author: Justice JOHNSON

text:
    CITY OF WACO, Texas, Petitioner, v. Larry KELLEY, Respondent.
    No. 07-0485.
    Supreme Court of Texas.
    Argued April 2, 2008.
    Decided Feb. 19, 2010.

      Kevin Wayne Cole, Cole & Powell, P.C., Jennifer A. Powell, Schwartz & Eichelb-aum Wardell Mehl and Hansen, Austin, Arthur Pertile III, City Attorney, Christopher Daniel Taylor, Assistant City Attorney, John T. Patterson, Interim City Attorney, David W. Holman, The Holman Law Firm, P.C., Houston, Leah-Flora Bernadett Hayes, City Attorney, for Petitioner.
    LaNelle L. McNamara, LaNelle L. McNamara, P.C., Waco, Michael Lee Rickman, C.L.E.A.T. Office, Richard W. Carter, Combined Law Enforcement Associations of Texas, Fort Worth, for Respondent.
    B. Craig Deats, Deats Durst Owen & Levy, P.L.L.C., Austin, for Amicus Curiae Texas State Association of Fire Fighters.
    Marcus L. Dobbs, Senior Assistant City Attorney, for Amicus Curiae City of Houston.
   Justice JOHNSON

delivered the opinion of the Court.

Under the City of Waco’s civil service system, a police officer may appeal involuntary discipline to either the Civil Service Commission or a third party hearing examiner. In this case, an assistant chief was disciplined by being indefinitely suspended, which is the equivalent of being dismissed from the department. A hearing examiner found that the charges against him were true but determined that the discipline was excessive. The hearing examiner reduced the suspension to 180 days, reinstated the assistant chief to the police force at a reduced rank, and ordered that he be made whole as to his lost wages and benefits. We hold that the examiner exceeded his jurisdiction in part. We reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.

I. Background

The City of Waco has adopted Chapter 143 of the Local Government Code (the Civil Service Act, or Act) and thereby provides a civil service system for -its police department. Tex. Loc. Gov’t Code § 143.004; Waco, Tex., Code of Ordinances § 18-96 (2009). The Act provides that all police officers are “classified” employees and have civil service protection, except for the head of the department and any persons the department head appoints to positions categorized as being immediately below the department head. Tex. Loc. Gov’t Code § 143.021(b).

Larry Kelley was a veteran officer with the Waco Police Department and was serving as commander in 1999 when he was appointed assistant chief of police. Assistant chief is the personnel category immediately below that of the chief, who is the department head. While serving as assistant chief, Kelley was arrested in Austin and charged with driving while intoxicated. Waco’s Chief of Police, Alberto Melis, determined that Kelley’s conduct violated Waco’s civil service rules. Kelley offered to accept voluntary discipline of being returned to the position of commander, serving a ninety-day suspension, and performing service by addressing the younger police officers. Chief Melis rejected Kelley’s offer and suspended him indefinitely. The Act specifies that an indefinite suspension is equivalent to dismissal from the department. Id. § 143.052(b).

Pursuant to procedures mandated by Subchapter D of the Act, which is entitled “Disciplinary Actions,” Chief Melis filed a written statement with Waco’s Fire Fighters’ and Police Officers’ Civil Service Commission setting out his reasons for suspending Kelley. See id. § 143.052(c). Melis specified that Kelley’s suspension was based on Section 143.051(7), which provides that a police officer may be removed or suspended for drinking intoxicants while on duty or for intoxication while off duty, and Section 143.051(12), which provides for the removal or suspension of an officer for violation of an applicable fire or police department rule or special order.

Even though Kelley was not a classified employee because he was an assistant chief, the Act provided him the same appellate rights and privileges as a classified officer. Id. § 143.014(h). He was therefore entitled to appeal either to the commission or to an independent third party hearing examiner. Id. § 143.057(a). Kelley appealed to a hearing examiner. The hearing examiner found that the charges against Kelley were true but concluded that the discipline imposed was excessive. The examiner ordered Kelley reinstated at the rank of sergeant and ordered his indefinite suspension reduced to a temporary suspension of 180 days. The examiner also directed that Kelley be “made whole subject to the normal principles of mitigation.”

The City appealed to the district court. It alleged that the hearing examiner exceeded his jurisdiction by considering evidence not presented at the hearing, reducing the length of Kelley’s suspension from indefinite to temporary, demoting him, and awarding back pay and benefits. See id. § 143.057© (stating that a district court may hear an appeal of a hearing examiner’s award “on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction”). Kelley denied the City’s claims. By counter-appeal, he requested reconsideration of the hearing examiner’s denial of his motion to have the suspension declared void because the City failed to follow specific procedures under the Act when suspending him. He moved for dismissal of the City’s appeal for lack of jurisdiction and filed a motion for summary judgment in which he asserted there was no evidence the hearing examiner exceeded his jurisdiction. The district court denied Kelley’s motion to dismiss and counter-appeal, granted his motion for summary judgment, and awarded him $12,500 in attorney’s fees. The City appealed.

The court of appeals dismissed the case for lack of jurisdiction. The court reasoned that the trial court had no jurisdiction because “the [C]ity has no right of appeal from [the] hearing examiner’s decision — only [a] firefighter or police officer can appeal.” No. 10-03-00214-CV, 2004 WL 2481383, at *1 (Tex.App.-Waco Oct.29, 2004) (mem. op.), rev’d per curiam, 197 S.W.3d 324 (Tex.2006). After the court of appeals rendered its decision, we held that municipalities have the right to appeal an independent hearing examiner’s decision. City of Houston v. Clark, 197 S.W.3d 314, 324 (Tex.2006). Referencing Clark, we reversed and remanded Kelley’s case to the court of appeals for further proceedings. City of Waco v. Kelley, 197 S.W.3d 324, 325 (Tex.2006). On remand, the court of appeals held that the hearing examiner did not exceed his jurisdiction by reducing the length of Kelley’s suspension or by awarding him back pay and benefits and that the district court properly awarded Kelley attorney’s fees. 226 S.W.3d 672, 681. The court of appeals also held that the hearing examiner exceeded his jurisdiction by ordering Kelley’s demotion to sergeant and ordered Kelley reinstated at his prior classified position of commander. Id.

We granted the City’s petition for review. By six issues, the City challenges the court of appeals’ judgment on the bases that when a hearing examiner finds the charges against an indefinitely suspended officer are true, the hearing examiner has authority under the Act only to affirm the suspension and permanently dismiss the officer; even if the hearing examiner has jurisdiction to reduce an indefinite suspension and thereby effectively reinstate the officer to the department, the examiner has no authority to order a suspension for 180 days or order back pay and benefits; and attorney’s fees are not recoverable in an appeal from a hearing examiner’s award. We begin by addressing the hearing examiner’s jurisdiction.

II. Jurisdiction of a Hearing Examiner

A. The Act Provides Jurisdiction

In City of Pasadena v. Smith, 292 S.W.3d 14 (Tex.2009), decided after the court of appeals’ decision in this case, we considered jurisdictional boundaries in appeals from disciplinary suspensions under the Act. There, the hearing examiner summarily ruled against the city because the department head was not present to testify when the hearing began. Id. at 16. In analyzing the examiner’s actions, we noted that the deadlines, procedures, and limitations the Act provides as to the Civil Service Commission apply equally to hearing examiners. Id. at 20. Those deadlines, procedures, and limitations necessarily provide standards by which the actions of examiners must be measured; otherwise, the Act could raise concerns that it imper-missibly delegates legislative authority:

But if the Act does not bind hearing examiners to definite standards for reaching decisions and instead gives them broad latitude in determining not only factual disputes but the applicable law, they become not merely independent arbiters but policy makers, which is a legislative function. This would raise nondelegation concerns, an issue noted but not addressed in Proctor [v. Andrews, 972 S.W.2d 729 (Tex.1998) ]. It is one thing for a hearing examiner to determine whether conduct for which an officer or fire fighter has been disciplined occurred as charged; it is quite another thing for a hearing examiner to decide whether conduct that did occur deserves discipline.

