                            NUMBER 13-17-00447-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

COUNTY OF HIDALGO,                                                          Appellant,

                                           v.

MARY ALICE PALACIOS                                                          Appellee.


                   On appeal from the 93rd District Court
                        of Hidalgo County, Texas.



                       MEMORANDUM OPINION
           Before Justices Rodriguez, Longoria, and Hinojosa
               Memorandum Opinion by Justice Longoria

      Appellant County of Hidalgo (the County) filed a plea to the jurisdiction to dismiss

appellee Mary Alice Palacios’s suit seeking back pay from the County. The trial court

denied the County’s plea. On appeal, the County argues that the trial court erred by
failing to grant its plea to the jurisdiction. We reverse the trial court’s order and render

judgment dismissing Palacios’s suit against the County.

                                      I. BACKGROUND

       Palacios is a former justice of the peace of Hidalgo County. While she was in office

in 2011, she was convicted of two counts of official oppression, which is a class-A

misdemeanor involving official misconduct. After the judgment was signed, the State

Commission on Judicial Conduct suspended her without pay from her position as justice

of the peace.    In 2014, this Court reversed her conviction and acquitted Palacios,

concluding that “the evidence is insufficient to support the jury’s findings.” Palacios v.

State, 511 S.W.3d 549, 591 (Tex. App.—Corpus Christi 2014, no pet.). In 2015, this

Court issued its mandate. However, Palacios’s term as justice of the peace ended in

December 2014 so she did not return to her position.

       In 2017, Palacios brought a quantum meruit suit against the County, claiming that

she is entitled to compensation and benefits for the period of her suspension. The County

filed a plea to the jurisdiction; according to the County, Palacios failed to establish

subject-matter jurisdiction because Palacios could not identify any statutory authority that

waived governmental immunity in this case. At the hearing on the plea, Palacios admitted

that there is no statutory authority that waives the County’s immunity from suit in this case.

However, Palacios claimed that she was coming before the court “in equity.” The trial

court agreed that “the district court is a court of equity” and denied the County’s plea to

the jurisdiction. This appeal followed.

                                II. GOVERNMENTAL IMMUNITY




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       In a single issue, the County argues that the trial court erred by failing to grant the

plea to the jurisdiction.

A. Standard of Review

       To render a binding judgment, a court must have subject-matter jurisdiction over

the controversy. Spir Star AG v. Kimich, 310 S.W.3d 868, 871 (Tex. 2010). A plea to the

jurisdiction is a dilatory plea; its purpose is “to defeat a cause of action without regard to

whether the claims have merit.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554

(Tex. 2000). A plea based on governmental immunity from suit, like the County’s plea

here, challenges the trial court’s subject-matter jurisdiction over a pleaded cause of

action. See Tex. Dep’t Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004).

Subject-matter jurisdiction is a question of law; therefore, we review the trial court’s ruling

on a plea to the jurisdiction de novo. Hidalgo Cty. v. Dyer, 358 S.W.3d 698, 703 (Tex.

App.—Corpus Christi 2011, no pet.).

       “If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial

court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction,

the issue is one of pleading sufficiency and the plaintiffs should be afforded the

opportunity to amend.” Miranda, 133 S.W.3d at 226–27. On the other hand, if the

pleadings affirmatively negate subject-matter jurisdiction, then the plea to the jurisdiction

can be granted without giving the plaintiff an opportunity to amend. See id. at 227.

B. Applicable Law

       Governmental immunity is a common law doctrine that protects political

subdivisions of the State, including counties. Wichita Falls State Hosp. v. Taylor, 106

S.W.3d 692, 694 n.3 (Tex. 2003). Governmental immunity includes: (1) immunity from



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suit, and (2) immunity from liability. City of Dallas v. Albert, 354 S.W.3d 368, 373 (Tex.

2011). Immunity from suit, which is at issue in the present case, deprives a court of

jurisdiction over governmental entities unless immunity has been expressly waived by the

Legislature in “clear and unambiguous language.”          Univ. of Tex. Med. Branch at

Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994).

       The plaintiff bears the burden of alleging facts that affirmatively demonstrate the

trial court’s jurisdiction. Hidalgo Cty., 358 S.W.3d at 703.

       The party suing the governmental entity must establish the state’s consent,
       which may be alleged either by reference to a statute or to express
       legislative permission. Since as early as 1847, the law in Texas has been
       that absent the state’s consent to suit, a trial court lacks subject matter
       jurisdiction.

Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (internal citations omitted).

C. Discussion

       The County contends that the trial court lacked subject-matter jurisdiction in the

underlying proceedings and that we should therefore dismiss this case. More specifically,

the County claims that Palacios completely failed to meet her burden of showing that the

County’s governmental immunity had been waived. We agree with the County.

