City of Houston v. Clark, 197 S.W.3d 314 (Tex. 2006)

The City of Houston vs. Donald Clark, No. 04-0930 (Tex. Jun. 16, 2006)(O'Neill) ═══════════════════════════════════ On Petition for Review from the Court of Appeals for the Fourteenth District of Texas ═══════════════════════════════════ Justice O’Neill delivered the opinion of the Court. In this case, we must decide whether Chapter 143 of the Local Government Code, known as the Fire Fighter and Police Officer Civil Service Act, authorizes municipalities to appeal adverse decisions of independent hearing examiners. We hold that it does. Accordingly, we reverse the court of appeals’ judgment of dismissal and remand the case to that court for consideration of the City of Houston’s appeal. I. Background Donald Clark, a senior fire alarm dispatcher for the Houston Fire Department, was suspended for fifteen days without pay for violating basic dispatch protocols. His error caused unnecessary delay in dispatching an emergency vehicle in response to the shooting of a Houston police officer. At the time Clark’s suspension was imposed, Houston Fire Chief Lester Tyra was himself serving a seven-day suspension because of an investigation into Clark’s placement at the emergency dispatch center. As a result, Clark’s suspension was handed down by the acting fire chief. Clark elected to appeal his suspension to an independent hearing examiner, as was his right under the Local Government Code. See Tex. Loc. Gov’t Code § 143.1016(a). At the parties’ request, the independent hearing examiner simultaneously considered the merits of Clark’s appeal and his motion to dismiss, which asserted that the Code only authorized the fire chief, not the acting fire chief, to suspend fire department personnel. The independent hearing examiner denied Clark’s appeal on the merits, finding that the fire department’s decision to suspend him was justified. But the examiner granted Clark’s motion to dismiss,[1] concluding that Section 143.117(a) of the Code empowered only the fire chief to temporarily suspend fire department personnel.[2] The City appealed the independent hearing examiner’s decision to the district court, asserting that the examiner had exceeded his jurisdiction and incorrectly applied the law in granting Clark’s motion to dismiss. It also sought a declaratory judgment that an acting fire chief may issue a temporary suspension under Chapter 143 of the Code. Clark filed a summary-judgment motion arguing that the district court’s decision in another case, City of Houston v. Rivera, No. 90-045333 (190th Dist. Ct., Harris County, Tex. Feb. 12, 1992), collaterally estopped the City from asserting that an acting fire chief has the authority to suspend a fire fighter. The City filed a cross-motion for summary judgment asserting seven grounds in support.[3] The trial court granted Clark’s summary-judgment motion and denied the City’s. The court of appeals, finding the factual differences between the circumstances of this case and Rivera sufficient to prevent collateral estoppel from barring the City’s claim, reversed the trial court’s judgment and remanded the case for further review. City of Houston v. Clark, No. 01-01-00828-CV, 2002 Tex. App. LEXIS 8854, at *9-10 (Tex. App. —Houston [1st Dist.] Dec. 12, 2002, no pet.). On remand, the trial court again granted summary judgment in Clark’s favor, this time noting that the reference to “department head” in Section 143.117(a) did not include an acting fire chief who was neither appointed by the Mayor nor confirmed by the City Council, and therefore, the acting fire chief was not empowered to suspend members of the fire department. The trial court’s order reversed Clark’s suspension and reinstated his wages and lost time. The City appealed the trial court’s decision, but the court of appeals dismissed the appeal for want of jurisdiction, holding that Section 143.1016(j) of the Code did not afford the City a right to appeal an independent hearing examiner’s decision. 142 S.W.2d at 353-54. The court of appeals concluded that the absence of an explicit reference to a municipality’s right to appeal a hearing examiner’s decision, contrasted with numerous references throughout Chapter 143 to the appellate rights of fire fighters and police officers, could only mean that “no such right or procedures were intended or exist.” 142 S.W.3d at 353; 354, n.3. The court of appeals expressly disagreed with other Texas appellate decisions holding that cities could appeal an adverse independent hearing examiner’s decision under Chapter 143. Compare id., with City of Garland v. Byrd, 97 S.W.3d 601, 607-08 (Tex. App.–Dallas 2002, pet. denied) (holding that there are no limitations on who may appeal a hearing examiner’s decision); Nuchia v. Woodruff, 956 S.W.2d 612, 616-18 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (holding that the city had a right to judicial review under the Declaratory Judgment Act to determine if a hearing examiner exceeded his authority, but not reaching whether there was a right to an appeal under Section 143.1016(j)); Nuchia v. Tippy, 973 S.W.2d 782, 786 (Tex. App.—Tyler 1998, no pet.) (holding that a municipality may appeal an independent hearing examiner’s decision to a trial court under Section 143.1016(j)); City of San Antonio v. Longoria, No. 04-04-00063-CV, 2004 WL 2098074 (Tex. App.—San Antonio Sept. 22, 2004, no pet.) (mem. op.) (reaching the merits of an appeal by the City of a hearing examiner’s decision); but see City of Waco v. Kelley, ___ S.W.3d ___, ___ (Tex. App.—Waco 2004) (holding that the City of Waco had no right to appeal an independent hearing examiner’s decision), rev’d, ___ S.W.3d ___ (Tex. 2006) (per curiam). We granted the City’s petition for review to resolve this split of authority over municipalities’ appellate rights under Section 143.1016(j) of the Local Government Code.[4] II. The Parties’ Arguments The City contends the court of appeals erred in foreclosing any recourse by cities to appeal an independent hearing examiner’s decision in district court. The City asserts that the decision leaves it without any remedy, even if the examiner’s decision is arbitrary or capricious, or if such a decision is procured unlawfully or by fraud. According to the City, construing the statutory scheme to foreclose any right of appeal would indicate an unconstitutional delegation of legislative authority. See, e.g., Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 472 (Tex. 1997) (designating eight factors to consider in determining whether a delegation of legislative power is constitutional, including whether a private examiner’s decision is subject to meaningful review); see also Proctor v. Andrews, 972 S.W.2d 729, 735 (Tex. 1998) (holding that the Legislature can delegate authority to private entities if there is protection against the arbitrary exercise of power). The City further claims the hearing examiner in this case exceeded his jurisdiction by, in effect, issuing a declaratory judgment that an acting fire chief must be appointed by the Mayor and confirmed by the City Council in order to suspend fire department personnel under Section 143.117 of the Code. Clark responds that the City has no right to appeal an independent hearing examiner’s decision under Section 143.1016(j). Clark notes that while cities might have recourse to district court to vindicate constitutional rights, the City raises no such rights in this case. Alternatively, Clark argues that, even if the City is determined to have a right to appeal under Section 143.1016(j), such an appeal is limited to the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion or other unlawful means. See Tex. Loc. Gov’t Code § 143.1016(j). Clark contends the City’s challenge to the examiner’s decision in this case implicates none of these narrow grounds. III. Discussion Section 143.1016 of the Local Government Code establishes procedures governing the review of certain disciplinary actions against fire fighters and police officers. See Tex. Loc. Gov’t Code § 143.1016. That provision affords an aggrieved officer the choice of appealing an adverse disciplinary action to an independent third party hearing examiner rather than to the Fire Fighters’ and Police Officers’ Civil Service Commission. Id. § 143.1016(a). In exchange, the aggrieved officer accepts a significantly circumscribed right to appeal the examiner’s decision, as described in Section 143.1016(c): The hearing examiner’s decision is final and binding on all parties. If the fire fighter or police officer decides to appeal to an independent third party hearing examiner, the person automatically waives all rights to appeal to a district court except as provided by subsection (j). Id. § 143.1016(c). Subsection (j) states in pertinent part: A district court may hear an appeal of a hearing examiner’s award only on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. Id. § 143.1016(j).