Helping Trial Lawyers Navigate the Appellate System

Third Court of Appeals Invalidates City’s Civil-Service Appeal Deadline

[vc_row type=”in_container” full_screen_row_position=”middle” column_margin=”default” scene_position=”center” text_color=”dark” text_align=”left” overlay_strength=”0.3″ shape_divider_position=”bottom” bg_image_animation=”none”][vc_column column_padding=”no-extra-padding” column_padding_position=”all” background_color_opacity=”1″ background_hover_color_opacity=”1″ column_link_target=”_self” column_shadow=”none” column_border_radius=”none” width=”1/1″ tablet_width_inherit=”default” tablet_text_alignment=”default” phone_text_alignment=”default” overlay_strength=”0.3″ column_border_width=”none” column_border_style=”solid” bg_image_animation=”none”][vc_column_text]The Third Court of Appeals has reversed a summary judgment granted to the City of Killeen on the sole ground that a police officer’s administrative appeal to the City’s Civil Service Commission was untimely.

After receiving notice of an indefinite suspension, Officer Robin Talley filed an administrative appeal, which the City denied without reaching the merits. Talley brought suit to have the appeal declared timely, and both parties moved for summary judgment. The City relied on its Civil Service Rules, which required an officer filing an appeal to so so within 240 hours after receiving notice. The trial court granted the city’s motion and denied Talley’s cross-motion seeking to declare the appeal timely under Section 143.010(a) of the Local Government Code, which sets a ten-day filing deadline.

Talley’s trial counsel retained Smith Law Group, P.C. to pursue an appeal. With amicus support from the Texas Municipal Police Association, D. Todd Smith persuaded the appellate court that the City’s rule was inconsistent with Section 143.010(a), which would expire at midnight on the tenth day rather than 240 hours after notice. The appellate court held that, because the Government Code trumped the City’s Civil Service Rule under the Texas Constitution, the “inconsistent language [in the Civil Service Rule] is of no force and effect.” As a result, the Court held that Officer Talley’s appeal was timely as a matter of law and rendered judgment in her favor.

Justice Scott Field authored the Third Court’s opinion and was joined by Justice Bob Pemberton. Justice Melissa Goodwin dissented without opinion. The Texas Supreme Court denied the City’s petition for review.

Talley v. City of Killeen, 418 S.W.3d 205 (Tex. App.—Austin 2013, pet. denied)[/vc_column_text][/vc_column][/vc_row]

D. Todd Smith
About the Author

D. Todd Smith is an Austin-based civil appellate specialist who works with trial teams from the earliest stages of litigation. In trial courts, he takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

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