       In the present suit, Palacios never cited a specific statute or legislative permission

establishing the County’s consent to suit. See id. To the contrary, Palacios conceded

that there was no statute or legislative act that waived the County’s immunity from suit for

Palacios’s quantum meruit claim for back pay. Instead, Palacios relies solely on equity

and a Texas Attorney General opinion issued in 1974. See Tex. Att’y Gen. Op. No. H-

227 (1974). The Attorney General opinion stated that a “Justice of the Peace, convicted

of a felony involving official misconduct, who appeals the conviction, is entitled to



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emoluments of office pending the appeal, unless the convicting court finds that it is in the

best interest of the public to suspend him.” Id. Palacios contends she is entitled to back

pay because “there’s an issue of fundamental fairness and equity” and this Attorney

General opinion “leaves open the question” to whether she should be allowed to recover

her back pay and benefits.

       Palacios’s reliance on the Attorney General opinion is misplaced. It interpreted

Texas Revised Civil Statute article 5969. See TEX. REV. CIV. STAT. art. 5969 repealed by

Acts 1987, 70th Leg., ch. 149, § 49(1). That statute and related provisions are currently

housed in chapter 87 of the local government code which governs the removal of county

officers. See TEX. LOC. GOV’T CODE ANN. ch. 87 (West, Westlaw through 2017 1st C.S.).

Section 87.032 provides as follows:

       If the officer appeals the judgment, the appeal supersedes the order of removal
       unless the court that renders the judgment finds that it is in the public interest to
       suspend the officer pending the appeal. If the court finds that the public interest
       requires suspension, the court shall suspend the officer as provided by this
       chapter.

Id. § 87.032. Palacios was not “removed” from office; she was “suspended.” Palacios’s

suspension was initiated by the State Commission on Judicial Conduct pursuant to

chapter 33 of the government code. See TEX. GOV’T CODE ANN. ch. 33 (West, Westlaw

through 2017 1st C.S.). Therefore, the Attorney General opinion and chapter 87 of the

local government code are inapplicable to this case. Instead, the applicable statutory

provision is Section 33.037, titled “Suspension Pending Appeal”, which provides: “If a

judge who is convicted of a felony or a misdemeanor involving official misconduct appeals

the conviction, the commission shall suspend the judge from office without pay pending

final disposition of the appeal.” Id. § 33.037 (emphasis added). This statute operates



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differently than section 87.032 of the local government code in two key respects: (1) an

appeal does not supersede the judge’s removal from office; and (2) the judge remains

suspended without pay. There are no provisions within chapter 33 of the government

code, in which the legislature has waived immunity by clear and unambiguous language.

See York, 871 S.W.2d at 177.

      The Texas Supreme Court has reiterated throughout the years that governmental

immunity can only be waived by the Legislature. See City of El Paso v. Heinrich, 284

S.W.3d 366, 377 (Tex. 2009) (“As we have repeatedly noted, the Legislature is best

positioned   to   waive   immunity,   and   it   can   authorize   retrospective   relief   if

appropriate. There are cases in which prospective relief is inadequate to make the

plaintiff whole, but the contours of the appropriate remedy must be determined by the

Legislature.”); see also Albert, 354 S.W.3d at 373 (holding that waivers of immunity are

the “prerogative of the Legislature”); Jones, 8 S.W.3d at 638 (same); York, 871 S.W.2d

at 177 (same). Affirming this position, the Texas Supreme Court has rejected invitations

to recognize judicially created equitable exceptions to governmental immunity. See

Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 414 (Tex. 2011); see

also Salazar v. Lopez, 88 S.W.3d 351, 352–53 (Tex. App.—San Antonio 2002, no pet.)

(“Although [the plaintiff] makes an interesting argument [to recognize an equitable

exception], the waiver of governmental immunity is a matter addressed to the Legislature,

not the courts.”). Furthermore, several courts have specifically established that

governmental entities retain immunity from suits for back pay. See In re Nestle USA, Inc.,

359 S.W.3d 207, 212 (Tex. 2012) (orig. proceeding); see also Hinojosa v. Tarrant Cty.,




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355 S.W.3d 812, 814, 819 (Tex. App.—Amarillo 2011, no pet.); City of San Benito v.

Ebarb, 88 S.W.3d 711, 720 (Tex. App.—Corpus Christi 2002, pet. denied).

      Even if this case involves questions of “fairness and equity,” it does not subvert

Palacios’s burden to demonstrate subject-matter jurisdiction.      If Palacios’s relief is

inadequate in this case, it is up to the Legislature to determine the “contours of the

appropriate remedy.” Heinrich, 284 S.W.3d at 377. For example, after City of Houston

v. Williams, 216 S.W.3d 827, 828 (Tex. 2007), the Legislature passed section 180.006 of

the local government code to waive immunity to allow firefighters and police officers to

file claims for back pay and civil penalties. See TEX. LOCAL GOV’T CODE § 180.006 (West,

Westlaw through 2017 1st C.S.).

      We conclude that Palacios failed to allege sufficient facts to demonstrate the trial

court’s jurisdiction. See Miranda, 133 S.W.3d at 226. Because there is no legislative act

or statute that waives immunity in this suit, the case may be dismissed without an

opportunity to amend. See id. We sustain the County’s sole issue.

                                    III. CONCLUSION

      We reverse the trial court’s order and render judgment dismissing Palacios’s suit

against the County.

                                                             NORA L. LONGORIA
                                                             Justice
Delivered and filed the
19th day of December, 2018.




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