Id. at 18-19.

We held that a hearing examiner is not authorized to make rules, but must follow those prescribed by the Legislature and that the Act both confers and limits the power of a hearing examiner. Id. at 20; see Tex. Loc. Gov’t Code § 143.010(g). We acknowledged the difficulty of stating a test for determining when a hearing examiner exceeds his jurisdiction: “The most accurate test we can state is that a hearing examiner exceeds his jurisdiction when his acts are not authorized by the Act or are contrary to it, or when they invade the policy-setting realm protected by the non-delegation doctrine.” City of Pasadena, 292 S.W.3d at 21. Because the hearing examiner in City of Pasadena refused to hear evidence and did not make his decision based on evidence submitted during the hearing as the Act requires, he exceeded his jurisdiction. Id. at 20-21.

Because the City of Waco does not argue that the Act impermissibly delegates legislative authority, we will focus on whether the hearing examiner exceeded his jurisdiction by ordering either relief not authorized by the Act or relief contrary to that authorized by the Act. See id. at 21. Making that determination requires us to consider what actions the Act authorized the hearing examiner to take and to measure the examiner’s actions against those authorized actions. In construing the statute to determine what relief it authorizes, we keep in mind that our objective is to determine and give effect to the Legislature’s intent. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.2008). If the Legislature provides definitions for words it uses in statutes, then we use those definitions in our task. See Tex. Gov’t Code § 311.011(b). We give effect to legislative intent as it is expressed by the plain meaning of words used in the statute unless the context necessarily requires a different construction, a different construction is expressly provided by statute, or such an interpretation would lead to absurd or nonsensical results. See Hernandez v. Ebrom, 289 S.W.3d 316, 321 (Tex.2009); Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999). Thus, we also must examine the Legislature’s words in context of the statute as a whole and not consider words or parts of the statute in isolation. Harris County Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex.2009). Our review is de novo. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003) (“We review matters of statutory construction de novo.”); see also Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003) (“We review the trial court’s summary judgment de novo.”).

B. Appeal of a Suspension

If a classified officer is involuntarily suspended, the officer may appeal the suspension to either the commission or an independent third party hearing examiner. Tex. Loc. Gov’t Code § 143.057(a). If appeal is to a hearing examiner, the examiner has the same duties and powers as the commission. Id. § 143.057(f). The ultimate decision options of the commission— and hearing examiner — are specified in Section 143.053:

(e) In its decision, the commission shall state whether the suspended fire fighter or police officer is:
(1) permanently dismissed from the fire or police department;
(2) temporarily suspended from the department; or
(3) restored to the person’s former position or status in the department’s classified service.
(f) If the commission finds that the period of disciplinary suspension should be reduced, the commission may order a reduction in the period of suspension.

Id. § 143.053(e)-(f).

Officers appointed and serving in positions immediately below the department head, as Kelley was, do not have civil service protection. Id. § 143.021(b). Nevertheless, if an officer serving in such a position is indefinitely suspended, the Act affords that officer the same rights to a hearing that a classified officer would have:

(h) If a person appointed under this section is charged with an offense in violation of civil service rules and indefinitely suspended by the department head, the person has the same rights and privileges of a hearing before the commission in the same manner and under the same conditions as a classified employee. If the commission, a hearing examiner, or a court of competent jurisdiction finds the charges to be untrue or unfounded, the person shall immediately be restored to the same classification, or its equivalent, that the person held before appointment. The person has all the rights and privileges of the prior position according to seniority, and shall be repaid for any lost wages.

Id. § 143.014(h) (emphasis added). In addition to providing for the right to a hearing, Section 143.014(h) specifies what decision the hearing examiner must render if charges against the officer are found to be untrue: the officer must be “restored” to the same or an equivalent classification as the position the officer held before being appointed to the position just below department head. The section thus provides the limit of a hearing officer’s jurisdiction if the examiner finds the charges to be untrue, but it does not specify what decisions can be rendered if the charges are found to be true. In contrast, Sections 143.053(e) and (f) specify the decisions that a hearing examiner may render and necessarily establish the hearing examiner’s jurisdiction when the charges against an officer are found to be true. First, the suspended officer may be dismissed from the department. Id. § 143.053(e)(1). Second, the officer may be temporarily suspended. Id. § 143.053(e)(2). Third, the officer may be restored to the officer’s former position or status in the department’s classified service. Id. § 143.053(e)(3). The Act specifies that if the examiner finds the period of disciplinary suspension should be reduced, the examiner may reduce it. Id. § 143.053(f). Further, if the examiner’s decision is that the officer is not to be suspended or dismissed, then the only choice left to the examiner is for the officer to be “restored” to the officer’s former position or status in the department’s classified service, and the officer is entitled to wages and benefits for the actual time lost as a result of the suspension. Id.

III. Analysis

A. Reduction of Indefinite Suspension

We first consider the parts of the hearing examiner’s order reducing Kelley’s suspension from indefinite to 180 days. By reducing the suspension, the hearing examiner effectively reinstated Kelley to the police force.

The City argues that because Kelley was an assistant chief, Section 143.014(h) did not provide authority for the examiner to temporarily suspend or demote him after finding the charges against him were true; rather, the examiner was required to uphold the indefinite suspension. Kelley responds that the City is precluded from arguing that Section 143.014 prohibits a hearing examiner from reducing an assistant chiefs suspension because Chief Melis failed to cite Section 143.014 in his -written statement as a basis for the discipline. See id. § 143.052(c), (e) (requiring a department head who suspends an officer to file a written statement with the commission giving the reasons for the suspension, identifying each civil service rule allegedly violated, and describing the acts alleged to have violated each rule identified). He further asserts that the Legislature could not have reasonably intended to provide a hearing examiner with no authority to alter a suspension if the charges are determined to be true.

1. Chief Melis’s Written Statement

After suspending an officer, a department head must provide a written statement to the commission and the officer giving the reasons for the suspension. Id. § 143.052(c). The statement must point out each civil service rule allegedly violated and describe each infraction. Id. § 143.052(e) The statement must also inform the officer of the right to appeal and that the right to appeal a hearing examiner’s decision to a district court is limited. Id. §§ 143.052(d), 143.057(a). If the officer appeals, “the department head is restricted to the department head’s original written statement and charges, which may not be amended.” Id. § 143.053(c). Nothing in the Act requires the department head’s statement to specify what authority a hearing examiner has or what sections of the Act provide the hearing examiner with authority. Further, if Section 143.014(h) limits a hearing examiner’s jurisdiction, that jurisdiction cannot be expanded by a City’s failure or refusal to cite the section. See City of Pasadena, 292 S.W.3d at 21 (“[T]he City’s failure to object to an incorrect citation cannot expand the jurisdiction of a hearing examiner, any more than it could expand the jurisdiction of a trial court.”). Accordingly, when Section 143.014(h) applies, a hearing examiner cannot refuse to comply with it because it was not cited in the department head’s written statement. Chief Melis’s failure to cite Section 143.014(h) did not preclude the City’s argument that because Kelley was an assistant chief, Section 143.014(h) did not provide authority for the examiner to temporarily suspend or demote him after finding the charges against him were true.

2. Examiner Jurisdiction When the Charges are True

Had the hearing examiner found the charges against Kelley to be untrue, Section 143.014(h) required that Kelley be restored to his previous classification of commander. The logical corollary to that provision, according to the City, is that if the charges are found to be true, then the only permissible remedy must be to uphold whatever suspension was imposed. Kelley counters that the trial court and court of appeals correctly determined Section 143.014 is applicable only if the hearing examiner finds the charges to be untrue, while Section 143.053, providing for appeal of a disciplinary suspension, specifies a hearing examiner’s authority if the charges are found to be true. We agree with Kelley.