[5] In this case, we must decide whether Section 143.1016(j) affords the City a right of appeal from an independent hearing examiner’s decision, or whether the Legislature intended the limited appeal in subjection (j) to apply exclusively to fire fighters and police officers. A In interpreting Section 143.1016(j), our primary objective is to ascertain and give effect to the Legislature’s intent. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). In discerning that intent, we begin with the “‘plain and common meaning of the statute’s words.’“ Id. (quoting State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002)). Words and phrases are to be read in context and, in construing a statute, we may consider the consequences of a particular construction. Tex. Gov’t Code §§ 311.011, 311.023(5). Section 143.1016(j), by its own terms, does not allocate the right to appeal an independent hearing examiner’s decision to any particular party, although it does expressly restrict the scope of that appeal. This general right is in stark contrast to other portions of the Code, which explicitly afford appellate rights only to fire fighters and police officers. See Tex. Loc. Gov’t Code §§ 143.010(a) (“[I]f a fire fighter or police officer wants to appeal to the commission . . . , the fire fighter or police officer need only file an appeal with the commission . . . .”); 143.015(a) (“If a fire fighter or police officer is dissatisfied with any commission decision, the fire fighter or police officer may file a petition in district court asking that the decision be set aside.”); 143.034(a) (allowing promotional candidates from the fire or police department to appeal to the commission if they are dissatisfied with the review of their examination); 143.053(b) (allowing a suspended fire fighter or police officer to appeal a suspension to the Commission); see also id. §§ 143.1015(a); 143.1016(c); 143.117(e); 143.120(a). In the context of the entire Code, we believe this distinction is meaningful. See PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P’ship, 146 S.W.3d 79, 84 (Tex. 2004) (“When the Legislature includes a right or remedy in one part of a code but omits it in another, that may be precisely what the Legislature intended” and “we must honor that difference”). Throughout Chapter 143, fire fighters and police officers are uniformly granted the right to appeal adverse recommendations, proposed solutions or decisions when the decisionmaker is the Commission or a Commission appointee. See City of Houston v. Jackson, ___ S.W.3d ___, ___ (Tex. 2006) (discussing the various appeals tracks afforded aggrieved officers under the grievance procedure codified in Sections 143.127-143.134). In those instances, the decisionmakers are closely aligned with the municipalities that have chosen to be governed by Chapter 143 of the Code. See, e.g., Tex. Loc. Gov’t Code ' 143.006(b) (explaining that the Commission consists of three members appointed by the municipality’s chief executive and confirmed by the governing body of the municipality). The allocation of appellate rights only to aggrieved officers in such situations acknowledges this implicit alignment. However, an appeal from an independent hearing examiner’s award differs categorically from the appeal of a decision made by the fire or police department, a Commission-appointed grievance examiner, or the Commission itself. Selected only after the aggrieved officer’s and the department head’s mutual agreement,[6] an independent hearing examiner has no implicit Commission alignment. Id. § 143.1016(d). Consequently, there would be no apparent reason for the Legislature to foreclose a right of appeal to either party. We believe the general language the Legislature chose to describe the right of appeal under Section 143.1016(j) was deliberate and not intended to foreclose a municipality’s appellate rights. Clark contends that, had the Legislature intended to authorize the City to appeal an independent hearing examiner’s decision, it would have expressly provided for such a right. Of course, the flip side is also true; the Legislature could have as easily expressly limited appellate rights under Section 143.1016(j) solely to aggrieved officers, as it did many times throughout other sections of the Code. Instead, Section 143.1016(j) states generally that “[a] district court may hear an appeal of a hearing examiner’s award,” specifically foreclosing the right to neither party. Id. § 143.1016(j) (emphasis added). Clark next argues that Section 143.1016(j) does not create a right to appeal, but merely defines the contours of the right established in Section 143.1016(c). In essence, Clark suggests that the portions of Section 143.1016(c) informing fire fighters and police officers of their limited right of review on appeal would be rendered surplusage if all parties before a hearing examiner were provided the same right to appeal under Section 143.1016(j). We disagree. The specific reference to fire fighters and police officers in Section 143.1016(c) is best understood when viewing the Code in its entirety, as we must. See, e.g., Fleming Foods of Tex. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). The Legislature’s apparent purpose in Section 143.1016(c) was to ensure that fire fighters and police officers are fully aware of a significant consequence that will result if they elect to have an independent hearing examiner, rather than the Commission, hear their appeal.[7] Appeals from an independent hearing examiner’s decision are severely circumscribed, while appeals from a Commission decision to district court are reviewed de novo. Id. § 143.015(a)-(b). Since at this early stage it is up to the aggrieved officer which course to pursue, the legislative warning is understandable. Section 143.1016(c) merely reinforces the notion that aggrieved officers should proceed with caution when considering their various appeal options. We also note that, while affording police officers and fire fighters a unilateral right of review makes sense when appeal is from the decisions of Commission appointees or the Commission itself, see, e.g., Tex. Loc. Gov’t Code § 143.006(b), Clark has offered no reason why the Legislature would grant only a unilateral right to appeal a decision made by an independent hearing examiner who is not appointed by or affiliated with the municipality. Clark points to the fact that police officers and fire fighters give up de novo district court review when they choose to proceed before an independent hearing examiner, but that appeals route is equally foreclosed to the Commission once the grievant’s selection of an independent hearing examiner has been made. As we have said, “[t]he Legislature can . . . delegate authority to private entities ‘if the legislative purpose is discernible and there is protection against the arbitrary exercise of power.’