                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-12-00143-CV


THE CITY OF FORT WORTH                                                 APPELLANT

                                         V.

CECILIA JACOBS                                                          APPELLEE


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         FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

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                                    OPINION

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                    I. INTRODUCTION AND BACKGROUND FACTS

      This is an interlocutory appeal by Appellant the City of Fort Worth from the

trial court’s order that granted in part and denied in part the City’s plea to the

jurisdiction. Based on allegedly discriminatory and unconstitutional employment

practices, Appellee Cecilia Jacobs filed suit against the City asserting, in addition

to other claims not at issue here, violations of her rights under the Texas

constitution to due process, equal protection, and free speech. Although the trial
court granted the City’s plea to the jurisdiction to the extent that Jacobs sought

money damages for the state constitutional violations, it denied the City’s plea to

the jurisdiction on Jacobs’s state constitutional claims to the extent that Jacobs

sought the remedy of reinstatement of employment for these alleged claims.1

The sole issue raised by the City in this appeal is: “Does the trial court have

jurisdiction to order reinstatement as an equitable remedy for alleged violations of

the due-process, free-speech, and equal-protection clauses of the Texas

Constitution?” For the reasons set forth below, we will affirm.

II. NO IMMUNITY FROM SUITS SEEKING EQUITABLE REMEDIES FOR CONSTITUTIONAL
            VIOLATIONS; REINSTATEMENT IS AN EQUITABLE REMEDY

      The Texas Supreme Court has explained that governmental entities do not

possess immunity for violations of the Texas constitution because


      [t]he guarantees found in the Bill of Rights are excepted from the
      general powers of government; the State has no power to commit
      acts contrary to the guarantees found in the Bill of Rights. Tex.
      Const. art. 1, § 29. Section 29 has been interpreted as follows: any
      provision of the Bill of Rights is self-executing to the extent that
      anything done in violation of it is void. . . . Such a declaration [of
      voidness] is different from seeking compensation for damages, or
      compensation in money for a loss or injury. Thus, suits for equitable
      remedies for violation of constitutional rights are not prohibited.
      Section 29 does not support . . . a private right of action for damages
      . . . under the Texas [c]onstitution.




      1
        The City’s plea to the jurisdiction asserted that the trial court lacked
jurisdiction because “money damages are not available for state constitutional
violations; and the Texas Supreme Court has not authorized reinstatement as an
equitable remedy for violations of the Texas Constitution.”

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City of Beaumont v. Bouillion, 896 S.W.2d 143, 148–49 (Tex. 1995) (emphasis

added); see also, e.g., City of Elsa v. M.A.L., 226 S.W.3d 390, 391–92 (Tex.

2007) (recognizing that governmental entities may be sued for injunctive relief

under the Texas constitution); City of Arlington v. Randall, 301 S.W.3d 896, 907

(Tex. App.—Fort Worth 2009, pet. denied) (recognizing that governmental

entities may be sued for equitable relief under the Texas constitution); Univ. of

Tex. Sys. v. Courtney, 946 S.W.2d 464, 469 (Tex. App.—Fort Worth 1997, writ

denied) (op. on reh’g) (same); Harris County v. Going, 896 S.W.2d 305, 308–09

(Tex. App.—Houston [1st Dist.] 1995, writ denied) (same). The City repeatedly

acknowledges in its appellate briefing that it is not immune from suits asserting

state constitutional violations when the remedy sought is equitable relief. But the

City argues that reinstatement is not an equitable remedy and that, therefore, it

possesses immunity from Jacobs’s claims for violations of the state constitution

because she seeks the allegedly nonequitable remedy of reinstatement.2


      2
       Specifically, the City asserts,

            Jacobs is asking the trial court to impose an affirmative duty
      on the City—that is, to require the City to reinstate her employment.
      This Court has held, however, that a city is immune from a suit
      seeking imposition of an affirmative duty based on a past wrong,
      because such a remedy is a legal, not an equitable, remedy. See
      City of Arlington v. Randall, 301 S.W.3d 896, 907 (Tex. App.—Fort
      Worth 2009, pet. denied).

In Randall, the plaintiff sought injunctive relief in the form of a trial court order
imposing a duty on the city to redeem his reputation. Id. We held in Randall that
the City was immune from a claim for injunctive relief that in fact did not seek
injunctive relief––that is, did not seek to halt wrongful acts threatened in the

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      Reinstatement is an equitable remedy per se. See City of Seagoville v.

Lytle, 227 S.W.3d 401, 410, 414 (Tex. App.—Dallas 2007, no pet.) (recognizing

that reinstatement is an equitable remedy per se and affirming denial of city’s

plea to the jurisdiction “with respect to the portion of Lytle’s claims for

declaratory, mandamus, and injunctive relief seeking . . . reinstatement”); Haynes

v. City of Beaumont, 35 S.W.3d 166, 174, 182 (Tex. App.—Texarkana 2000, no

pet.) (remanding to trial court claim against city for violation of Texas constitution

that sought reinstatement because it sought equitable relief); see also Andrade v.