Section 143.014(h) does not address what a hearing examiner may do if the charges are found to be true. While the Act provides that persons such as Kelley do not have civil service protection, it provides that if such a person is indefinitely suspended, “the person has the same rights and privileges of a hearing before the commission in the same manner and under the same conditions as a classified employee.” Tex. Log Gov’t Code § 143.014(h) (emphasis added). When a classified employee appeals an indefinite suspension and the charges are found to be true, the Act affords a hearing examiner options as far as the discipline to be imposed. Id. § 143.053(e), (g). Nothing in the plain language of Section 143.014(h) or its context in the Act indicates that these options are not available when an assistant chief appeals. Further, the fact that the Legislature specifically restricted a hearing examiner’s authority in the case of an assistant chief if the charges are found to be untrue, but not when the charges are found to be true, indicates that the exclusion of such a restriction was intentional. See Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 193 n. 20 (Tex.2007).

We conclude that Section 143.014(h) did not limit the hearing examiner’s options with respect to disciplinary actions when he found the charges against Kelley to be true.

The City further argues that if Section 143.053 applies in this case, it limits a hearing examiner’s options to permanently dismissing an indefinitely suspended officer if the charges are found to be true because a hearing examiner has no authority to reduce an indefinite suspension to a temporary suspension. The City relies on language in Section 143.053 that a hearing examiner “shall” state which specific provision applies in rendering the decision. Tex. Loc. Gov’t Code § 143.053(e). It urges that because the context does not necessarily require a different construction and a different construction is not expressly provided for in the statute, the Legislature’s use of the word “shall” imposes a duty on the examiner. See Tex. Gov’t Code § 311.016(2). The City also argues that because Section 143.053(e) uses “or” in regard to a hearing examiner’s disciplinary options, a hearing examiner has no authority to combine disciplinary actions so the officer is both temporarily suspended and restored. Tex. Loc. Gov’t Code § 143.053(e). Under the City’s proposed construction, a hearing examiner has no authority to reduce an indefinite suspension to a temporary suspension because such action necessarily involves restoring an officer and imposing a temporary suspension. For reasons explained below, we disagree with the City’s logic, although we ultimately agree that the Act does not authorize an officer to be both suspended and “restored.”

Subchapter D of the Act authorizes two types of discipline: (1) voluntary discipline which an officer may agree to and accept and (2) involuntary discipline which may be imposed by the department head without regard to whether the officer agrees that discipline is warranted or that the discipline imposed is appropriate. Voluntary discipline includes demotion, see Section 143.054(e), suspension for a period of sixteen to ninety days, see Section 143.052(g), and uncompensated duty. See id. § 143.055(c). However, the Act provides for only one type of involuntary discipline that may be imposed by the department head: suspension for “a reasonable period not to exceed 15 calendar days or for an indefinite period.” Id. § 143.052(b); see also id. § 143.054(a), (c) (providing that a department head can recommend to the commission that an officer be involuntarily demoted, but it is the commission that decides whether to demote the officer). A suspended officer does not receive pay and does not accrue other benefits during a suspension. Id. § 143.055(e).

The Act tightly structures disciplinary procedures, outcomes, and appeal processes. Involuntary discipline of an officer by the department head may be only for violation of a civil service rule. Id. § 143.052(b). If the department head does not consider an offense serious enough to warrant imposing indefinite suspension— dismissal from the department — the only other option for involuntary discipline that the department head may impose is temporary suspension without pay for fifteen days or less. If an officer appeals from an involuntary disciplinary suspension, then the examiner hearing the appeal may suspend the officer only if the officer is found to have violated a civil service rule and only if the specific charges against the officer are found to be true. Id. § 143.053(g). The Act clearly defines the limits of two of the three decisions a hearing examiner is authorized to make: permanent dismissal or restoration to the officer’s former classified position or status with back pay and benefits. Id. § 143.053(e). The boundaries of the third decision authorized — temporary suspension without pay — are not so easily discerned. Id. § 143.053(e)(2).

If Section 143.053(e)(2), which authorizes an examiner to impose a temporary suspension, is read in isolation, it does not impose any limit on the length of a temporary suspension an examiner is authorized to impose: “In its decision, the [hearing examiner] shall state whether the suspended fire fighter or police officer is ... temporarily suspended from the department.” Id. § 143.053(e). But Section 143.053(e)(2) must be construed in context with the remainder of Subchapter D, and particularly with Section 143.052. Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004) (“We must read the statute as a whole and not just isolated portions.”). Section 143.052(b) allows the department head to impose an involuntary suspension of fifteen days or less. Tex. Loc. Gov’t Code § 143.052(b). We see no language indicating the Legislature intended to allow an independent third party hearing examiner to impose a longer temporary disciplinary suspension than the department head could impose, other than the language of Section 143.053(e)(2) itself. And we do not believe construing the statute to grant such authority would yield the reasonable result the Legislature is presumed to intend. See Tex. Gov’t Code § 311.021(3). For example, in this case the hearing examiner imposed a temporary suspension of 180 days. That is twelve times the length of the fifteen-day maximum involuntary suspension Chief Melis could have imposed on Kelley, and twice the ninety-day length of the maximum suspension on which the Act would have allowed Chief Melis and Kelley to agree. It takes little imagination to envision how suspending officers for lengthy and unpredictable time periods could disrupt operations and schedules of police departments; not to mention the difficulties that allowing unfettered leeway to third party hearing examiners pose to department discipline and morale. Moreover, interpreting Section 143.053(e)(2) to allow suspensions without any time limits invites challenge of the Act as an improper delegation of legislative authority. See City of Pasadena, 292 S.W.3d at 18-19 (explaining that if a statute “does not bind hearing examiners to definite standards for reaching decisions and instead gives them broad latitude in determining not only factual disputes but the applicable law, they become not merely independent arbiters but policy makers, which is a legislative function”).

We conclude that the Legislature intended Section 143.053(e)(2) to authorize a hearing examiner to temporarily suspend an officer for a period of fifteen days or less. Thus, when the charges against officers are found to be true, Section 143.053(e) limits a hearing examiner’s jurisdiction to imposing dismissal from the department, imposing a temporary suspension of fifteen days or less, or restoring the officer’s former position or status in the department’s classified service together with wages and benefits lost as a result of the suspension.

We next address the City’s contention that the Act does not authorize a hearing examiner to reduce an indefinite suspension because this would allow a hearing examiner to both temporarily suspend and restore an officer. As indicated above, we disagree.

First, in the section entitled “Disciplinary Suspensions,” the Act provides that a department head may suspend an officer for up to fifteen days or for an indefinite period. Tex. Loc. Gov’t Code § 143.052(b). Although an indefinite suspension is equivalent to a dismissal from the department, under the Act it is nevertheless a “suspension,” and the Act does not differentiate between an indefinite suspension and a suspension of fifteen days or less. See id. §§ 143.052, 143.053 (setting out the procedures related to a disciplinary suspension). The Act requires the hearing examiner to state whether a suspended officer is dismissed, temporarily suspended, or restored. Id. § 143.053(e). A dismissal has the same result as an indefinite suspension, yet the department head’s authority for maximum discipline is labeled an indefinite suspension, not a dismissal. We presume the Legislature intended the different descriptions for the same substantive result to indicate a difference between the two situations. See Kappus v. Kappus, 284 S.W.3d 831, 835 (Tex.2009) (“We presume the Legislature chose its words carefully and intentionally.”). That is accomplished by interpreting the phrase “indefinite suspension” to mean what it says it is: a suspension. The hearing examiner is specifically authorized to reduce a period of suspension, and the statute does not limit that authority to particular types or lengths of suspension.