“ Proctor, 972 S.W.2d at 735 (quoting Office of Pub. Ins. Counsel v. Tex. Auto. Ins. Plan, 860 S.W.2d 231, 237 (Tex. App.—Austin 1993, writ denied). Under Clark’s interpretation, cities could be hamstrung by an independent hearing examiner’s arbitrary or even fraudulent decision without recourse. We cannot see how the public interest is served by such a result. See Tex. Gov’t Code ' 311.021 (“In enacting a statute, it is presumed that . . . a just and reasonable result is intended . . . and public interest is favored over any private interest.”). In addition, interpreting Section 143.1016(j) to foreclose municipalities’ appellate rights could well render the Legislature’s delegation of authority to independent hearing examiners constitutionally suspect. See Texas Boll Weevil Eradication Found., 952 S.W.2d at 472. When faced with multiple constructions of a statute, we must interpret the statutory language in a manner that renders it constitutional if it is possible to do so; “[s]tatutes are given a construction consistent with constitutional requirements, when possible, because the legislature is presumed to have intended compliance with [the constitution].” Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex. 1990); see also Tex. Gov’t Code § 311.021 (stating “[i]n enacting a statute, it is presumed that: (1) compliance with the constitutions of this state and the United States is intended”). Our interpretation of the statutory language is based on its plain language and context, and further avoids a constitutionally suspect construction. Our holding also finds support in the historical roots of the hearing examiner provisions currently codified in the Local Government Code, to which we now turn. B Section 143.1016 was added to the Local Government Code in 1989, just two years after the Code was created as a result of the Legislature’s directive to reclassify and rearrange Texas’ statutes in a more logical order.[8] Section 143.1016, which incorporates a hearing examiner provision specifically for municipalities with a population of 1.5 million or more, was based on the language of Section 143.057, the hearing examiner provision applicable to all municipalities governed by Chapter 143 of the Code.[9] The Bill Analysis from the legislation enacting Section 143.1016 explains that the bill “[a]mends Chapter 143, Local Government Code, by adding Section 143.1016. This section duplicates Sec. 143.057 except as described as follows.” Sen. Comm. on Urban Affairs, Bill Analysis, Tex. S.B. 688, 71st Leg., R.S. (1989). The “as follows” describes certain differences between Sections 143.057 and 143.1016, but none relate to the provisions affecting appeals from an independent hearing examiner’s decision. In fact, the appeals provisions in Sections 143.1016(c) and (j) are identical to those found in Sections 143.057(c) and (j). Therefore, it seems likely that the Legislature intended to provide the City of Houston the same right to appeal an independent hearing examiner’s decision under Sections 143.1016(c) and (j) as that provided other municipalities under Sections 143.057(c) and (j). That being the case, the historical development of the hearing examiner provision codified in Section 143.057 informs our analysis of municipalities’ right to appeal an adverse independent hearing examiner’s decision under Section 143.1016(j). See Tex. Gov’t Code ' 311.023(4) (“In construing a statute . . . a court may consider . . . former statutory provisions, including laws on the same or similar subjects.”). The history of independent hearing examiners in the section of Texas’ civil statutes governing cities, towns and villages can be traced to a 1983 amendment to article 1269m, which created the following sections: Sec. 16c. HEARING EXAMINERS. (a) In a city having a population of less than 1,500,000 according to the most recent federal census, in an appeal of an indefinite suspension, a suspension, a promotional passover, or a recommended demotion, the appealing employee may elect to appeal to an independent third party hearing examiner instead of to the commission. To exercise this choice, the appealing employee must submit a letter to the director stating his decision to appeal to an independent third party hearing examiner. (b) The decision of the hearing examiner is final and binding on all parties. If the employee decides to appeal to an independent third party hearing examiner, the employee automatically waives all rights to appeal to district court. . . . (f) A state district court may hear appeals of an award of a hearing examiner only on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. An appeal must be brought in the state district court having jurisdiction in the municipality in which the department is located. Act of May 30, 68th Leg., R.S., ch. 420, § 9, 1983 Tex. Gen. Laws 2246, 2265-67 (emphasis added). The 1983 legislation added new Section 16c to apply to all civil service cities of less than 1,500,000. House Comm. on Urban Affairs, Bill Analysis, Tex. H.B. 1015, 68th Leg., R.S. (1983). The Bill Analysis explains that Section 16c provides for “the use of independent third-party hearing examiners instead of the Commission[. I]f the appealing employee elects to use the [hearing] examiner he waives all right to appeal to District Court.” Id. at page 3. Therefore, after 1983, an employee could choose an independent hearing examiner to hear an appeal of a disciplinary suspension, but was required to waive all rights to appeal the examiner’s decision to the district court. And yet, Section 16c(f) unambiguously envisions a limited appeal of the examiner’s decision to state district court. In light of the wholesale prohibition of employee appeal rights, the limited appellate right referenced in 16c(f) could only have referred to that of the municipality. In 1985, the Legislature amended Section 16c in two separate bills. The first amendment expanded the use of independent hearing examiners to City of Houston employees by eliminating the provision’s restriction to those cities with a population of less than 1.5 million: (a) In a city in this state that has adopted this Act [having a population of less than 1,500,000 according to the most recent federal census], in an appeal of an indefinite suspension, a suspension, a promotional passover, or a recommended demotion, the appealing employee may elect to appeal to an independent third party hearing examiner instead of to the commission. To exercise this choice, the appealing employee must submit a letter to the director stating his decision to appeal to an independent third party hearing examiner. Act of May 27, 1985, 69th Leg., R.S., ch. 958, § 7, 1985 Tex. Gen. Laws, 3227, 3231 (emphasis in original). The Bill Analysis describes the change to Section 16c(a) as: “Amends Section 16(c) of [article] 1269m by adding cities of 1,500,000 or more to those who may elect to appeal to a hearing examiner.” Sen. Comm. on Urban Affairs, Bill Analysis, Tex. S.B. 540, 69th Leg., R.S. (1985). With this amendment, the right to have an independent hearing examiner hear the appeal of a disciplinary suspension was extended to City of Houston employees. The second amendment to Section 16c required that municipalities inform employees in the letter of disciplinary action that they would have the right to appeal an examiner’s decision, as limited by Section 16c(f), which right had been expressly precluded in the 1983 legislation. Section 16c(a) was amended, in pertinent part, as follows: (a) In a city having a population of less than 1,500,000 according to the most recent federal census, the letter of disciplinary action issued to an employee shall state, in addition to other notice requirements prescribed by this Act, that in an appeal of an indefinite suspension, a suspension, a