     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                  NO. 03-08-00423-CV



                                City of Austin, Appellant

                                           v.

 Clifton Alexander, Rob Acker, Joe Augeri, James Baker, Doug Boes, Brad Ballard, John
 Banning, Scott Bartell, Edward Baxter, Dan Beard, David Bearden, David Belknap, Mike
Bewley, Mikel Borg, David Brietzke, Drew Britcher, Becky Brooks, Kevin Brooks, Malvin
Brown, Palmer Buck, Richard Bunte, Jeremy Burke, Richard Candelario, Alfred Cervera,
 Bret Carr, Michael Chappell, Duncan Charlton, Andrew Chelf, John Cherry, Ed Cisler,
 Larry Clowry, Jerry Cohen, Robbie Colt, Matt Cox, Wade Crain, Greg Crowley, Prestin
Curtis, Marshall Dandridge, Richard Davis, Scott Decuir, Doug Dedear, David Dixon, Tom
 Dodds, Anthony Dwyer, Lynn Eichler, Donald Eickhoff, Dan Elliott, Tracy Evans, Jorge
  Felix, Stuart Finnessey, Crocket Foster, Lionel Foster, Doug Fowler, Faron Fowler, Ken
Fowler, Mike Frick, Daniel Galvan, Homero Barcia, David Garza, Mike Geraty, Lawrence
    Gess, John Green, Guy Groomer, Randy Gunn, Luis Gutierrez, Bob Hamilton, Rob
Hayden, Daniel Herman, Gregorio Hernandez, David Hiebert, Patrick Holman, Mary Ann
   Hubbard, Phil Jack, Scott Janecek, Randy Jones, Andre Jordan, Travis Jordan, Janet
Kallus, Clifford Kealey, Rod Kelley, Bryan Kent, Edgar Kneupper, Kelly Knobloch, Chris
   Lafferre, Brad Landi, John Lenz, Raymond Lescbher, Mike Littrell, Ken Lones, Joe
Loughran, John Lowery, David Lundstedt, Eric Lupton, Mark Madison, Thomas Madison,
  Carmen Maguire, Danny Marquis, Juan J. Martinez, Steve Martinez, Matt McBrayer,
 Donald McCullough, Matt McElerney, Les Mckay, Marion McKibbin, William McLain,
 Richard Mendez, Brent Meisenheimer, Chad Messersmith, Larry Miller, Will Moncrief,
   Ricky Moore, Phil Mueller, Mike Nascimbeni, Randell Nations, Brian Nolan, Michael
Norris, Glen O’Dell, Terrence Oertli, Joe Olague, Lonnie Owen, Robert A. Parker, Wayne
Parrish, Greg Paschall, Gary Paskos, Mike Pearson, Angel Perez, Paul Phillips, Mark Pigg,
  Hunter Pomroy, Todd Pomroy, Michael Pooler, Greg Powers, Tye Prange, Gary Priest,
     Carie Pritchard, Andy Reardon, Greg Reddish, Tom Reiner, Scott Reynolds, Roy
 Richardson, Joe Ridgeway, Alex Rodriguez, Edward Roel, Dean Rumel, Chris Sandman,
Marcello Saenz, Nicholas Schappe, Kim Schmidt, Andrew Schultz, Mark Schultz, Barbara
Scotti, Vincente Serrano, David Smith, Mike Stephenson, Tracey Suire, Reggie Tait, Justin
 Taltentino, Roger Tanner, Everett Thomas, Kathy Touretellotte, Tim Treckman, Stephen
 Truesdell, Rene Vallejo, Stan Van Hoose, Jose Vaquez, Miguel Vasquez, Robert Vickery,
Art Vieria, Mike Villarreal, Kelly Wacker, Brandon Wade, Bryan Wagers, Jon Wakefield,
Scott Walters, Chris Watson, Charles Weise, John Weller, Lawrence Wesley, Jan Wesson,
   Carlton Whitehurst, Tommy Wilkins, Michael Williams, Lance Williamson, Charles
  Wolfe, Hugh Woodard, Aaron Woolverton, Gerald Worry, and Scott Worth, Appellees
     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
      NO. D-1-GN-07-002423, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A number of current and former Austin fire fighters (collectively, “the Fire Fighters”)

filed suit against the City of Austin (“the City”), claiming violations of the Fire Fighter and Police

Officer Civil Service Act, see Tex. Loc. Gov’t Code Ann. §§ 143.001-.363 (West 2008) (“the Civil

Service Act”). Specifically, the Fire Fighters allege that City of Austin Ordinance 020926-13

violates sections 143.041 and 143.044 of the Civil Service Act by preventing them from

simultaneously receiving both certification pay and educational incentive pay. See id. §§ 143.041,