Further, this Court has previously held that a civil service commission could reduce an indefinite suspension to a temporary one. Patton v. City of Grand Prairie, 686 S.W.2d 108, 109 (Tex.1985); see also Firemen’s & Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662 S.W.2d 953, 956-57 (Tex.1984) (“The Commission is charged by law with discretion to set the penalty where it finds that the charges made by the Department Head are true.”). The City asserts that the holding in Patton is no longer valid because after Patton was decided the civil service laws were amended, and such an option is no longer available. We do not agree. The Act applicable in Patton was Texas Revised Civil Statutes Article 1269m. Act of May 15, 1947, 50th Leg., R.S., ch. 325, 1947 Tex. Gen. Laws 550, amended by Act of May 3, 1951, 52d Leg., R.S., ch. 298, § 1, sec. 16, 1951 Tex. Gen. Laws 470, repealed by Act of May 1, 1987, 70th Leg., ch. 149, § 49(1), 1987 Tex. Gen. Laws 707,1307. Section 16 pertained only to indefinite suspensions while Section 20 pertained to disciplinary suspensions of up to fifteen days. Section 16 allowed for an appeal from an indefinite suspension. Like the current statutory language, its language required the commission’s decision to state whether an officer “shall” be permanently or temporarily dismissed or restored. The section allowed for the commission to reduce an indefinite suspension to a temporary suspension. Patton, 686 S.W.2d at 109. In 1983 when the Legislature amended the Act, it combined indefinite suspensions and temporary suspensions into one section and, in similar fashion to the current statute, did not differentiate between appeals from indefinite and temporary suspensions. Act of May 30, 1983, 68th Leg., R.S., ch. 420, §§ 7-9, sec. 16, 1983 Tex. Gen. Laws 2246, 2260-68 (repealed 1987). The statute again specified that in its decision the commission “shall” state whether the officer was permanently dismissed, temporarily suspended, or restored. Act of May 30, 1983, 68th Leg., R.S., ch. 420, § 7, sec. 16, 1983 Tex. Gen. Laws 2246, 2261 (repealed 1987). The Act was later nonsubstantively recodified to the current version at issue here. Act of May 1, 1987, 70th Leg., R.S., ch. 149, sec. 1, 1987 Tex, Gen. Laws 707, 910-917 (current version at Tex. Loc. Gov’t Code § 143.053). Nothing in the current language of the statute or the legislative history indicates legislative intent to change the disciplinary options that were originally available to the commission in cases of indefinite suspensions.

On the other hand, we agree with the City that the Act differentiates between a suspension and a restoration. A suspended officer cannot be paid or accrue benefits: “A police officer may not earn or accrue any wage, salary, or benefit arising from length of service while the person is suspended or performing uncompensated duty.” Tex. Loc. Gov’t Code § 143.055(e). When Section 143.053(f) is read in context with Section 143.055(e) and both are given meaning, the Legislature’s intent when using the term “restored” in Section 143.053 becomes clearer. It references situations in which an officer is returned to duty without any suspension, and the return to duty is without any loss of pay or benefits:

If the commission finds that the period of disciplinary suspension should be reduced, the commission may order a reduction in the period of suspension. If the suspended fire fighter or police officer is restored to the position or class of service from which the person was suspended, the fire fighter or police officer is entitled to:
(1) full compensation for the actual time lost as a result of the suspension at the rate of pay provided for the position or class of service from which the person was suspended; and
(2) restoration of or credit for any other benefits lost as a result of the suspension, including sick leave, vacation leave, and service credit in a retirement system.

Id. § 143.053(f). Thus, the Act does not authorize a hearing examiner to both “restore” an officer while at the same time suspending the officer, even if the officer’s suspension is reduced from that imposed by the department head.

In sum, the examiner did not exceed his jurisdiction by reducing Kelley’s indefinite suspension. However, the temporary suspension imposed on Kelley was for 180 days. The Act does not authorize a hearing examiner to impose a temporary suspension of more than fifteen days, and the hearing examiner exceeded his jurisdiction by ordering a 180-day suspension.

B. Back Pay and Benefits

The City also asserts that the hearing examiner exceeded his authority by awarding Kelley back pay and benefits by directing that Kelley be “made whole subject to the normal principles of mitigation.” The City argues that for persons who are categorized as directly beneath the department head, a back pay award under Section 143.014(h) is only authorized if the hearing examiner finds the charges to be untrue. As we have previously noted, however, Section 143.014(h) does not address a hearing examiner’s authority when the charges are found to be true, as they were in this case, so it is inapplicable.

The City next asserts that the hearing examiner had no authority to award Kelley back pay or lost benefits because back pay and benefits may only be awarded to an officer who is restored to the officer’s previous rank or status, and Kelley was not. We agree that Section 143.053(f)(1) requires a restored officer to be compensated for the time lost as a result of the suspension: “If the suspended fire fighter or police officer is restored ... [the] officer is entitled to: (1) full compensation for the actual time lost as a result of the suspension ... and (2) restoration of or credit for any other benefits lost as a result of the suspension....” Id. The Act does not reference compensation for officers whose suspensions are reduced by a hearing examiner, but who are nevertheless disciplined by being suspended for some period of time. And the Act specifically limits an officer’s compensation while suspended: “A police officer may not earn or accrue any wage, salary, or benefit ... while the person is suspended.... ” Id. § 143.055(e). Thus, the hearing examiner exceeded his jurisdiction by ordering back pay and benefits to the extent they were awarded for any time during which Kelley was suspended, but to the extent the hearing examiner’s decision awarded Kelley back pay and benefits for the period after his temporary suspension, the examiner did not abuse his discretion.

C. Demotion

The Act specifies that involuntary demotion can be recommended by the department head but must be accomplished by the commission. Id. § 143.054. Section 143.057 allows an officer to appeal a recommendation for demotion to a hearing examiner instead of the commission, but there is no provision in the statute authorizing a hearing examiner to demote an officer when the department head has not recommended a demotion.

The Act authorizes a hearing examiner to make a ruling comparable to demotion when charges against a person classified immediately below the department head are found to be untrue and the person must be restored to the last classified position. Id. § 143.014. But that action is not in the nature of a disciplinary demotion; it is in the nature of a “restoration” which requires the officer to be paid or credited for any wages and other benefits lost as a result of the suspension. See id. §§ 143.014(h), 143.053(f). Further, that action is specifically mandated by the Act. The procedure for demoting an officer in other situations is also specifically spelled out by the Act. The Act provides that the department head must recommend a demotion in writing to the commission. Id. § 143.054. The recommendation letter must include the reasons for the demotion and be furnished to the affected officer, and the commission shall give the officer written notice to appear for a public hearing. Id.

Here, Kelley was demoted to sergeant absent Chief Melis’s recommendation and as part of discipline imposed by the examiner. That action was not authorized by the Act. The court of appeals concluded that the hearing examiner exceeded his jurisdiction by demoting Kelley. The parties agree with the court of appeals, and so do we.

IV. Court Proceedings

A. The Record on Appeal

Kelley points out that a non-prevailing party seeking to modify or vacate the examiner’s award bears the burden to bring a complete record on appeal that establishes its basis for relief. He urges that because the City failed to provide a transcript of the first day of the hearing as part of the record on appeal, the award of the hearing examiner must be affirmed. However, our conclusion that the City is entitled to relief is based on the fact that the hearing examiner exceeded his jurisdiction by the relief he granted. Our decision does not depend on evidence presented at the hearing or how it was conducted; it depends on the examiner’s award. The presence or absence of part of the hearing transcript is not material to our decision, so we need not and do not address this contention.

B. Attorney’s Fees

Because we determine that (1) the hearing examiner exceeded his jurisdiction, (2) the court of appeals erred in failing to reverse the trial court’s summary judgment in favor of Kelley, and (3) the case is to be remanded, we ordinarily would not reach and address the City’s challenge to the trial court’s award of attorney’s fees and the court of appeals’ judgment affirming the award. But because the matter is to be remanded for further proceedings, it is appropriate for us to address the question. See Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 81 (Tex.1997) (“Although resolution of this issue is not essential to our disposition of this case, we address it to provide the trial court with guidance in the retrial....”).

The City contends attorney’s fees are recoverable only pursuant to statute or contract and the trial court had no authority to award attorney’s fees to Kelley. We agree.

