                                      In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                              __________________

                              NO. 09-18-00407-CV
                              __________________

                      MICHAEL SCOTT NIX, Appellant

                                         V.

                   CITY OF BEAUMONT, TEXAS, Appellee

__________________________________________________________________

               On Appeal from the 172nd District Court
                       Jefferson County, Texas
                      Trial Cause No. E-201,849
__________________________________________________________________

                          MEMORANDUM OPINION

      Appellant Michael Scott Nix brings this interlocutory appeal from the trial

court’s order granting the City of Beaumont, Texas’s (“the City”) plea to the

jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp.

2018). We affirm the trial court’s order dismissing Nix’s claims against the City.




                                         1
                                     Background

      On June 1, 2018, Nix filed a petition seeking declaratory and equitable relief

against the City based on his indefinite suspension from his position as a firefighter.

In his request for declaratory relief, Nix stated that the Collective Bargaining

Agreement (“CBA”) between the Beaumont Firefighters Local 399 (“Union”) and

the City is invalid because the City failed to comply with the posting requirement as

required by section 551 of the Texas Government Code. Nix alleged that his

employment contract with the City is also invalid because the City failed to post the

CBA. On April 20, 2015, Nix entered into a Settlement Agreement (“Agreement”)

with Beaumont Fire Chief, Ann Huff (“Chief”), and the Union. According to Nix,

because the Agreement is a modification of his invalid employment contract, the

Agreement is void.

      Nix further alleged that because there was no lawful contractual basis for his

indefinite suspension on September 13, 2017, his suspension was without any legal

basis. Nix requested that the trial court find that his suspension is void and order the

City to reinstate him as a firefighter and restore any lost benefits and compensation

he sustained as a result of his suspension. Nix also requested declaratory relief

because the City had deprived him of his constitutionally protected property and

liberty interests in his employment without due process of law. Nix requested a

                                           2
declaration that he was unlawfully, indefinitely suspended from his position as a

firefighter for the City. Nix attached exhibits to his petition, which include the 2015

Agreement, the Standard Operating Guidelines for the City’s Fire-Rescue Services,

the Union’s Grievance Procedure, the 2017 Statement of Action in the Matter of the

Disciplinary Suspension of Nix, and the Rules and Regulations concerning sick and

off-duty injury leave for the City’s Fire-Rescue Services.

      According to the standard operating guidelines for the City’s Fire-Rescue

Services, upon written agreement between the Chief and an employee who is to

receive an indefinite suspension without pay (termination), the Chief may hold some

or all of the suspension in abeyance, and the Chief and the employee must agree to

and sign a settlement agreement, which will include consequences to the employee

for future policy violations within a specified time period. When an employee

accepts a settlement agreement to participate in the abeyance program, the employee

“must agree to waive any and all further administrative or judicial remedies

regarding the indefinite suspension.”

      The Agreement stated that on April 2, 2015, the Chief indefinitely suspended

Nix from his employment with the Fire Department, and Nix disputed the suspension

and was represented by the Union in settling the dispute. Nix agreed to immediately

serve a ninety-day suspension without pay beginning April 2, 2015, and ending on

                                          3
June 30, 2015, and Nix agreed that the remainder of the indefinite suspension

initially imposed by the Chief would be held in abeyance pending Nix’s strict

compliance with the terms and conditions of the Agreement. The Agreement

provided that, among other things, “[b]etween April 2, 2015, and April 2, 2017, Nix

shall have no sustained violations of the Fire Department’s rules and regulations

referencing code of conduct and/or social media.”