.044. The Fire Fighters seek declaratory, injunctive, and mandamus relief, as well as an award of

back pay. The City filed a partial plea to the jurisdiction in connection with the back pay claims of

a certain portion of the Fire Fighters. The trial court denied the plea, and the City filed the present

interlocutory appeal. Meanwhile, the parties filed cross-motions for summary judgment, and the

trial court issued a final order granting summary judgment in favor of the City. The Fire Fighters’

appeal from the summary judgment is cause number 03-08-00594-CV.1 On the parties’ joint motion,

we consolidated the two appeals for the limited purpose of consideration.2


       1
          The names of the parties in cause number 03-08-00423-CV have been taken from the City
of Austin’s notice of appeal, while the names of the parties in cause number 03-08-00594-CV have
been taken from the Fire Fighters’ notice of appeal. To the extent there are differences in the names
of individual plaintiffs, these differences are also reflected in the parties’ notices of appeal.
       2
           The parties’ motions for leave to file supplemental post-submission briefs are hereby
granted.

                                                  2
                Because we are compelled to reach the merits of the summary judgment regardless

of our determination of the jurisdictional issue, and because we affirm the trial court’s grant of

summary judgment dismissing all of the Fire Fighters’ claims in cause number 03-08-00594-CV,

we dismiss as moot the City’s interlocutory appeal of the denial of its partial plea to the jurisdiction.


                                             DISCUSSION

                The City concedes that the trial court had subject-matter jurisdiction over all of the

Fire Fighters’ claims other than their claims for back pay. The City further concedes that

governmental immunity has been waived with regard to the back pay claims of at least nine of the

individual plaintiffs because they first asserted their claims by filing this suit after the June 15, 2007

effective date of the immunity waiver found in local government code section 180.006. See Tex.

Loc. Gov’t Code Ann. § 180.006 (West 2008) (waiving immunity for back pay claims by fire fighters

or police officers against employing municipality); see also id. historical note [Act of June 15, 2007,

80th Leg., R.S., ch. 1200, § 3, 2007 Tex. Gen. Laws 4071, 4072] (waiver of immunity “applies only

to a claim . . . initially asserted on or after the effective date [June 15, 2007] of this Act.”). The City

argues, however, that because the remainder of the plaintiffs filed a previous lawsuit under the same

theory of recovery in 2006, they “initially asserted” their back pay claims prior to the effective date

of section 180.006 and therefore cannot take advantage of the immunity waiver.3




        3
         The City also argues, in the alternative, that section 180.006 cannot be applied retroactively
to claims that accrued before June 15, 2007. At a minimum, however, the City concedes that
governmental immunity does not bar the back pay claims of nine of the individual plaintiffs to the
extent those claims accrued after June 15, 2007.

                                                    3
               In supplemental briefing to this Court, the City states that its “partial jurisdictional

challenge implicates only Plaintiffs’ claims for retrospective money damages—not subject matter

jurisdiction to hear the Plaintiffs’ claims. Therefore, if this Court upholds the trial court decision

[granting summary judgment] in Appeal No. 03-08-00594, there is no need to reach the City’s

jurisdictional arguments.” We agree. Given that the jurisdictional challenge implicates only the

back pay claims raised by some of the Fire Fighters and does not affect the Fire Fighters’ claims for

prospective relief or the trial court’s jurisdiction to determine whether the City violated the Civil

Service Act, we must review the merits of the summary judgment regardless of our holding on the

jurisdictional question.

               While an appellate court typically must examine questions of jurisdiction, even when

not raised by the parties, in order “to ensure that its decision on the merits is not merely advisory,”

Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 853-54 (Tex. 2000) (Hecht, J., dissenting), there

is no potential for an advisory opinion in this case, as the City concedes that the trial court had

jurisdiction over the Fire Fighters’ claims that the City violated the Civil Service Act.

               Furthermore, in light of our opinion issued today in cause number 03-08-00594-CV,

in which we held that the trial court’s order granting summary judgment and dismissing all of the

Fire Fighters’ claims was proper, any determination regarding jurisdiction as to the back pay claims

of certain Fire Fighters would have no effect on the rights of the parties. See VE Corp. v. Ernst

& Young, 860 S.W.2d 83, 84 (Tex. 1993) (per curiam) (“[A]n appeal is moot when the court’s action

on the merits cannot affect the rights of the parties.”); cf. Dardas v. Fleming, Hovenkamp

& Grayson, P.C., 194 S.W.3d 603, 621 n.7 (Tex. App.—Houston [14th Dist.] 2006, pet. denied)



                                                  4
(declining to resolve jurisdictional question that “would not affect our judgment in this case”). On

that basis, we dismiss the City’s appeal from the trial court’s denial of its partial plea to the

jurisdiction.


                                          CONCLUSION

                We dismiss as moot the City’s interlocutory appeal from the trial court’s denial of its

partial plea to the jurisdiction.




                                               __________________________________________

                                               Diane M. Henson, Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Dismissed as Moot

Filed: November 20, 2009




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