promotional passover, or a recommended demotion, the appealing employee may elect to appeal to an independent third party hearing examiner instead of to the commission. The letter must also state that if the employee elects to appeal to a hearing examiner, the employee waives all rights of appeal to a district court except as provided by Subsection (f) of this section. To exercise this choice, the appealing employee must submit [a letter] to the director a written request as part of the original notice of appeal required under Section 16b(b) of this Act stating his decision to appeal to an independent third party hearing examiner. Act of May 26, 1985, 69th Leg., R.S. ch. 910, § 5(a), 1985 Tex. Gen. Laws 3046, 3052. This second amendment requires the department to provide notice to the employee of (1) a right to appeal the disciplinary action to an independent hearing examiner, and (2) the consequences on the scope of the employee’s appellate rights—described in Subsection (f), which mirrors the limitations of Section 143.1016(j)—if the employee chooses that route. In explaining this amendment to Section 16c(a), the Bill Analysis describes the change as “adding requirements to the content of a letter of disciplinary action.” House Comm. on Urban Affairs, Bill Analysis, Tex. H.B. 1657, 69th Leg., R.S. (1985). The effect of this amendment is problematic in that Section 16c(b) was not amended at all in 1985, and continued to say that, if the employee decides to appeal to a hearing examiner, “the employee automatically waives all rights to appeal to district court.” Act of May 30, 1983, 68th Leg., R.S., ch. 420, § 9, 1983 Tex. Gen. Laws 2246, 2266. Clearly, the two provisions are not compatible and it was unclear whether employees were authorized to appeal a hearing examiner’s decision after 1985. But the inconsistency was short lived, as the Legislature amended Section 16c(b) to explicitly afford employees the right to appeal an examiner’s decision, as circumscribed by Section 16c(f), which eliminated the tension between the provisions. In 1987, Texas’ civil statutes affecting cities, towns, and villages were recodified into the Local Government Code by Senate Bill 896. See Act of April 30, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 Tex. Gen. Laws 707, 906. The Bill Analysis explained the Texas Legislative Council’s mandate to codify Texas’ civil statutes and noted that the purpose of the bill was “a nonsubstantive revision of the Texas statutes relating to local government, primarily cities and counties.” Sen. Comm. on State Affairs, Bill Analysis, Tex. S.B. 896, 70th Leg., R.S. (1987). Senate Bill 896’s proposed language for Section 143.057(c) merely strips out Section 16c(b)’s denial of any right to appeal and inserted the right to an appeal as limited by current Section 143.057(j). See Tex. Loc. Gov’t Code §§ 143.057(c), (j). Nothing in the text of the bill, the Bill Analysis, or the Revisor’s Notes indicates that the text of current Section 143.057(c) was altered during the recodification process to read “the employee automatically waives all rights to appeal to district court except as provided by Subsection (j).” Id. § 143.057(c) (emphasis added). Nevertheless, the change appears to have been made in the 1987 recodification. Whether or not the Legislature intended to provide employees the right to appeal a hearing examiner’s decision in 1985 or 1987, the fact remains that appeals to district court were allowed in 1983 even though employees were unambiguously denied such a right. This historical reconstruction strongly suggests that when the Legislature created the independent hearing examiner option in 1983, municipalities, indeed only municipalities, were afforded a limited right to appeal the examiner’s decision, and there is nothing to indicate that municipalities do not retain that right today. We conclude that Chapter 143 does not preclude the City of Houston from appealing the independent hearing examiner’s adverse decision in this case. That appeal, however, is restricted by the scope of review described in Section 143.1016(j), i.e., that the hearing examiner was without jurisdiction or exceeded that jurisdiction or the order was procured by fraud, collusion or other unlawful means. Tex. Loc. Gov’t Code § 143.1016(j). The City claims its appeal fits within Section 143.1016(j)’s limited scope because the hearing examiner acted without or exceeded his jurisdiction by erroneously deciding that an acting fire chief is not authorized to suspend fire department personnel. Clark responds that the acting fire chief had no authority to suspend, but even if he did, the hearing examiner’s decision to the contrary was nevertheless within the examiner’s jurisdiction and thus unassailable under Section 143.1016(j). Because the court of appeals dismissed the City’s appeal, it did not reach these issues. Of course, if the right of appeal provided by Section 143.1016(j) does not afford a city meaningful review of the merits of a decision, as Clark appears to argue, delegation of grievance decisions to an independent hearing examiner may raise constitutional problems. See Tex. Boll Weevil Eradication Found., 952 S.W.2d at 472. The City takes a much broader view of the issues the provision would allow to be raised on appeal. But the precise scope of the appeal provided by Section 143.1016(j) and its effect on cities have not been fully presented in this Court. See Proctor, 972 S.W.2d at 735 (declining to decide whether the Legislature impermissibly delegated authority to hear appeals to a private decisionmaker under Section 143.057(d) of the Local Government Code since that question was not properly framed by the City). Having concluded that the court of appeals erred in dismissing the appeal, we remand the case to that court for consideration of the parties’ arguments on these issues and others. IV. Conclusion We hold that Section 143.1016(j) of the Local Government Code affords the City of Houston the right to appeal the independent hearing examiner’s adverse decision in this case, and the court of appeals erred in dismissing the City’s appeal. Accordingly, we reverse the court of appeals’ judgment dismissing the City’s appeal for want of jurisdiction and remand the case to that court for further proceedings. __________________________________________ Harriet O’Neill Justice OPINION DELIVERED: June 30, 2006 [1] The court of appeals noted that any contradiction in the simultaneous decisions was not material to the outcome of the appeal. 142 S.W.3d 350, 354. We agree. [2] Section 143.117(a) of the Code provides: “The head of the fire or police department may suspend a fire fighter or police officer under the department head’s supervision or jurisdiction for disciplinary reasons for a reasonable period not to exceed 15 days.” Id. § 143.117(a). The Code defines “department head” as “the chief or head of a fire or police department or that person’s equivalent, regardless of the name or title used.” Id. § 143.003(2). [3] The City argued: (1) the hearing examiner ignored the provisions of Chapter 143 of the Local Government Code and improperly interpreted the term “department head”; (2) Rivera does not control the present case under the doctrine of stare decisis; (3) the hearing examiner had jurisdiction to decide the merits of the suspension; (4) the hearing examiner did not have jurisdiction to determine that the acting fire chief did not have the authority to issue a suspension; (5) only the City had the authority to determine who could act as the equivalent of the fire chief; (6) the hearing examiner did not have standing to compel the City to follow procedures it was not legally required to follow; and (7) the City enjoyed governmental immunity. [4] We note the similarity between Sections 143.1016 and 143.057 of the Local Government Code. Section 143.057 applies