Texas Attorney General Opinion: LO92-017 Page: 2 of 10
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Honorable Alvin Roy Granoff - Page 2 (LO-92-17)
An appeal must be brought in the district court having
jurisdiction in the municipality in which the fire or police
department is located. [Footnote added.]
Id. 143.057(j).3
You ask whether, in an appeal to a district court brought pursuant to
subsection (j) of section 143.057, it is proper or necessary to name the third party
hearing examiner as a party defendant. In the event the answer to the first question
is "no," you ask whether a party to an appeal may subpoena the hearing examiner to
testify or provide other evidence concerning the award.4 In the absence of explicit
statutory guidance, we believe a court would conclude that while an independent
third party hearing examiner is not a "necessary" defendants in a subsection (j)
appeal, a hearing examiner may be joined in a proper case as a defendant. We also
believe a court would, by analogy to the common-law rule governing testimony by
arbitrators, conclude that a hearing examiner may, under appropriate circumstances,
be required to testify in such appeals.
An appeal of an employment action under section 143.057 exhibits
characteristics of both administrative hearings and arbitration proceedings. A
hearing before a civil service commission is an administrative proceeding of a quasi-
judicial character. See generally Connor v. Klevenhagen, 726 S.W.2d 205 (Tex. App.--
Houston [14th Dist] 1987, writ ref'd n.r.e.); Vick v. City of Waco, 614 S.W.2d 861
(Tex. App.--Waco 1981, writ refd n.r.e.). But unlike ordinary administrative or civil
service hearings, the decisionmaker in a section 143.057 proceeding is not
3A special provision authorizes appeals to hearing examiners in cities with a population of 1.5
million or more. Local Gov't Code 143.1016. The special provision imposes slightly different
procedural requirements and filing deadlines than section 143.057. You ask only about hearing
examiner proceedings in cities with less than 1.5 million inhabitants.
4We understand that your questions are prompted by the recent practices of some cities to
appeal hearing examiner awards by naming the hearing examiner as the defendant in the appeal and to
subpoena hearing examiners to testify in such appeals. We are advised that these practices have led
arbitrators in some communities to decline appointment as a hearing examiner, thus limiting to some
degree the availability of this option to fire fighters and police officers in the affected communities.
5A "necessary" defendant is one whose presence is necessary in order to afford the plaintiff
complete relief to which it is entitled against other defendants. Sabine Prod. Co. v. Frost Nat'l Bank of
San Antonio, 596 S.W.2d 271 (Tex. Civ. App.--Corpus Christi 1980, writ dism'd).
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Texas. Attorney-General's Office. Texas Attorney General Opinion: LO92-017, text, June 26, 1992; (https://texashistory.unt.edu/ark:/67531/metapth276346/m1/2/: accessed August 15, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.