Section 143.015 of the Act provides that an officer may appeal a commission decision to district court. Tex. Loc. Gov’t Code § 143.015. Section 143.057(j) provides for appeal of a hearing examiner’s decision to district court. Id. § 143.057(j). The two appeal provisions are not linked, and the appeal procedures and review authority granted the district court in the two types of appeals are different. For example, appeal from a commission decision is for trial de novo, see section 143.015(b), while appeal from a hearing examiner’s decision is limited to grounds that the examiner was without jurisdiction, exceeded his jurisdiction, or that the examiner’s order was procured by fraud, collusion, or other unlawful means. Id. § 143.057(j). Section 143.015(c) specifies that in an appeal from a commission decision, the court may award attorney’s fees to the prevailing party. Id. § 143.015(c). Kelley does not refer us to any part of the statute authorizing the trial court to awai'd attorney’s fees in an appeal from a hearing examiner’s decision, and we find none. Absent statutory authority for the trial court to award attorney’s fees, we hold the trial court erred in awarding them to Kelley and the court of appeals erred in affirming the award.

Y. Relief

The City asserts that because the hearing examiner exceeded his jurisdiction, the court of appeals should have vacated the award. Even though the court of appeals agreed that the hearing examiner exceeded his jurisdiction by demoting Kelley to sergeant, the court parsed the remaining parts of the examiner’s decision and upheld other parts of the decision that it determined complied with the Act. 226 S.W.3d at 681. We disagree with that approach.

As we noted in City of Pasadena, 292 S.W.3d at 19, the statutory language in Section 143.057(j), allowing for an appeal from a hearing examiner’s decision, is similar to the language regarding appeals in the Texas General Arbitration Act. In an appeal from an arbitration award, if a portion of the award is invalid, the other portion will be unaffected only if the two parts are so distinct and independent that the valid part will truly express the judgment of the arbitrator. Gulf Oil Corp. v. Guidry, 160 Tex. 139, 327 S.W.2d 406, 409 (1959). But if an invalid portion is not severable and distinct so that the remaining valid part of the award truly expresses the arbitrator’s judgment, the entire award is void. Id. We believe the same reasoning applies to an appeal from a hearing examiner’s decision. If a portion of the hearing examiner’s decision is void because the examiner exceeded his jurisdiction, as he did in this case, the entire decision is invalid unless the invalid portion is severable and distinct so that the valid portion still truly expresses the examiner’s judgment. Here, we have no doubt that the invalidity of Kelley’s 180-day suspension and demotion are not so independent from the remainder of the examiner’s decision that the remainder of the decision truly expresses the examiner’s judgment. The examiner’s written decision makes it clear that he believed Kelley should be disciplined. If the hearing examiner’s decision to set aside Kelley’s indefinite suspension is upheld but Kelley’s demotion and suspension are set aside, the result would be that Kelley suffered no discipline at all. That would not truly reflect the judgment of the examiner, so the entire decision must be vacated.

The City asserts that under Kirkwood v. Corsicana, 871 S.W.2d 544 (Tex.App.-Waco 1994, no writ), a new hearing should not be ordered because the hearing examiner no longer has jurisdiction. In Kirkwood, the court of appeals held that pursuant to Texas Local Government Code Section 143.053(b), a trial court’s order remanding a matter to the commission for further proceedings was invalid because the commission did not have jurisdiction to take action on the matter more than thirty days after the commission received the officer’s appeal. See id. at 546-47; see also Tex. Loc. Gov’t Code § 143.053(b) (providing that the commission shall hold a hearing and render a decision in writing within thirty days after the date it receives an officer’s notice of appeal). Because this case involves an appeal from a hearing examiner’s decision, Section 143.053 and Kirkwood are inapplicable. Section 143.057(h) provides a thirty-day time requirement for a hearing examiner to render a decision, but it also says “[t]he hearing examiner’s inability to meet the time requirements imposed by this section does not affect the hearing examiner’s jurisdiction .... ” Tex. Loc. Gov’t Code § 143.057(h). Therefore, a hearing examiner does not lose jurisdiction after thirty days, and remand for a new hearing is not precluded by that section, even if we were to apply Kirkwood’s reasoning. See In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex.2009).

Further, when a commission decision is appealed to a district court, Section 143.015(b) specifies that the appeal is de novo and the district court “may grant the appropriate legal or equitable relief necessary to carry out the purposes of this chapter.” Tex. Loc. Gov’t Code § 143.015(b). Appeals from the decision of a hearing examiner are different. In an appeal from a hearing examiner’s decision, the district court may hear an appeal only on the grounds that the examiner “was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means.” Id. § 143.057(j). The statute does not specify that in considering an appeal from a hearing examiner’s decision the district court may grant appropriate legal or equitable relief as it does for an appeal from a commission decision; the statute simply does not address what type of relief may be granted. But it is clear that the Legislature intended for the hearing examiner’s decision to be determinative of the officer’s appeal, so in some instances the only reasonable relief is a new hearing. For example, if the examiner’s decision was procured by fraud, collusion, or other unlawful means, then it is hard to see any proper relief other than the decision being vacated and a new hearing ordered. And as this case demonstrates, when part of the examiner’s decision exceeds his jurisdiction, the true judgment of the hearing examiner might be negated by enforcing only part of the decision. Such results are not reasonable in light of the Act as a whole, and we do not attribute unreasonable intentions to the Legislature. See Tex. Gov’t Code § 311.021(3). Accordingly, the appropriate remedy in situations such as this is for the hearing examiner’s decision to be vacated and a rehearing to take place.

VI. Conclusion

The judgment of the court of appeals is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion.

      . The Act provides that civil service systems may be provided for fire fighters and police officers. We reference police officers for convenience and ease of reference.

      . Statutory references will be to the Local Government Code unless otherwise noted,

      . Officers in Waco’s police department are ranked, in descending order, as chief (the department head), assistant chief, commander, sergeant and officer. The hearing examiner specifically rejected demoting Kelley only one step to commander or three steps to officer.

      . The court of appeals noted that the parties considered the hearing examiner's directive that Kelley be "made whole” to order only that he be paid wages and benefits for the period of time after his 180-day suspension ended. 226 S.W.3d 672, 680. The parties do not take a position on the issue in this court.

      . For example, in City of Laredo v. Leal, 161 S.W.3d 558, 561 (Tex.App.-San Antonio 2004, pet. denied), a hearing examiner reduced an indefinite suspension to a 644-day temporary suspension.

      . We are mindful of, but need not address in this case, the differing nondelegation concerns between the commission and independent third party hearing examiners.


source: Caselaw Access Project

author: JOHNSON, J., KEASLER, J.,

license: Public Domain

text:
    Kenneth Lee MAYER, Appellant, v. The STATE of Texas.
    No. PD-0069-09.
    Court of Criminal Appeals of Texas.
    March 24, 2010.
    Rehearing Denied May 19, 2010.

      John Bennett, Amarillo, for Appellant.
    Charles Cambell, Asst. State Prosecuting Atty., Jeffrey L. VanHorn, State’s Atty., Austin, for State.
   OPINION

JOHNSON, J.,

delivered the opinion of the Court

in which PRICE, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

A jury found appellant guilty of aggravated kidnapping and assessed punishment at thirty-years’ incarceration. Appellant appealed. The court of appeals overruled his first issue on appeal, sustained his second issue — repayment of appointed attorney fees, modified the trial court’s judgment, and affirmed it as modified. Mayer v. State, 274 S.W.3d 898, 902 (Tex.App.-Amarillo 2008). We refused appellant’s petition for discretionary review, but granted review of the two grounds raised by the state prosecuting attorney’s petition.

After discharging the jury, the trial court announced the jury’s verdict of guilt and assessment of punishment and informed appellant that he “shall pay the Court costs in this case and the Court-appointed attorney’s fees that are incurred by Swisher County, Texas in [his] defense.” In the written judgment, the trial court ordered appellant to reimburse the county for court-appointed-attorney fees in the amount of $2,850.