to all municipalities governed by Chapter 143, while Section 143.1016 applies only to those municipalities with a population of 1.5 million or more. See Tex. Loc. Gov’t Code § 143.101. As we explain herein, Section 143.1016 was modeled on the language of Section 143.057. In particular, the language governing appeals of independent hearing examiner decisions in Sections 143.1016(c) and (j) exactly duplicates that of Sections 143.057(c) and (j). Therefore, our decision today is not limited to the City of Houston; it applies with equal force to all municipalities governed by Chapter 143 of the Local Government Code. [5] The Legislature’s use of the phrase “arbitration panel” is difficult to explain in the context of appeals to individual independent hearing examiners under Section 143.1016, since the hearing examiner, not an arbitration panel, provides a final decision. For purposes of this case, we presume Section 143.1016(j)’s reference to “arbitration panel” includes an independent hearing examiner. [6] If no agreement can be reached, the Code provides a mechanism for the selection of an arbitrator from the American Arbitration Association or the Federal Mediation and Conciliation Service. Id. [7] As a further warning, the Legislature required the letter of disciplinary action issued to a fire fighter or police officer to state that if the fire fighter or police officer opted for an independent hearing examiner to oversee the appeal, the person waives all rights to a district court appeal except as provided in Section 143.1016(j). Tex. Loc. Gov’t Code § 143.1016(a). [8] Act of May 25, 1989, 71st Leg., R.S., ch. 854, § 4, 1989 Tex. Gen. Laws 3829; see Tex. Gov’t Code § 323.007 (requiring the Texas Legislative Council to plan and execute a permanent statutory revision program, but without altering the sense, meaning, or effect of the statutes). [9] See Tex. Loc. Gov’t Code § 143.057; see also id. § 143.002 (explaining that this Chapter applies only to a municipality: (1) that (A) has a population of 10,000 or more; (B) has a paid fire department and police department; and (C) has voted to adopt this chapter or the law codified by this chapter; or (2) whose election to adopt this chapter and whose acts subsequent to that election were validated by the law enacted by House Bill 822, Acts of the 73rd Legislature, Regular Session, 1993).

City of Houston v. Jackson, 192 S.W.3d 764 (Tex. 2006)

The City of Houston v. Jackson, No 04-0465 (Tex. April 7, 2006)(O'Neill)(fire fighter employment grievance, penalty, plea to the jurisdiction, two appeals in the court of appeals below, law of case doctrine does not preclude Texas Supreme Court from reviewing issue in first, interlocotury appeal) On Petition for Review from the Court of Appeals for the First District of Texas ══════════════════════════════ Argued October 20, 2005 Justice O’Neill delivered the opinion of the Court. Section 143.134(h) of the Texas Local Government Code imposes a $1,000 penalty payable to an aggrieved fire fighter for each day a department head intentionally fails to implement a decision of the Fire Fighters’ and Police Officers’ Civil Service Commission (the “Commission”) under Section 143.131 or a decision of a hearing examiner under Section 143.129 that has become final. Tex. Loc. Gov’t Code ' 143.134(h). The court of appeals held that the penalty provision also applies to a grievance examiner’s unappealed recommendation under Section 143.130 of the Code. 135 S.W.3d 891. We hold that, by the provision’s plain language, it does not. Accordingly, we reverse the court of appeals’ judgment and dismiss Jackson’s statutory penalty claim for want of jurisdiction. I. Background In May 1996, Robert Jackson, an Engineer Operator with the City of Houston Fire Department, requested a voluntary transfer to Fire Station 70. When his request was denied, Jackson initiated a grievance pursuant to Subchapter G of Chapter 143 of the Local Government Code. See Tex. Loc. Gov’t Code '' 143.127-35.[1] That subchapter establishes a four-step process for resolving complaints of aggrieved fire fighters and police officers employed by municipalities with a population of 1.5 million or more. Proceedings under that process increase in formality as the grievance advances from Step I to Step IV, when a final and binding decision is made by an independent hearing examiner or the Commission. See id. When Jackson’s transfer was denied under the proposed solutions presented at Steps I and II of the grievance process, he elected to pursue his Step III appeal before a Commission-appointed grievance examiner rather than an independent third party hearing examiner, a choice the Code expressly afforded him. See id. ' 143.129(d). After an informal hearing, the grievance examiner recommended Jackson receive a transfer to any station, other than Station 70, that had an opening on November 21, 1996, the date of the recommendation. The grievance examiner noted that it was Jackson’s responsibility to apply for his choice of transfer. Neither Jackson nor the Fire Chief appealed the grievance examiner’s recommendation to the Commission; consequently, the recommendation was deemed accepted by the parties. See id. ' 143.130(e). At the time of the recommendation, Jackson occupied a “roving” position in the department, meaning he was assigned to a particular station but was often sent to others when the need arose. The only stations with openings on the date of the recommendation were 11B, 21B, and 82B. Although Jackson had a standing application to Station 11B when the grievance examiner’s recommendation issued, Jackson was not awarded that transfer, purportedly because the fire department’s district chief believed the grievance examiner’s decision required Jackson to submit a new, written transfer request, which he did not do. In April 1998, Jackson was transferred from his “roving” position to Station 48D as a result of an agreement with the Fire Chief. After this transfer, he continued to submit, and often withdraw, applications to transfer stations, including various transfer requests in August and September of 1998. These requests were not granted, primarily because they were for stations other than those three that had openings available on the date of the recommendation. On September 18, 1998, Jackson filed a second grievance, complaining that the original recommendation had never been implemented. The assistant fire chief disposed of this second grievance by informing Jackson that he could not “rule on a grievance that supposedly has been decided by a grievance examiner.” Jackson did not appeal the assistant fire chief’s decision by filing a Step II grievance form. Two months later, Jackson sued the City of Houston and Lester Tyra, as Fire Chief of the Houston Fire Department, alleging the City’s failure to implement the grievance examiner’s 1996 recommendation violated Section 143.134(h) of the Local Government Code and seeking declaratory and mandamus relief. Jackson sought $798,000 in statutory penalties and interest as a result of the City’s alleged violation of Section 143.134(h), as well as costs and attorney’s fees. The City filed a plea to the jurisdiction, alleging Jackson had failed to exhaust his administrative remedies because the penalty provision applies only to decisions of the Commission under Section 143.131 or the decisions of independent hearing examiners under Section 143.129, whereas Jackson chose to pursue his grievance before a grievance examiner under Section 143.130. The trial court denied the City’s jurisdictional plea, and the court of appeals affirmed. City of Houston v. Jackson, 42 S.W.3d 316 (Tex. App.CHouston [14th Dist.] 2001, pet. dism’d w.o.j.) (“Jackson I”). The appeals court concluded that an unappealed grievance examiner’s recommendation under Section 143.130 constituted a final decision of the Commission under Section 143.131 for purposes of invoking the statutory penalty provision; thus Jackson had exhausted his administrative remedies and properly invoked the trial court’s jurisdiction. Id. at 322-23. The case proceeded to trial, and the jury found that the Fire Chief had intentionally failed to implement Jackson’s transfer request from November 21, 1996 to April 7, 1998. Based on the jury’s findings, the trial court rendered judgment on the jury’s verdict in Jackson’s favor, and awarded $477,000 in statutory penalties, attorney’s fees, post-judgment interest, and other expenses. Both the City and Jackson appealed, the City challenging the trial court’s judgment on a number of grounds, including lack of jurisdiction, and Jackson contesting the period for which the trial court awarded the statutory penalty. The court of appeals affirmed the trial court’s judgment in all respects. 