      According to the Agreement, should Nix violate any terms of the Agreement

before April 2, 2017, the Chief, in her sole discretion, could determine that Nix had

violated the Agreement and reinstate Nix’s indefinite suspension, and the Agreement

states that “Nix hereby waives all rights to appeal the Chief’s decision to an

independent hearing examiner or the Civil Service Commission.” The Agreement

further provides that Nix “waives all rights he may have to file suit against the Chief

or the City, its employees, agents or representatives, relative to any issue directly or

indirectly related to this Agreement and/or his indefinite suspension.” Nix also

waived his right to appeal the Chief’s decision to indefinitely suspend his

employment as of April 2, 2015, as well as his right to appeal the terms and

conditions of the Agreement. The Union agreed to all the terms and conditions of

the Agreement, including Nix’s waiver of his right to appeal the Chief’s 2015



                                           4
decision to terminate Nix and the terms and conditions of the Agreement, and any

right to appeal in the future if the Chief determines Nix violated the Agreement.

      The Agreement included language assuring its finality, as Nix and the Union,

jointly and severally, agreed to indemnify and hold harmless the Chief, the City, and

the City’s employees, agents, and representatives, from any and all claims, demands,

actions, causes of action, damages, attorney’s fees, and costs of court of whatever

nature or character which have been or may hereinafter be asserted by any person,

firm, or corporation, whomsoever claiming by, through, or under Nix, resulting from

or in any manner connected with the Agreement or Nix’s 2015 indefinite suspension.

The Agreement further provides that Nix would hold harmless the Chief, the City,

and the City’s employees, agents, and representatives if the Chief reinstated Nix’s

indefinite suspension.

      The statement of action in the disciplinary suspension of Nix provides that on

September 13, 2017, Nix was indefinitely suspended for disciplinary purposes due

to violating (1) section 143.051 of the Local Government Code, (2) the City’s Rules

of the Firemen and Policemen Civil Service Commission, and (3) the City’s

Fire/Rescue Service Rules, Regulations, or Special Orders. See Tex. Loc. Gov’t

Code Ann. § 143.051(6), (8), (12) (West 2008). In the statement of action, the City

alleged that Nix violated state and local civil service and fire department rules,

                                         5
regulations, and guidelines by violating sick leave regulations, and the City alleged

that the instances of sick leave abuse occurred within the period covered by the

Agreement.

      The City filed a plea to the jurisdiction, arguing that (1) Nix’s claims are

barred by sovereign immunity, (2) his constitutional claims are not ripe and lack

merit, and (3) Nix failed to exhaust his administrative remedies. According to the

City, the trial court lacks jurisdiction because Nix is currently appealing his

termination before the Civil Service Commission (“Commission”), and the

Commission has not rendered a final decision. Attached as an exhibit to its plea is

an email that Nix’s counsel sent to the City’s personnel director, in which Nix’s

counsel indicated that Nix wanted to continue the hearing with the Commission. In

the email, Nix’s counsel also asserted that Nix’s lawsuit addresses constitutional

issues and not the contract issues that were before the Commission.

      In its plea, the City maintained that the basis of Nix’s lawsuit is to challenge

his indefinite suspension by asserting that the CBA and the Agreement are invalid

because they were not posted, which is the same argument that Nix is making to the

Commission. The City asserted that Nix’s argument that the CBA is invalid is

without merit, and the City attached an exhibit to its plea, which contains the CBA

(hereinafter referred to as “CBA 2015-2020”), which is effective October 1, 2015,

                                          6
through September 20, 2020, and the posted notices for the negotiations of the CBA

2015-2020. The City also maintained that because the Agreement was not a contract

amendment, it was not required to be posted. According to the City, Nix’s claim that

the City deprived him of his constitutionally protected interests without due process

of law is not ripe, and Nix cannot seek relief from the district court until Nix exhausts

his administrative remedies by obtaining a final decision from the Commission. The

City further argued that Nix’s claims are barred by sovereign immunity because

Nix’s declaratory judgment action requesting that the City reinstate him with full

compensation for actual time lost is a claim for monetary damages.

      In response to the City’s plea, Nix filed a supplemental petition requesting

declaratory and equitable relief and asserting that the trial court has jurisdiction

because his request for relief did not involve a tort claim, contract claim, or a claim

for monetary relief. Nix argued that the relevant CBA was the CBA 2012-2015 that

was in effect when Nix signed the Agreement, and Nix requested that the trial court

declare the CBA 2012-2015 and the Agreement void because the City failed to

comply with the posting requirements of the Texas Open Meetings Act (“TOMA”).

