Wilson v. Andrews

¶1concurring.

¶2I concur in the Court’s opinion except for its conclusion that respondents do not argue that article XI, section 5 of the Texas Constitution precludes the Legislature from delegating the authority to hear civil' service appeals to a private entity as it has done in section 143.057(d) of the Texas Local Government Code. This argument is different from another argument respondents make, and which we addressed in Proctor v. Andrews, that article III, section 1 of the Texas Constitution precludes the Legislature from delegating the authority to a private entity to determine who can be a neutral arbitrator in *672hearing such appeals.1 In Proctor we rejected the latter argument2 and did not address the former argument.3

¶3The Court concludes that respondents did not raise their nondelegation argument regarding the authority to decide appeals in the court of appeals, but that is simply incorrect. Respondents argue that to delegate the authority to decide appeals is to delegate an important element of a city’s authority to discipline, suspend, or discharge police officers. Respondents stated in their brief:

It has long been settled by numerous cases that the city’s governmental functions, such as the exercise of its police power, must remain under the control of the city and such functions cannot be transferred or ceded to another entity (either voluntarily or involuntarily) absent specific constitutional provision.

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The City submits that § 143.057 ... is an invalid and unconstitutional interference with the City’s constitutional rights, powers and duties under the home-rule provisions of the Texas Constitution which prohibit the delegation to a third power of the City’s governmental powers, which include its duty and authority to discipline, suspend or discharge its police officers.

¶4The court of appeals discussed this argument at length and concluded that the statutory delegation was improper.4

¶5The court of appeals assumed the premise of respondents’ argument, that requiring a city to arbitrate civil service appeals at a police officer’s election was a delegation of the city’s supervisory authority over the police and then applied the factors set out in Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen5 for reviewing, under article III, section 1 of the Texas Constitution, a delegation of governmental authority to a private entity. Apart from the issue whether the analysis would be the same under article XI, section 5, as under article III, section 1, I do not agree that the arbitration requirement is a delegation of power constitutionally committed to a city. The city’s argument would be the same if the officer appealed to a court under section 143.057©: that is, that the city’s authority to supervise its police officer cannot be delegated to the district court. The validity of the argument rests on the incorrect notion that requiring a city to arbitrate or litigate its disputes with officers before an arbitration panel or a court is an unconstitutional delegation of the city’s police powers to the panel or court. Article XI, section 5 does not make a city the judge of its own cause.

¶6The Court should address respondents’ argument, as several amici curiae here urge. The argument was before the court of appeals and has been urged in this Court. I agree with the Court, however, that we should not address the argument that could be made, that section 143.057’s delegation of authority to decide appeals violates article III, section 1 of the Texas Constitution, on the briefs we have before us.

¶7With this caveat, I concur in the rest of the Court’s opinion.