135 S.W.3d at 894 (“Jackson II”). Jackson did not seek review of the court of appeals’ decision. We granted the City’s petition for review to consider Section 143.134(h)’s application and related issues. II. Analysis A. Overview of the Grievance Process Chapter 143 of the Local Government Code establishes the four-step grievance process that governs this case. See Tex. Loc. Gov’t Code '' 143.127-35. The Code covers a broad range of grievances: The fire fighter or police officer may file a grievance that relates to the same aspects of the person’s employment over which the civil service commission for the employees of the municipality who are not subject to this chapter would have lawful jurisdiction, including but not limited to a written or oral reprimand, transfers, job performance reviews, and job assignments. Id. ' 143.127(a).[2] To initiate a grievance, the fire fighter must file a Step I grievance form with the department head or departmental grievance counselor. Id. ' 143.128(a). Thereafter, the departmental grievance counselor schedules a Step I meeting with the fire fighter, the fire fighter’s immediate supervisor or other appropriate supervisor, or both, and the person against whom the grievance is lodged. Id. ' 143.128(b). The Step I procedure attempts to resolve the complaint informally and encourages the supervisor to “openly discuss the grievance with the fire fighter or police officer in a sincere attempt to resolve it.” Id. ' 143.128(c). The fire fighter’s supervisor must provide an evaluation and proposed recommendation for solution of the Step I grievance. Id. ' 143.128(d). If the proposed solution is not acceptable, the fire fighter may file a Step II grievance form within fifteen calendar days after receiving the supervisor’s proposed Step I solution. Id. ' 143.129(a). If the fire fighter fails to timely file a Step II grievance form, the Step I solution is considered accepted. Id. ' 143.128(e). The Step II proceeding requires a meeting of all Step I participants, as well as the department head or the department head’s representative. Id. ' 143.129(b). The department head or representative is required to provide a proposed recommendation for solution to the fire fighter. Id. ' 143.129(c). If the proposed solution is not acceptable, the fire fighter has the option to appeal along one of two tracks. The fire fighter may: (1) “submit a written request stating the person’s decision to appeal to an independent third party hearing examiner pursuant to the provisions of Section 143.057,” or (2) “file a Step III grievance form with the director in accordance with Section 143.130,” in which event the Commission appoints a grievance examiner to oversee the appeal. Id. '' 143.129(d), 143.132(a). The difference between these two tracks is significant, with each having perceived advantages and disadvantages that we will later describe. An independent third party hearing examiner has the same duties and powers as the Commission, including the right to issue subpoenas, and issues a decision that is “final and binding on all parties.” See id. '' 143.057(c), 143.057(f). Although the Code governs the hearing conducted by an independent third party hearing examiner, a fire fighter who opts for this alternative in effect removes the grievance outside the influence of the Commission and its appointees. The other choice afforded a fire fighter is to appeal the Step II proposed solution to a Commission-appointed grievance examiner, who will conduct a hearing with all Step II participants and each person specifically named in the grievance. Id. ' 143.130(c). This Step III proceeding is “conducted as an informal administrative procedure.” Id. Similar to the requirements in Steps I and II, the grievance examiner presents written findings and a recommendation for solution. Id. ' 143.130(d). If the proposed solution is not acceptable to the fire fighter or the department head, either may file a Step IV grievance form. Id. ' 143.130(e). Under the Step IV proceeding, the Commission reviews the grievance examiner’s findings and recommendation and considers the transcript of the Step III hearing before rendering a decision. Id. ' 143.131(b). The Commission decision is final and binding on the parties. Id. ' 143.131(c). With this overview of the Chapter 143 grievance process and Jackson’s chosen journey through it, we must next address a preliminary error-preservation argument that Jackson has raised. B. Preservation As a threshold matter, Jackson contends the City failed to preserve error on the issue of Section 143.134(h)’s construction because the City’s challenge to the trial court’s jurisdiction on identical grounds was rejected in Jackson I, 42 S.W.3d at 322-23, and this Court dismissed the City’s interlocutory appeal for want of jurisdiction. In Jackson I, the Fourteenth District Court of Appeals held that a grievance examiner’s unappealed recommendation under Section 143.130 was in effect a final decision of the Commission under Section 143.131; therefore, Jackson had exhausted his administrative remedies and the trial court had jurisdiction over his statutory penalty claim. Id. at 322. In Jackson II, the First District Court of Appeals determined that the Jackson I decision was not clearly erroneous and declined to reconsider that court’s construction of Section 143.134(h). 135 S.W.3d at 897. In this appeal, Jackson again contends the City has failed to demonstrate that the Jackson I court’s construction of Section 143.134(h) was clearly erroneous, and argues that the court of appeals here did not abuse its discretion by following that decision. Consequently, Jackson claims, the court of appeals properly applied the “law of the case” doctrine and we should not disturb its decision. We disagree. The “law of the case” doctrine provides that a decision of a court of last resort on a question of law will govern a case throughout its subsequent stages. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). The Jackson II court correctly noted that a conclusion reached by an intermediate appellate court does not bar reconsideration of the initial conclusion in a subsequent appeal, and the decision to revisit the conclusion is left to the discretion of the court under the particular circumstances of each case. 135 S.W.3d at 896 (citing Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003)). But the “law of the case” doctrine in no way prevents this Court from considering legal questions that are properly before us for the first time. We are not bound by the Jackson I court’s construction of Section 143.134(h), since the City’s interlocutory petition for review to this Court was properly dismissed and the City’s challenge to the court of appeals’ construction of Section 143.134(h) is now before us for the first time. Cf. Trevino v. Turcotte, 564 S.W.2d 682, 685 (Tex. 1978) (holding that a court of appeals’ conclusion was not binding under the “law of the case” doctrine when the petitioner’s first writ of error was denied by this Court “writ refused, no reversible error”). We now turn to the Section 143.134(h) penalty provision and the parties’ arguments. C. Section 143.134(h) Section 143.134(h) of the Local Government Code provides as follows: If the decision of the commission under Section 143.131 or the decision of a hearing examiner under Section 143.129 that has become final is favorable to a fire fighter, the department head shall implement the relief granted to the fire fighter not later than the 10th day after the date on which the decision was issued. If the department head intentionally fails to implement the relief within the 10-day period, the municipality shall pay the fire fighter $1,000 for each day after the 10-day period that the decision is not yet implemented. Id. ' 143.134(h) (emphasis added). Our primary objective when construing a statute is to ascertain and give effect to the Legislature’s intent. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). In discerning that intent, we begin with the “‘plain and common meaning of the statute’s words.’” Id. (quoting State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002)). When the statutory language is unambiguous, we must apply the statute as written. See RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985). Moreover, we have consistently held that penal statutes should be strictly construed. See, e.g., Brown v. De La Cruz, 156 S.W.3d 560, 565 (Tex. 2004). We have similarly construed statutes waiving sovereign and governmental immunity. See, e.g., Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003); see also Tex. Gov’t Code ' 311.034 (“[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.”). With these standards in mind, we begin by examining the text of Section 143.134(h). The City argues that Section 143.134(h), by its plain terms, does not extend to a grievance examiner’s recommendation under Section 143.130. At no time, the City contends, did the grievance examiner’s recommendation concerning Jackson’s Step II appeal ever become a final Commission decision under Section 143.131, or a decision by an independent hearing examiner under Section 143.129, as the penalty provision unambiguously requires. Had the Legislature intended the statutory penalty to apply to mere recommendations, the City argues, it could have easily included them in the statutory language with unmistakable clarity. Since it did not, the City maintains, this Court must apply the provision as written. Jackson responds with a plain-language argument of his own, claiming that the reference in Section 143.134(h) to decisions by a “hearing examiner under Section 143.129” encompasses recommendations proposed by both grievance examiners and independent hearing examiners. Jackson notes that neither type of examiner is appointed under Section 143.129. Rather, independent third party hearing examiners and grievance examiners are authorized under Sections 143.057 and 143.130, respectively.[3] Thus, Jackson contends, the penalty provision’s reference to a “hearing examiner under Section 143.129" extends to both types of decisionmakers, since it is that section that provides fire fighters the option to choose one or the other when appealing a Step II proposed solution. According to Jackson, had the Legislature intended the reference to “hearing examiners under Section 143.129” to apply solely to independent hearing examiners, which are appointed under Section 143.057, the Legislature would have logically referenced that section instead of Section 143.129 to avoid any ambiguity in the penalty provision’s application. We believe the statutory grievance procedure’s language and structure contradict Jackson’s argument and support the City’s interpretation of the penalty provision. As we have said, the Code provides a fire fighter like Jackson the choice of appealing a Step II proposed solution to a grievance examiner or an independent third party hearing examiner. See Tex. Loc. Gov’t Code ' 143.129(d). There are significant consequences associated with that choice, and each track has perceived advantages and disadvantages. For example, a grievance examiner’s Step III recommendation for solution is subject to further appeal to the Commission, absent which it is deemed accepted by the parties. Id. '' 143.130(e), 143.131(a)-(c). A fire fighter who appeals to the Commission and is not satisfied with its decision may file a petition in district court to set aside the Commission’s decision and proceed by trial de novo. Id. ' 143.015(a)-(b). In contrast, an independent hearing examiner’s decision is “final and binding on all parties,” id. ' 143.057(c), and any further review of the decision through an appeal to the district court is severely circumscribed. See id. ' 143.057(j) (“A district court may hear an appeal of a hearing examiner’s award only on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means.”). Not only do the two tracks invoke different procedures for appeal, there are different potential costs to the fire fighter depending upon the track chosen. There are no costs to the fire fighter who chooses to present his appeal to a grievance examiner, other than the costs of the fire fighter’s representation, id. ' 143.134(a), while expenses associated with an independent third party hearing examiner are allocated between the parties after the final decision according to who prevails. Id. ' 143.129(d). Finally, the method of selecting the examiner varies significantly between the two tracks. An independent hearing examiner is selected upon mutual agreement of the parties; if no agreement can be reached, the parties must methodically whittle down a list of qualified neutral arbitrators by alternately striking names until a single arbitrator remains to conduct the hearing. See id. ' 143.057(d). This mutual participatory process is in contrast to the Commission’s unilateral appointment of a grievance examiner. See id. '' 143.130(b), 143.132. In sum, the Code contains substantive distinctions between grievance examiners and independent third party hearing examiners, and those distinctions must inform our construction of the statutory penalty provision. We simply cannot presume, as Jackson urges us to do, that Section 143.134(h)’s reference to the decision of a “hearing examiner” was intended to gloss over this distinction and sweep the recommendations of grievance examiners into the statutory penalty provision. Instead, we find the text of the penalty provision sufficiently precise to conclude that the Legislature did not intend to include grievance examiner recommendations within the provision’s purview. In addition to the precise reference to a “hearing examiner,” the penalty provision also specifically references “the decision” of the Commission and “the decision” of the hearing examiner. Id. ' 143.134(h). Under the Code’s plain language, it is the Commission and independent hearing examiners who produce “decisions,” while grievance examiners are only authorized to provide “recommendations for solution.” Id. ' 143.130(d). We presume that the Legislature knew the difference between the two when crafting the penalty provision and intended it to apply only to final decisionmakers. Although Jackson claims the Legislature intended to make the alternatives of appeal equal under Section 143.129(d), we believe the statutory language compels the opposite conclusion. Jackson’s interpretation contravenes the plain language of Section 143.134(h) and would allow for the penalty to attach to recommendations resulting from informal, intermediate hearings midway through the grievance procedure. We find no support in the statutory language that the Legislature intended Section 143.134(h) to include appealable solutions and recommendations like those a grievance examiner is authorized to provide under Section 