Nix argued that because the City had failed to provide any posted notices for the

negotiations of the CBA 2012-2015 or the Agreement, neither was in effect when

the City indefinitely suspended him in 2017. Nix maintained that his 2017 indefinite

                                           7
suspension was based on the void CBA 2012-2015 and the void Agreement, and he

asked the trial court to reinstate Nix to his position as a firefighter; order the City to

restore any benefits Nix lost as a result of his suspension, including sick leave,

vacation leave, and service benefits; and order the City to provide Nix with full

compensation for the actual time lost at the rate of pay provided for his position.

      Nix further alleged that the City had violated his constitutionally protected

property interests without due process of law by basing his 2017 indefinite

suspension on the void CBA 2012-2015 and his Agreement. Nix argued that the City

is not immune from suits seeking equitable relief for alleged violations of the Texas

Constitution, and that the district court has jurisdiction to order his reinstatement.

      On August 29, 2018, the trial court conducted a hearing on the City’s plea to

the jurisdiction, and counsel for the City argued that Nix had initiated a Commission

hearing, which had been reset several times, and after Nix filed his petition, Nix’s

counsel indicated that Nix wanted to continue with the Commission hearing.

According to the City, the Civil Service Rules prohibit Nix from appealing to the

district court until the Commission hearing has concluded and Nix receives an

adverse ruling. The City maintained that when it filed its plea, the Commission

hearing had a tentative date of August 13, 2018, which had to be rescheduled due to

scheduling conflicts, and that the parties had been trying to agree to a new date.

                                            8
Counsel for the City also argued that Nix’s declaratory judgment action is premature

and is a claim for monetary damages, which cannot be brought against the City.

Regarding Nix’s allegation that the CBA in question is void or voidable, the City

maintains that it presented evidence showing that the relevant CBA was posted, and

the City argued that the postings are presumed to be correct and that Nix had failed

to show otherwise.

      Nix’s counsel argued that the Commission hearing concerning the contractual

claim was concluded in May 2018, and although the City asked that the matter be

kept open until it could present additional testimony, section 143 of the Local

Government Code does not allow the City to postpone the proceeding indefinitely.

Nix’s counsel argued that the suit was an equitable action based on the City having

violated Nix’s constitutional rights and did not involve a contract issue, and counsel

explained that he filed an amended petition seeking declaratory and equitable relief

to ensure that the City understood that Nix was not seeking any damages. Nix’s

counsel further argued that the City did not possess immunity from liability for

violations of the Texas Constitution because the guarantees found in the Bill of

Rights are excepted from the general powers of the government. According to Nix’s

counsel, the trial court has jurisdiction to consider Nix’s equitable claim because it



                                          9
is based upon his claimed constitutional violations, and Nix is seeking the equitable

remedy of reinstatement.

      Nix’s counsel also argued that the 2015 Agreement is void because the City

never posted the Agreement or the CBA 2012-2015, which covered the relevant time

period when Nix signed the Agreement in April 2015. According to Nix’s counsel,

the City presented evidence showing that the CBA 2015-2020, which became

effective in September 2015, had been posted, but Nix’s counsel argued that the

CBA 2015-2020 was not the relevant CBA. Nix’s counsel further argued that the

City failed to show that the CBA 2012-2015 had been posted.

      The City argued that the Agreement is an abatement agreement that Nix

voluntarily accepted with no right to appeal, and the City was not required to post

the Agreement because it was not an amendment to the CBA. According to the City,

the CBA 2012-2015 does not apply because Nix is appealing his 2017 termination

under the CBA 2015-2020, which is the current CBA. The trial court granted the

City’s plea to the jurisdiction and dismissed Nix’s claims against the City with

prejudice, and Nix appealed.

