DSABC. 4th Court of Appeals ruling on claims vs. DPS, work permits litigation
We received the ruling of the 4th Court of Appeals today, a short while ago. They reversed the district court. They held that the court does not have jurisdiction over our claims against the DPS, on the grounds that our lawsuit against the DPS is not ripe, because the DPS has taken no action to jeopardize work permits. A copy of the opinion is attached.
TO: LT Avery Walker, President, DSABC
RE: 4th Court of Appeals ruling on claims vs. DPS, work permits litigation
I do not agree with the decision. In my view the court overlooks the point that a construction of the statute is needed and that the DPS is the proper party to sue for a declaratory judgment on the proper construction of the statute, since the DPS is the primary agency that administers the statute. In my opinion our lawsuit against the County and the Sheriff raises the issue of the proper construction of the statute and thus it is ripe to bring the DPS in for declaratory judgment on the proper interpretation of the statute.
Nevertheless, the 4th Court’s ruling is now in hand and it is what it is. Though I do not agree, at the same time the Court’s opinion does contain an important holding on an issue of law pertaining to the Occupations Code.
The following passage from the 4th Court of Appeals’ opinion is very important and I think the key to their decision:
“While the Association relies heavily on Sheriff Lopez’ letter stating the officers do not work on average 32 hours a week, and therefore do not qualify for an exception, the Department is not necessarily bound by the Sheriff’s determination of the facts. … As a result, there is no way to predict what determination, if any, the Department will reach. Consequently, the relief that the Association seeks, at this point, would be based on hypothetical or contingent events that may not occur.”
This is literally the first ruling by an authoritative Texas court on the proper construction of the 32-hour peace officer issue. Consider the significance of the Court’s ruling. Even if the Sheriff were to claim that the officers do not work at least 32 hours per week as peace officers, to repeat the Court’s words: “the Department is not necessarily bound by the Sheriff’s determination of the facts.” This ruling is not merely dicta (i.e., extraneous to the Court’s decision). This ruling is the very basis of the Court’s decision. It is the reason they find the lawsuit against the DPS not to be ripe for judicial consideration.
Another way to put this is that the 4th Court of Appeals has rejected the Attorney General’s suggestion in the Tom Green County AG opinion to the effect that the factual determination of the Sheriff is controlling on whether or not the officers in question are working an average of at least 32 hours per week as peace officers.
Deputy Sheriffs Association of Bexar County
816 Camaron St
San Antonio, TX 78212
Memo from Attorney David Van Os