On appeal, appellant included claims complaining about the trial court ordering him to reimburse the county for court-appointed-attorney fees. The court of appeals noted that, under article 26.05(g), “the trial court has authority to order reimbursement of appointed attorney fees if the court determines that a defendant has financial resources that enable him to offset, in part or in whole, the costs of the legal services provided.” Mayer v. State, 274 S.W.3d at 901. It also noted that the record “does not contain any such determination or finding by the trial court that appellant had any financial resources or was ‘able to pay’ the appointed attorney fees.” Id. It also pointed to evidence in the record that “demonstrate[d] that, before trial and within two months of the conclusion of the trial, appellant was indigent and qualified for court appointed counsel.” Id. It concluded that, in the absence of “evidence to demonstrate appellant’s financial resources to offset the costs of the legal services, the trial court erred in ordering reimbursement of appointed attorney fees.” Id. We affirm the judgment of the court of appeals.

The state’s first ground for review asserts that appellant procedurally defaulted the issue of attorney-fee reimbursement because he did not object in the trial court and that the court of appeals erred in reaching that issue for the first time on appeal. It argues that appellant had an obligation to “either make a trial objection on the record or complain in a motion for new trial concerning court-ordered reimbursement of attorney’s fees[,]” and that by failing to do so, he may not complain on appeal. (State’s Brief, p. 3.)

We observe that appellant filed a pre-indictment “Affidavit of Financial Status,” which included a request for the court to appoint an attorney to represent him in this case because he did not have the financial ability to hire his own attorney. After review of the affidavit, the trial court found that appellant was indigent and appointed an attorney to represent him at trial.

The state acknowledges that this affidavit reflects that appellant was unemployed and supporting himself on government-sponsored benefits and that he was given a court-appointed trial counsel. The state also acknowledges that appellant “filed a pro se notice of appeal and an affidavit of financial status in support of a request for appellate counsel, and that he was indeed given the assistance of appellate counsel.” (State’s Brief, p. 4.) Nevertheless, the state notes that neither appellant nor his attorneys lodged any objection or complaint in the trial court to either the fact or the amount of restitution for attorney’s fees ordered reimbursed to the county nor made any such objection in a motion for new trial.

The state argues that appellant’s failure to object to the trial court’s order to repay attorney fees is governed by our holding in Idowu v. State, 73 S.W.3d 918, 921 (Tex.Crim.App.2002), that if a defendant wishes to complain about the propriety of, as opposed to the factual basis for, a trial court’s restitution order, he must explicitly do so in the trial court. The state also compares appellant’s failure to object to a situation in which an appellant first challenges on appeal probation conditions that may be unreasonable, unconstitutional, or violative of statutory provisions. It points to Speth v. State, 6 S.W.3d 530, 534 (Tex.Crim.App.1999), in which we held that “[a] defendant who benefits from the contractual privilege of probation ... must complain at trial to conditions he finds objectionable.”

In his response to the state’s petition, appellant does not challenge the propriety of assessing attorney’s fees, but argues here, as he did in the court of appeals, that a challenge to the factual basis of a restitution order or an order to pay court-appointed-attorney fees is a challenge to the sufficiency of the evidence regarding that order, that before the court of appeals he claimed that the evidence to support the attorney-fee order was insufficient, and that the court of appeals correctly recognized it as insufficient. He notes the well-settled principle “that evidentiary sufficiency challenges do not require objection to be considered on appeal.” (Appellant’s Brief, p. 2.)

This Court has stated in the past that “[a]n appellate court must always address challenges to the [legal] sufficiency of the evidence.” McFarland v. State, 930 S.W.2d 99 at 100 (Tex.Crim.App.1996) (citing Texas Rule of Appellate Procedure 90(a), now Rule 47.1, and Garza v. State, 715 S.W.2d 642 (Tex.Crim.App.1986)). A claim regarding sufficiency of the evidence need not be preserved for review at the trial level and is not waived by the failure to do so. See Proctor v. State, 967 S.W.2d 840, 842 (Tex.Crim.App.1998); Lemell v. State, 915 S.W.2d 486, 490 (Tex.Crim.App.1995) (citing McGlothlin v. State, 896 S.W.2d 183, 190-91 (Tex.Crim.App.1995) (Meyers, J., dissenting)); GEORGE E. DIX AND ROBERT O. DAWSON, 40 TEXAS PRACTICE, CRIMINAL PRACTICE AND PROCEDURE § 3.65 (2000 Supplement).

Rankin v. State, 46 S.W.3d 899, 901 (Tex.Crim.App.2001).

Appellant “concedes that no objection was made to the requirement that he pay court-appointed attorney fees.” Appellant points to our language in Idowu, supra, “We ordinarily allow defendants to raise sufficiency of the evidence questions for the first time on appeal. Whether the record provides a sufficient factual basis for a particular restitution order could be considered an evidentiary sufficiency question that need not be preserved by objection at the trial level.” Idowu v. State, 73 S.W.3d at 922. We also said that whether a party must object to preserve an eviden-tiary-sufficiency claim concerning a restitution order, or the amount of restitution, need not be resolved in Idowu. Id. Two years later, we addressed that point, saying that “a claim regarding sufficiency of the evidence need not be preserved for appellate review at the trial level, and it is not forfeited by the failure to do so.” Moff v. State, 131 S.W.3d 485, 489 (Tex.Crim.App.2004). Appellant also cites opinions from courts of appeals for the proposition that no trial-court objection is required to raise an appellate complaint about court-appointed-attorney fees.

Appellant also suggests that the Amarillo Court of Appeals properly understood his direct-appeal point of error to be one of insufficient evidence and deleted the attorney fees on that basis. He points to the language in the court of appeals’s opinion.

[TJhere is an absence of evidence to demonstrate that, at the conclusion of the trial, appellant was “able to pay” or had financial resources that would enable appellant to offset, in part or in whole, the costs of the legal services provided to him.... Without evidence to demonstrate appellant’s financial resources to offset the costs of the legal services, the trial court erred in ordering reimbursement of appointed attorney fees, [citations omitted.] Accordingly, we modify the judgment to delete the [attorney fees],

Mayer v. State, 274 S.W.3d at 901.

The court of appeals properly analyzed appellant’s point of error that complained about the lack of record evidence of “sufficient inquiry” into appellant’s finances that would justify the trial court’s determination that appellant should be ordered to pay court-appointed-attorney fees. The court of appeals pointed out that appellant’s reply brief, which was filed after the state had filed its response brief on direct appeal, conceded “the sufficiency of the evidence” of the amount of the court-ordered reimbursement of attorney fees after becoming aware of the itemized expense form that had been submitted to the trial court after the conclusion of the trial and filed as a supplemental clerk’s record after the filing of appellant’s original brief. Mayer, supra, at 900, n. 1. However, appellant also argued that the record was “devoid of any evidence of how the fee was calculated and whether his indigence prevented such a finding,” thus including an assertion of evidentiary insufficiency regarding the factual basis for finding that he had financial resources that would enable him to reimburse the costs of the legal services provided. (Appellant’s brief before the court of appeals, p. 8.)

Appellant also raised a point of error specifically questioning whether the record contained “sufficient inquiry” into his finances to allow him to be ordered to pay court-appointed-attorney fees. Appellant’s reply brief to the state’s response brief notes that, after reviewing his financial affidavit, the trial court had initially found him to be indigent and qualified for appointed counsel, and appellant asserts that “no evidence” of a change of financial ability existed. (Appellant’s reply brief before the court of appeals, p. 5.) That reply also specifically argued that since “no evidence” showed that appellant was able to pay appointed-attorney fees, the order requiring him to do so could not stand. Id. at 6.

The court of appeals referred to the provisions of article 26.05(g) as authorization for the trial court to order the defendant to repay the costs of court-appointed legal counsel. Specifically, article 26.05(g) provides that, if the trial court determines that a defendant has the financial resources that enable him to offset in whole or in part the costs of the legal services provided, the court shall order him to pay, as court costs, the amount that it finds the defendant is able to pay. Thus the defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s determination of the propriety of ordering reimbursement of costs and fees.