                                Standard of Review

      Governmental immunity protects governmental units of the State from suit.

See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Unless

                                         10
a governmental unit has consented to suit, a trial court lacks subject-matter

jurisdiction to consider a claim against it. Wichita Falls State Hosp. v. Taylor, 106

S.W.3d 692, 696 (Tex. 2003); see also Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 225-26 (Tex. 2004). The plaintiff must plead facts that

affirmatively demonstrate that governmental immunity has been waived and the trial

court has subject-matter jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex.

2007); Miranda, 133 S.W.3d at 226, 228. Whether subject-matter jurisdiction exists

is a question of law, and we review the trial court’s ruling on a plea to the jurisdiction

de novo. Holland, 221 S.W.3d at 642; Miranda, 133 S.W.3d at 226, 228.

      When a plea to the jurisdiction challenges the existence of jurisdictional facts,

an appellate court must consider relevant evidence submitted by the parties to

determine if a fact issue exists, as the trial court must do. City of Waco v. Kirwan,

298 S.W.3d 618, 622 (Tex. 2009); Miranda, 133 S.W.3d at 226-27. We take as true

all evidence favorable to the nonmovant, indulging every reasonable inference and

resolving any doubts in the nonmovant’s favor. Miranda, 133 S.W.3d at 228. “If the

evidence creates a fact question regarding the jurisdictional issue, then the trial court

cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the

fact finder.” Id. at 227-28. “However, if the relevant evidence is undisputed or fails



                                           11
to raise a fact question on the jurisdictional issue, the trial court rules on the plea to

the jurisdiction as a matter of law.” Id. at 228.

                                        Analysis

      In three issues on appeal, Nix argues that the trial court erred in granting the

City’s plea to the jurisdiction. In issues one and two, Nix contends that the trial court

has jurisdiction of his suit for declaratory and equitable relief against the City for

violating the notice and posting requirements of TOMA, because TOMA provides a

limited waiver of immunity for violations of its provisions and authorizes suits

against governmental bodies seeking declaratory relief based on TOMA violations.

According to Nix, the trial court has subject matter jurisdiction to declare that the

CBA 2012-2015 and the Agreement are voidable because the City failed to comply

with section 174.108 of the Texas Local Government Code and section 551.001 of

the Texas Government Code. See Tex. Loc. Gov’t Code Ann. § 174.108 (West

2016); Tex. Gov’t Code Ann. § 551.001 (West Supp. 2018); see also Tex. Gov’t

Code Ann. § 551.141 (West 2017). The City maintains that the trial court did not err

in granting its plea, because the CBA 2012-2015 is not the relevant agreement, and

the City provided evidence that the CBA 2015-2020 had been posted. The City

further argued that it was not required to post the Agreement.



                                           12
      Chapter 174 of the Texas Local Government Code is referred to as The Fire

and Police Employee Relations Act, and it provides firefighters and police officers

the right to organize for collective bargaining, which is “a fair and practical method

for determining compensation and other conditions of employment.” Tex. Loc.

Gov’t Code Ann. §§ 174.001, 174.002(b) (West 2016). A collective bargaining

agreement is binding and enforceable against a public employer, an association, and

a firefighter covered by the agreement. Id. § 174.109 (West 2016). Section 174.108

requires that “[a] deliberation relating to collective bargaining between a public

employer and an association, a deliberation by a quorum of an association authorized

to bargain collectively, or a deliberation by a member of a public employer

authorized to bargain collectively shall be open to the public and comply with state

law.” Id. § 174.108. Chapter 174 waives sovereign or governmental immunity from

suit and liability, but only to the extent necessary to enforce the chapter against a

public employer. Id. § 174.008 (West 2016).

      The intent of TOMA is to provide public access and to increase public

knowledge of government decision making. Tex. State Bd. of Pub. Accountancy v.

