that the district court did not err in rejecting the city’s appeal. OPINION:Frost, J.; Frost and Guzman, JJ. CONCURRENCE:Edelman, J. “There is, thus, no live controversy between the City and Clark regarding his suspension outside of that appeal, and the declaratory judgment rendered by the district court in Clark’s favor is purely advisory. It is for this reason, rather than that relied upon in the Majority opinion, that neither this court nor the district court has jurisdiction to decide any of the declaratory judgment claims, and those claims should be dismissed.”

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