Appellant’s claims before the court of appeals included assertions of insufficient evidence of his financial resources and ability to pay. While this claim of evidentiary insufficiency differs somewhat from a claim of insufficient evidence of guilt, we note that an objection at trial is not necessary before making an appellate challenge to the sufficiency of the evidence concerning a deadly weapon finding because “[a] claim regarding sufficiency of the evidence need not be preserved for review at the trial level and is not waived by the failure to do so.” Rankin v. State, 46 S.W.3d 899, 901 (Tex.Crim.App.2001). We conclude that appellant’s complaint about the sufficiency of evidence of his financial resources and ability to pay were likewise not waived by his failure to raise such a complaint at trial. We reiterate that no trial objection is required to preserve an appellate claim of insufficient evidence, thus the court of appeals did not err in addressing appellant’s complaint about the order to reimburse court-appointed attorney fees. Accordingly, we overrule ground one.

The state’s second ground complains about the court of appeals deciding the indigent status of appellant as it existed at the time of trial without remanding the case to the trial court to give the state an opportunity to be heard on the issue in the trial court and to give the trial court an opportunity to decide the issue. It insists that neither it nor the trial court should be excluded from the decision-making process of whether a defendant has the financial means to reimburse a county for attorney’s fees expended on the defendant’s behalf. It further complains that the court of appeals’s decision was made before the state had an opportunity to test appellant’s financial status “in the crucible of the adversarial process.” (State’s Brief, p. 3.)

The state acknowledges that this case “is not about whether Appellant is indigent and therefore too poor to hire a lawyer or too poor to reimburse Swisher County for attorney’s fees already expended by the County.” (State’s Brief, p. 8.) The state is not contending that appellant was not indigent, but takes issue with the court of appeals making a presumption of indigence when the trial court is the proper forum for such a finding. (State’s Brief, p. 6.)

The state contends that a remand order to the trial court would be appropriate so that the trial court could hear evidence and make the decision whether, and what amount of money, appellant should reimburse the county for attorney fees, and so the state has an opportunity, if it so desires, to contest whatever evidence or arguments appellant employs against the trial court’s order, and to present evidence and arguments in support of its own position. It analogizes such a remand to cases in which the amount of restitution ordered as a lawful condition of community supervision is not supported by the record and remanding for the purposes of a restitution hearing is appropriate.

Appellant argues that the court of appeals, in finding that the evidence to support the order to repay attorney fees was absent, ruled that the evidence was legally insufficient to justify the order. He also asserts that the state’s brief points to no facts in the record indicating that he could pay those fees and was not necessarily contending that he was not indigent. Appellant also suggests that a remand would be pointless because the trial court appointed counsel at trial and, after appellant’s conviction, appointed another attorney to represent him on appeal. He asserts that the trial court has thus already twice decided that appellant is indigent and without the financial ability to pay and, since he was sentenced to thirty-years’ incarceration-a term that bars release on bail-the trial court has already “judged that [he] could not have had measurably more financial ability to pay at the time of trial than immediately after indictment.” (Appellant’s Brief, p. 9.) We also observe that article 26.04(p), provides that “[a] defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial circumstances occurs.”

When claims of insufficient evidence are made, the cases are not usually remanded to permit supplementation of the record to make up for alleged deficiencies in the record evidence. Sufficiency of the evidence is measured by viewing all of the record evidence in the light most favorable to the verdict. In this case, there is no indication that the state was precluded from presenting evidence and being heard on the issue of appellant’s financial resources and ability to pay for reimbursement of the court-appointed-attorney fees. We are unconvinced that the court of appeals committed any error in determining that the trial court erred in ordering reimbursement of attorney fees without remanding the case to the trial court. We therefore overrule ground two.

The judgment of the court of appeals is affirmed.

KEASLER, J., filed a dissenting opinion in which KELLER, P.J., MEYERS, and WOMACK, JJ., joined.

KEASLER, J.,

filed a dissenting opinion in which KELLER, P.J., MEYERS, and WOMACK, JJ., joined.

The court of appeals in this case did not address whether a challenge to the reimbursement order could be raised for the first time on appeal when Kenneth Lee Mayer failed to object to the order in the trial court. Preservation of error is a systemic requirement, and the courts of appeals are obligated to consider whether each point of error raised on appeal is subject to preservation requirements, and if so, whether the point of error was properly preserved. I disagree with the majority’s contention that Mayer raised a legal sufficiency claim. As evidenced by the briefs before us, the exact nature of the issue raised by Mayer is hotly contested. It is also debatable whether a sufficiency review is appropriate in this case. The preservation issue here is unsettled, so we should give the court of appeals the opportunity to address this issue in the first instance. I would vacate the court of appeals’s judgment and summarily remand the case to the court of appeals so that it could determine whether Mayer was required to preserve his complaint about the reimbursement order.

      . 1. "The Court of Appeals erred in reaching the attorney fee reimbursement issue for the first time on appeal, when no objection whatsoever was made by appellant at the trial court level, resulting in a procedural default.
      "2. The Court of Appeals erred in deciding the indigent status of appellant as it existed at the time of trial without remanding the case to the trial court to give the State an opportunity to be heard on this issue in the trial court, and to give the trial court an opportunity to decide the issue. The Court below has decided an important question of law that has not been, but should be settled by this Court.”

      . Tex.Code Crim. Proc., art. 26.05(g)

      . "Appellant now appeals ... the sufficiency of the court order for the reimbursement of the court appointed attorney fees.” Mayer v. State, 274 S.W.3d at 899-900.

      . "Under article 26.05(g) of the Texas Code of Criminal Procedure, the trial court has authority to order reimbursement of appointed attorney fees if the court determines that a defendant has financial resources that enable him to offset, in part or in whole, the costs of the legal services provided.... Without evidence to demonstrate appellant's financial resources to offset the costs of the legal services, the trial court erred in ordering reimbursement of appointed attorney fees." Id. at 901.

      . We presume that the court of appeals knows that preservation is a systemic requirement and that it is obligated to consider whether the errors complained of were forfeited because of failure to preserve the error. The court of appeals decided this case on the merits of the insufficiency claim, and so we presume that it impliedly found that appellant’s ground raised legal insufficiency and such a claim may be raised for the first lime on appeal.

      . Tex.Code Crim Proc. art. 26.05(g)

      . See Wilson v. State, - S.W.3d -, - - (Tex.Crim.App.2010) (Keasler, J., dissenting); Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex.Crim.App.1997) ("Preservation of error is a systemic requirement that a first-level appellate court should ordinarily review on its own motion.").

      . See Idowu v. State, 73 S.W.3d 918, 921 (Tex.Crim.App.2002) ("If a defendant wishes to complain about the appropriateness of (as opposed to the factual basis for) a trial court’s restitution order, he must do so in the trial court, and must do so explicitly.”).

      . See e.g., Speth v. State, 6 S.W.3d 530, 531 n. 1 (Tex.Crim.App.1999) (stating that imposition of probation conditions is not appropriate for a sufficiency review).

      . Bledsoe v. State, 178 S.W.3d 824, 826 (Tex.Crim.App.2005) (Texas Rule of Appellate Procedure 47.1 requires courts of appeals to address every issue raised and necessary to the final disposition of the case in its opinions).


author: KEASLER, J.,

text:
    Claude Wayne CHADWICK, Appellant, v. The STATE of Texas.
    Nos. PD-0250-09, PD-0251-09.
    Court of Criminal Appeals of Texas.
    May 5, 2010.

      Erika Copeland, Abilene, for Appellant.
    John Best, Asst. Dist. Atty., San Angelo, Jeffrey L. Van Horn, State’s Atty., Austin, for State.
   OPINION

KEASLER, J.,

delivered the unanimous opinion of the Court.

Claude Wayne Chadwick complained on appeal that the trial judge improperly refused to allow him to proceed pro se after his competency to stand trial was restored. The Third Court of Appeals affirmed the trial judge’s ruling. Chadwick now argues that the court of appeals erred in its application of the United States Supreme Court’s recent decision in Indiana v. Edwards and by implying findings of fact supporting the trial judge’s ruling. We disagree and affirm the court of appeals’s judgment.