Bass, 366 S.W.3d 751, 759 (Tex. App.—Austin 2012, no pet.). TOMA waives

immunity for violations of its provisions and authorizes a suit against a governmental

body. City of Donna v. Ramirez, 548 S.W.3d 26, 35 (Tex. App.—Corpus Christi

                                         13
2017, pet. denied); see Tex. Gov’t Code Ann. § 551.141. TOMA requires a

governmental body to conduct its business in meetings that are open to the public

and to provide “written notice of the date, hour, place, and subject of each meeting

held by the governmental body.” See Tex. Gov’t Code Ann. § 551.002 (West 2017);

see also Tex. Gov’t Code Ann. § 551.002. Notice is sufficient when it informs the

reader that the governmental body will consider some action regarding a topic.

Ramirez, 548 S.W.3d at 35. An action taken by a governmental body in violation of

TOMA is voidable. Tex. Gov’t Code Ann. § 551.141. TOMA does not require a

governmental body to conduct an open meeting to deliberate the employment,

discipline, or dismissal of a public employee unless the employee requests a public

hearing. Tex. Gov’t Code Ann. § 551.074(a)(1), (b) (West 2017).

      When a department head suspends a firefighter for violating a civil service

rule, the suspension may be for a reasonable period not to exceed fifteen calendar

days or for an indefinite period. Tex. Loc. Gov’t Code Ann. § 143.052(b) (West

2008). The firefighter may agree in writing to voluntarily accept, with no right of

appeal, a suspension of sixteen to ninety days for violating a civil service rule, or he

can refuse the offer and appeal to the Commission. Id. § 143.052(g). If the suspended

firefighter appeals his disciplinary suspension, the Commission shall hold a hearing

and render a written decision within thirty days after the date it receives notice of

                                          14
appeal, unless the suspended firefighter and the Commission agree to postpone the

hearing for a definite period. Id. § 143.053(b) (West 2008). When a firefighter is

dissatisfied with the Commission’s decision, he may file a petition in district court

asking that the decision be set aside, and the district court may grant the appropriate

legal or equitable relief necessary, including reinstatement with back pay if an order

of suspension is set aside. Id. § 143.015 (West 2008).

      Although Nix is correct that the trial court has subject matter jurisdiction over

claims seeking a declaration that an action taken in violation of TOMA is voidable,

on this record, we cannot conclude that the trial court erred by granting the City’s

plea. See Schmitz v. Denton Cty. Cowboy Church, 550 S.W.3d 342, 355 (Tex.

App.—Fort Worth 2018, pet. denied); see also Tex. Gov’t Code Ann. § 551.141.

The question of whether the City posted the CBA 2012-2015 in accordance with

TOMA is not relevant in this appeal, because Nix is appealing his 2017 suspension,

which is based on instances of sick leave abuse that occurred in 2017. Accordingly,

we agree with the City that the CBA 2015-2020 is the relevant CBA. The City

provided evidence showing that the meetings between the City and the Union

concerning the negotiation of the CBA 2015-2020 were posted, and Nix does not

challenge the sufficiency of the posted notices.



                                          15
      We also agree that the City was not required to conduct an open meeting or

provide written notice when it deliberated about Nix’s Agreement, because TOMA

does not require a governmental body to conduct an open meeting to deliberate the

employment, discipline, or dismissal of a public employee unless the employee

requests a public hearing. See Tex. Gov’t Code Ann. § 551.074(a)(1), (b).

Importantly, Nix agreed in writing to voluntarily accept his 2015 disciplinary

suspension, with no right to appeal the terms and conditions of the Agreement or the

Chief’s decision to indefinitely suspend his employment in 2015. See Tex. Loc.

Gov’t Code Ann. § 143.052(g). When Nix accepted the Agreement in 2015, he had

the opportunity to refuse the Chief’s offer and appeal his suspension to the

Commission; however, Nix agreed to waive his right to appeal, including the right

to appeal the Chief’s 2017 decision determining that Nix had violated the Agreement

and reinstating his indefinite suspension. See id.