City of San Antonio, 143 F. Supp. 2d 699, 721 (W.D. Tex. 2001) (“Although the

Texas Supreme Court held in City of Beaumont v. Bouillion that there is no

implied right of action for monetary damages arising under the free speech

provision of the Texas [c]onstitution, suits for equitable remedies (such as

reinstatement) for constitutional right violations are not precluded.”). Because

reinstatement is an equitable remedy and because the City is not immune from

suits asserting state constitutional violations when the remedy sought is equitable

relief, the City is not immune from Jacobs’s suit asserting state constitutional

violations and seeking the remedy of reinstatement. See City of Seagoville, 227

S.W.3d at 410 (“We conclude the portion of Lytle’s declaratory judgment action

that seeks withdrawal of the disciplinary action and reinstatement to his original

future––but instead sought imposition of a duty based on a past alleged
actionable wrong. Id. Here, we are not dealing with a request for injunctive relief
in the form of a trial court order redeeming Jacobs’s reputation; we are not
dealing with injunctive relief at all. The relief requested here is for reinstatement.


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position and pay grade does not seek an award of money damages and is not

barred by governmental immunity.”); accord City of Elsa, 226 S.W.3d at 391–92

(recognizing governmental entity is not immune from suit for violation of

provisions of Texas constitution that seeks equitable remedy); Bouillion, 896

S.W.2d at 147–49 (same).

III. WHETHER THE REMEDY OF REINSTATEMENT IS AVAILABLE FOR CONSTITUTIONAL
        VIOLATIONS DOES NOT ALTER THE STATUS OF THE CITY’S IMMUNITY

       The City argues that “reinstatement exceeds the scope of an appropriate

constitutional remedy” and that, therefore, “an order of reinstatement is not within

the trial court’s jurisdiction.” The City points out that the Texas Supreme Court

has never addressed whether the remedy of reinstatement is available for an

alleged constitutional violation. See City of Midland v. O’Bryant, 18 S.W.3d 209,

218 (Tex. 2000) (explaining that “[w]hether reinstatement can be a remedy for

violations of the Texas [c]onstitution is not before this Court, and accordingly, we

express no view on that question”). The City urges us to “hold that reinstatement

is not an appropriate constitutional remedy.” The City’s prayer concludes that its

“immunity from suit has not been waived because Jacobs’[s] pleadings

affirmatively demonstrate that she seeks a remedy that exceeds the trial court’s

jurisdiction.”

       But whether the specific equitable remedy of reinstatement—as opposed

to other equitable remedies—exists for a constitutional violation does not change

the fact that the City is not immune from suits seeking equitable relief for the



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alleged violations of the Texas constitution.3 Certain provisions of the Texas

constitution are self-enacting and thus provide the right to bring an action against

a governmental entity for violations of those provisions without the need for

legislative consent. Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980).

As discussed above, the State has no power to commit acts contrary to the

guarantees found in the Bill of Rights. Boullion, 896 S.W.2d at 147–49. Thus,

these constitutional provisions authorize suits against governmental entities—

that is, constitute a waiver of immunity—when such suits seek equitable relief

from allegedly void, unconstitutional governmental action. Id. We have located

no case law supporting the proposition that the City’s immunity fluctuates

depending on which equitable relief a plaintiff seeks in a claim alleging a violation

of the state constitution, and we decline to so hold.

      Likewise, the fact that the Texas Supreme Court has not decided whether

the equitable remedy of reinstatement is or is not available for the state

constitutional violations pleaded by Jacobs does not deprive the trial court of

jurisdiction over her claims.     A Texas district court is a court of general

jurisdiction; our constitution provides that the jurisdiction of a district court

“consists of exclusive, appellate, and original jurisdiction of all actions,

proceedings, and remedies, except in cases where exclusive, appellate, or


      3
       The City may possess other options for pursuing its assertion that the
remedy of reinstatement is, as a matter of law, not available to Jacobs, such as
special exceptions or a motion for summary judgment.


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original jurisdiction may be conferred by this Constitution or other law on some

other court, tribunal or administrative body.” Tex. Const. art. V, § 8. By statute,

district courts have “the jurisdiction provided by Article V, Section 8, of the Texas

Constitution” and “may hear and determine any cause that is cognizable by

courts of law or equity and may grant any relief that could be granted by either

courts of law or equity.” Tex. Gov’t Code Ann. §§ 24.007–.008 (West 2004 &

Supp. 2012); see generally Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 74 (Tex.

2000). The district court here clearly possesses jurisdiction to sign an order or

judgment requiring Jacobs’s reinstatement. Accord Texas A&M Univ. Sys. v.

Luxemburg, 93 S.W.3d 410, 426 & n.6 (Tex. App.—Houston [14th Dist.] 2002,

pet. denied) (op. on reh’g) (noting that trial court in fact ordered reinstatement as

remedy for state constitutional violation although neither party complained that it

was not a proper remedy). The issue of whether or not the trial court would err

by ordering reinstatement as a remedy for a state constitutional violation is not

before us. Faced with the City’s ground alleged in its brief on appeal that the trial

court lacks jurisdiction over Jacobs’s claims, because “the [Texas] Supreme

Court has not authorized reinstatement as a remedy for a constitutional

violation,” we hold only that the trial court possesses jurisdiction over Jacobs’s

claims for state constitutional violations that seek the equitable remedy of

reinstatement.




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                                 IV. CONCLUSION

      Because reinstatement is an equitable remedy, because the City is not

immune from suits alleging violations of the state constitution that seek an

equitable remedy, because the trial court possesses jurisdiction over Jacobs’s

claims for state constitutional violations that seek the equitable remedy of

reinstatement, and because these are the sole grounds raised by the City in its

appeal, we overrule the City’s issue on appeal. We affirm the trial court’s order

denying the City’s plea to the jurisdiction on Jacobs’s claims for state

constitutional violations that seek the equitable remedy of reinstatement.




                                                   SUE WALKER
                                                   JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DELIVERED: September 13, 2012




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