Background

Chadwick was charged with assault on a public servant and attempting to take a weapon from a peace officer. The trial judge found that Chadwick was incompetent to stand trial and ordered Chadwick to be committed to a state hospital. When Chadwick’s competency was restored approximately two and a half years later, he was transferred back to the county’s custody and brought to trial. At trial, Chadwick asserted his right to self-representation, but the judge denied his request. Chadwick was represented by appointed counsel at trial. The jury found Chadwick guilty of both offenses and assessed his punishment at fifty and twenty years’ confinement, respectively.

Court of Appeals

The Third Court of Appeals affirmed the trial judge’s ruling. Citing Indiana v. Edwards, the court held that the trial judge “could have reasonably concluded that Chadwick was not competent to represent himself and that, if he had been allowed to do so, he would not have been able to receive a fair trial.” The court further held that there was sufficient evidence in the record to support the trial judge’s finding that Chadwick was incompetent to represent himself.

Law

In 1960, the United States Supreme Court decided Dusky v. United States, in which it defined the constitutional standard for competence to stand trial: “[1] whether [the accused] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and [2] whether he has a rational as well as factual understanding of the proceedings against him.” Fifteen years later, in Faretta v. California, the Court considered whether a defendant in a state criminal trial has a constitutional right to proceed pro se when the defendant voluntarily and intelligently elects to do so. The Court concluded that the Sixth and Fourteenth Amendments to the federal Constitution prohibit the State from “halting] a person into its criminal courts and there forcing] a lawyer upon him, even when he insists that he wants to conduct his own defense.” And in 1993, the Court held that the standard for waiving the right to counsel is no higher than for competency to stand trial in Godinez v. Moran.

Less than two years ago, in Indiana v. Edwards, the Court built on Dusky, Faretta, and Godinez. In Edwards, the Court considered the issue now before us—whether the federal Constitution requires a state trial judge to allow a mentally ill defendant, upon request, to proceed pro se at trial. The Court noted that it had not addressed the “relation of the mental competence standard to the right of self-representation” in its previous eases. Ultimately, the Court recognized a “mental-illness-related limitation on the scope of the self-representation right.” It held that

the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.

In reaching this conclusion, the Court took into account the erratic character of mental illness and determined that “the trial judge ... will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant.”

In deciding Edwards, the Court specifically declined to overrule Faretta. It also declined to adopt the more specific standard proposed by Indiana, stating that such a standard would “deny a criminal defendant the right to represent himself at trial where the defendant cannot communicate coherently with the court or a jury.” The Court held “only that the lack of mental competence can under some circumstances form a basis for denying the right to proceed pro se.”

As the Supreme Court noted in Edwards, the trial judge is in the best position to make the decision of whether a mentally ill defendant is competent to proceed pro se. Accordingly, since this is a mixed question of law and fact that turns on an evaluation of credibility and demean- or, we review the trial judge’s ruling for an abuse of discretion. We afford almost total deference to a trial judge’s rulings on mixed questions of law and fact when the resolution of the issue turns on an evaluation of credibility and demeanor. We view the evidence in the light most favorable to the trial judge’s ruling. And we will imply any findings of fact supported by the evidence and necessary to support the trial judge’s ruling when the judge failed to make explicit findings.

Analysis

Chadwick mounts a two-part challenge to the court of appeals’s analysis. First, Chadwick argues that the court of appeals’s holding is “tantamount to holding that Indiana v. Edwards overruled Faretta v. California.” Second, Chadwick argues that the court of appeals erred by implying findings of fact that he was not competent to represent himself. He argues that the evidence did not support such a finding that he was incompetent to represent himself.

We conclude that the court of appeals did not err. As noted above, the court did not hold that Edwards overruled Faretta. To the contrary, the court noted at the outset Faretta’s rule that defendants have a right of self-representation. The court then correctly observed that Edwards controlled the case, and that under Edwards, the individual States may insist that a defendant who is competent to stand trial — but incompetent to conduct his or her own defense — be represented by counsel.

Chadwick’s argument — that the trial judge erred by refusing to allow him to represent himself because the judge did not enter a finding of fact that he was incompetent to do so — is also without merit. As noted above, the law requires appellate courts to imply any findings of fact supported by the evidence and necessary to uphold the trial judge’s ruling if they are not contrary to any specific factfind-ings. Chadwick presents no authority to the contrary. The evidence in this case supported implied findings of fact that Chadwick’s mental illness was severe enough to render him incompetent to proceed pro se, even though the trial judge deemed competent him to stand trial.

The trial judge held a pretrial hearing on August 28, 2007. In addition to his own motions, Chadwick’s counsel adopted Chadwick’s pro se motions. During the course of the hearing, Chadwick interrupted his attorney several times. Chadwick objected several times, even as the judge granted the motions filed by his attorney. After several interruptions, the judge told Chadwick to let his attorney speak for him.

At the end of the pretrial hearing on August 28th, Chadwick, apparently dissatisfied with the hearing, asked the judge, “Would it be inappropriate to curse you with every Israeli curse there is?” Chadwick’s counsel advised him that it would be. Chadwick ignored the advice and stated, “May Yaweh curse you till the end and may I put an eternal indictment on you and I will prosecute you to eternity.”

On September 10th, the day trial was to begin, Chadwick refused to come to court. The judge, the prosecutor, and Chadwick’s attorney engaged in a lengthy debate over how to proceed in Chadwick’s absence. Chadwick eventually came without incident, but only after he was permitted to make a video in the county jail documenting various grievances. Once in the courtroom, Chadwick immediately asserted his right to represent himself. He then engaged in a rambling monologue in which he launched personal attacks on the prosecutor, the judge, the bailiffs, judges from prior cases, and his attorney. The trial judge denied Chadwick’s request to represent himself, noting on the docket sheet that he “could not properly conduct trial with Defendant representing himself.”

The court of appeals observed that, in addition to the trial judge’s observations of Chadwick’s conduct in the courtroom, there were several incoherent pro se written motions. Some were filed before Chadwick’s competency was restored, and therefore, unless re-urged after he was found competent, would not be indicative of his ability to represent himself. But in this case, Chadwick did request that his attorney adopt the motions; they may therefore be considered to support the conclusion of the trial judge.

Given the evidence in the record of Chadwick’s behavior before the trial judge, his refusal to come to court the first day of trial, and the incoherent pro se motions, and viewing the evidence in the light most favorable to the trial judge’s ruling, we conclude that the judge did not abuse his discretion. We further hold that the court of appeals did not err in implying findings of fact supporting the trial judge’s decision to deny Chadwick’s request to represent himself.

Conclusion

We conclude that the trial judge’s ruling was not an abuse of discretion, and that the court of appeals did not err in implying findings of fact supporting the judge’s ruling. We therefore affirm the judgment of the court of appeals.

      . See Tex. Penal Code Ann. §§ 22.01(b)(1), 38.14(b) (Vernon 2003).

      . Chadwick v. State, 277 S.W.3d 99, 102-03 (Tex.App.-Austin 2009).

      . 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008).

      . Chadwick, 277 S.W.3d at 107.

      . Id. at 104-05.

      . Id. at 104.

      . 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

      . 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . Id.

      . Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993).

      . 128 S.Ct. at 2383.

      . Id.

      . Id. at 2384.

      . Id. at 2388.

      . Id. at 2387.

      . Id. at 2388.

      . Id.

      . Id. at 2394 (Scalia, J., dissenting).

      . Id. at 2387.

      . See id. at 2387-88; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

      . Guzman, 955 S.W.2d at 89.

      . Id.

      . See id.; cf. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.Crim.App.2007).

      . Chadwick, 277 S.W.3d at 103.

      . Id. at 104.

      . See Guzman, 955 S.W.2d at 89; cf. Gutierrez, 221 S.W.3d at 687.

      . See Edwards, 128 S.Ct. at 2387.

      . See Guzman, 955 S.W.2d at 89; cf. Gutierrez, 221 S.W.3d at 687.