143.130. Jackson alternatively claims that, because the grievance examiner’s recommendation was not appealed, it became in effect a decision of the Commission for purposes of invoking the penalty provision. Jackson contends the crucial element in applying the penalty provision is not the entity issuing the decision, but whether or not the recommendation or decision is final. Because the grievance examiner is the duly appointed representative of the Commission, Jackson argues, the grievance examiner’s recommendation becomes the final decision of the Commission by operation of Section 143.131(a) when no party appeals. See Tex. Loc. Gov’t Code ' 143.131(a) (“[A] department head . . . [who] rejects the solution [of the grievance examiner] under Section 143.130, . . . must complete a step IV grievance form and file it . . . within 15 calendar days . . . .”). Such an interpretation, according to Jackson, is the only one that furthers the Legislature’s intent to discourage fire departments from failing to timely comply with solutions they have apparently accepted. If the City disagreed with the grievance examiner’s recommendation, Jackson maintains, it should have appealed to the Commission to vindicate its position. According to Jackson, the City should not be allowed to refuse to implement a recommendation it accepted and simultaneously avoid the penalty provision. Jackson further asserts that the penalty provision must apply to unappealed grievance examiner recommendations since the provision applies to a decision “that has become final.” Id. ' 143.134(h) (referring to “the decision of a hearing examiner under Section 143.129 that has become final . . . .”) (emphasis added). Because decisions by the Commission and independent hearing examiners are automatically final, the argument goes, the phrase “has become final” would be rendered surplusage unless it refers to grievance examiner recommendations that become final decisions of the Commission when the department head chooses not to appeal further. Again, we disagree, and decline Jackson’s invitation to judicially rewrite Section 143.134(h). A grievance examiner’s recommendation does not “become” a final “decision” of the Commission when no one appeals; rather, Section 143.130 specifically provides that the solution is deemed “accepted” by the parties: If the proposed solution is not acceptable to either the fire fighter or police officer or the department head, either party may file a step IV grievance form with the director in accordance with Section 143.131. If the fire fighter or police officer or the department head fails to timely file a step IV grievance form, the solution is considered accepted by that person. Id. ' 143.130(e) (emphasis added). The specific parties who are considered to have accepted the solution are the grievant and the department head, not the Commission. Id. Moreover, the Code does not equate deemed “acceptance” with decisionmaking. The Commission’s decisionmaking process is described in Section 143.131 and is invoked when the grievant or department head timely files a Step IV grievance form contesting the Step III recommendation, something neither side chose to do in this case. Id. ' 143.131(a). The decisionmaking process involves a Commission review of the grievance examiner’s findings and recommendations, consideration of the transcript and evidence accepted at the Step III hearing, and issuance of a written decision that must be provided to the grievant, the department head, and the grievance examiner. Id. ' 143.131 (b)-(c). Only then is the Commission’s decision considered final. Id. ' 143.131(c). Jackson’s argument that an unappealed grievance examiner’s recommendation is akin to a final decision of the Commission not only lacks support in the statutory language, but taken to its logical conclusion would allow the $1,000 daily penalty to attach to the failed implementation of any unappealed recommendation even if the recommendation was proposed by the fire fighter’s immediate supervisor or department head at Step I or Step II in the grievance process, respectively. See Tex. Loc. Gov’t Code '' 143.128(d), 143.129(c). We see nothing that would indicate the Legislature intended to abrogate municipalities’ governmental immunity in such a haphazard manner. To discover such an intent in this case, in direct opposition to the statutory language, would run afoul of long-held statutory construction principles that compel strict construction of penal statutes and statutes waiving sovereign and governmental immunity. See De La Cruz, 156 S.W.3d at 565; see also Wichita Falls State Hosp., 106 S.W.3d at 696. Jackson cites the testimony of Alice Perrenot, division manager for the Human Resources Department, as evidence that the Commission approved the recommendation of the grievance examiner. Whatever the import of her testimony might be, however, there is no statutory basis for such an assertion. And even assuming the Commission’s policy is to review grievance examiners’ recommendations, such a review does not constitute a “decision of the commission” as required by Section 143.134(h). As we have explained, it is undisputed that there was no Step IV appeal in Jackson’s grievance that would have necessitated a “decision of the commission” and triggered the penalty provision. See Tex. Loc. Gov’t Code ' 143.131. Finally, Jackson protests that interpreting Section 143.134(h) as we have leaves fire fighters without the means to induce compliance with favorable recommendations made in the grievance process. But we believe the statutory language indicates the Legislature’s deliberate choice not to subject governmental entities to stiff statutory penalties absent a final decision made under the process that the Code allows, a process that the Legislature afforded fire fighters considerable opportunity to direct. Jackson’s position would require this Court to effectively insert language into Section 143.134(h) that the Legislature itself did not include. We decline to second-guess the Legislature’s policy choice by adding language to an unambiguous statute. III. Conclusion We conclude that the grievance examiner’s recommendation concerning Jackson’s grievance was not a sanctionable decision under Section 143.134(h); therefore, the trial court lacked jurisdiction over Jackson’s statutory penalty claim. Accordingly, we reverse the court of appeals’ judgment and dismiss Jackson’s statutory penalty claim for want of jurisdiction. City of Houston v. Jackson, No. 04-0465 (Tex. Apr. 7, 2006)(O’Neill) __________________________________________ Harriet O’Neill Justice OPINION DELIVERED: April 7, 2006 [1] Chapter 143 of the Local Government Code applies only to those municipalities that have: (1)(a) a population of 10,000 or more; (b) a paid fire department and police department; and (c) voted to adopt Chapter 143 or the law codified by Chapter 143; or (2) elected to adopt Chapter 143 and whose acts subsequent to that election were validated by the law enacted by House Bill 822, Acts of the 73rd Legislature, R.S., 1993. Tex. Loc. Gov’t Code ' 143.002. The grievance process provided for in Subchapter G applies only to a municipality with a population of 1.5 million or more. Tex. Loc. Gov’t Code ' 143.101(a). [2] Section 143.127(a)(1)-(2) excepts certain types of grievances, including allegations of discrimination, from the purview of Chapter 143’s grievance procedure. [3] We note that hearing examiners are also authorized in Subchapter G under Section 143.1016, which applies only to municipalities with a population of 1.5 million or more. However, our analysis remains unaffected since Section 143.057 applies with equal force to large municipalities. Tex. Loc. Gov’t Code § 143.101(b) (noting that the entirety of Chapter 143 applies to municipalities with a population of 1.5 million or more unless otherwise provided).