      Waiver is defined as “an intentional relinquishment of a known right or

intentional conduct inconsistent with claiming that right.” Sun Expl. & Prod. Co. v.

Benton, 728 S.W.2d 35, 37 (Tex. 1987). Based on our review of the Agreement that

Nix voluntarily accepted, Nix also agreed to waive all rights he may have to file suit

against the City as to any issue directly or indirectly related to the Agreement or to

his indefinite suspension. We conclude that the trial court did not err by dismissing

                                          16
Nix’s claims seeking a declaration that the CBA 2012-2015 and the Agreement are

voidable based on TOMA violations. We overrule issues one and two.

      In issue three, Nix contends that the trial court has jurisdiction to declare that

the City deprived him of his constitutionally protected liberty and property interests

without affording him due process because the Commission failed to issue a written

decision on the merits of his appeal as required by section 143.053 of the Texas

Local Government Code. See Tex. Const. art. I, § 19; Tex. Loc. Gov’t Code Ann. §

143.053 (West 2008). When a firefighter who is indefinitely suspended from his

duties has the right to appeal the decision, the Commission shall hold a hearing and

render a written decision within thirty days after the date it receives notice of appeal,

unless the suspended firefighter and the Commission agree to postpone the hearing

for a definite time. See Tex. Loc. Gov’t Code. Ann. §§ 143.052(g), 143.053(b).

      The record shows that Nix and the Commission had agreed to postpone the

Commission hearing concerning Nix’s 2017 indefinite suspension, and after Nix

filed his petition complaining about the City having violated his constitutional rights,

he informed the City’s personnel director that he wanted to continue with the

Commission hearing. Because Nix is still in the process of appealing his 2017

indefinite suspension to the Commission, we cannot conclude that the City has

denied him due process.

                                           17
      In his brief, Nix correctly states that the City is not immune from suits seeking

equitable relief for an alleged violation of the Texas Constitution. See City of Fort

Worth v. Jacobs, 382 S.W.3d 597, 599 (Tex. App.—Fort Worth 2012, pet. dism’d).

According to Nix, the City denied him his constitutional rights by basing his 2017

indefinite suspension on the allegedly void CBA 2012-2015 and the void

Agreement. Having already determined that the CBA 2012-2015 is not the

applicable CBA and that the CBA 2015-2020 and the Agreement are not void based

on TOMA violations, we hold that Nix’s argument is without merit.

      Nix also argues that he has a valid due process claim because he has an

objective vested right to appeal the City’s disciplinary action. However, as we have

already stated, Nix accepted the Agreement and waived his right to appeal, which

included his right to file suit against the City regarding any issue relating to the

Agreement or his indefinite suspension. See Moayedi v. Interstate 35/Chisam Road,

L.P., 438 S.W.3d 1, 6 (Tex. 2014) (stating that parties may waive statutory rights);

Benton, 728 S.W.2d at 37. Additionally, Nix specifically agreed that in the event the

Chief decides to reinstate his indefinite suspension during the terms of the

Agreement, Nix would indemnify and hold harmless the Chief, the City, and the

City’s employees, agents, and representatives, from future claims or actions

founded, in whole or in part, upon constitutional violations. See Tex. Loc. Gov’t

                                         18
Code. Ann. § 143.052(g); Moayedi, 438 S.W.3d at 6 (stating that parties may waive

constitutional rights).

      We conclude that the trial court did not err by dismissing Nix’s claim seeking

a declaration that the City deprived him of his constitutionally protected interests

without affording him due process. We overrule issue three. Having overruled all of

Nix’s issues, we conclude that the trial did not err by granting the City’s plea to the

jurisdiction. Accordingly, we affirm the trial court’s order dismissing Nix’s claims

against the City.

      AFFIRMED.


                                               ______________________________
                                                      STEVE McKEITHEN
                                                          Chief Justice

Submitted on July 9, 2019
Opinion Delivered October 3, 2019

Before McKeithen, C.J., Horton and Johnson, JJ.




                                          19
