                                  NO. 07-10-00025-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  OCTOBER 21, 2011


                         PETER LEE HINOJOSA, APPELLANT

                                            v.

                          TARRANT COUNTY, TEXAS
                   AND THOMAS A. WILDER, DISTRICT CLERK OF
                     TARRANT COUNTY, TEXAS, APPELLEES


            FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY;

         NO. 342-234146-08; HONORABLE ROBERT S. MCGRATH, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                        OPINION

       The trial court dismissed the case filed by appellant Peter Lee Hinojosa for want

of subject-matter jurisdiction based on the asserted governmental immunity of appellees

Tarrant County and its district clerk, Thomas Wilder. We will affirm.


                                       Background

       Hinojosa began employment with Tarrant County on March 1, 1976, and moved

to the district clerk’s office in April 1991. On May 15, 2006, district clerk Wilder issued

Hinojosa a memo regarding “re-organization plan--FY2007 Budget.” According to the
memo, the reorganization plan would eliminate Hinojosa’s position effective September

30, 2006.


       Tarrant County has promulgated rules for reductions in force. Under those rules,

in the event certain types of employees are considered for layoff, layoff ratings are

calculated according to a formula and the employee with the lowest rating is laid off.

Under the circumstances of the reorganization of the district clerk’s office, the county

director of human resources concluded layoff ratings were not required.          Hinojosa

retired on September 30, 2006. After that date, he performed no work for the county.


       Hinojosa filed a grievance with the county’s civil service commission contending

calculation of layoff ratings was required.        On January 29, 2007, the commission

announced its decision, agreeing that layoff ratings were required. The commission did

not reduce its findings to writing but its oral rendition in part provided:


       [A]fter deliberation of the Commissioners, we overturn the decision that
       was made by the Appointed Authority. . . . And therefore, we feel that Mr.
       Hinojosa will be entitled to backpay (sic) from October 1st until such time,
       that the Appointed Authority follow the procedures for and determine, the
       layoff. . . . That’s backpay (sic) and whatever benefits that were accrued
       until such time, from October 1st until such time the Appointed Authority
       follow such Rules.
       [W]e’re just saying that the proper Civil Service Rules were not followed
       and so we overturn any decisions that were made prior to today and it
       says follow the Rule and then decide who needs to be eliminated.
The commission did not order Hinojosa reinstated.            When the layoff ratings were

calculated, Hinojosa received the lowest rating.


       Thereafter, despite requests, Hinojosa did not receive the back pay ordered by

the commission. On December 2, 2008, Hinojosa petitioned the district court for a writ
                                               2
of mandamus compelling the county and Wilder to comply with the commission’s order.

Asserting governmental immunity, Wilder filed a plea to the jurisdiction and the county

moved to dismiss Hinojosa’s petition for want of jurisdiction.1 By one order, the trial

court granted the requests of the county and Wilder and dismissed the case for want of

subject-matter jurisdiction. Hinojosa appeals.


                                         Analysis


      Hinojosa presents five issues, asserting: (1) the trial court possesses original

mandamus jurisdiction over county officials; (2) jurisdiction exists under Chapter 158 of

the Local Government Code; (3) the governmental immunity-retrospective damages

argument of the county and Wilder does not apply; (4) Article III, §§ 52 and 53, of the

Texas Constitution do not prohibit an award of back pay; and (5) Hinojosa chose not to

appeal the order of the commission because he prevailed.


      By his first, second, and third issues, Hinojosa challenges the trial court’s

dismissal of his claims for want of subject-matter jurisdiction on the basis of

governmental immunity. Whether the trial court lacks subject-matter jurisdiction is a

question of law we review de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007).

“Sovereign immunity and its counterpart, governmental immunity, exist to protect the

State and its political subdivisions from lawsuits and liability for money damages.”

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); Reata


      1
         Governmental immunity protects political subdivisions of the State, including
counties, cities and school districts from suit and liability. Wichita Falls State Hosp. v.
Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2002).

                                            3
Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).        Sovereign and

governmental immunities encompass two distinct principles, immunity from suit and

immunity from liability. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

224 (Tex. 2004); Channelview Indep. Sch. Dist. v. A.R.C.I., Ltd., 199 S.W.3d 556, 559

(Tex.App.--Houston [1st Dist.] 2006, no pet.). Immunity from liability is an affirmative

defense subject to waiver, but immunity from suit deprives a court of subject-matter

jurisdiction. Miranda, 133 S.W.3d at 224. A county and its agents, when acting in their

official capacity, are governmental units and immune from suit. Travis County v. Pelzel

& Assocs., Inc., 77 S.W.3d 246, 248 (Tex. 2002); Morris v. Copeland, 944 S.W.2d 969,

698-99 (Tex.App.--Corpus Christi 1997, no pet.).


      We turn first to Hinojosa’s pleadings and the nature of his claims.2 Pertinent to

this discussion Hinojosa alleged:


      [The commission] ordered [the county and Wilder] to pay [Hinojosa] back
      pay . . . .

      [The county and Wilder] are required by law to fully comply with an Order
      of the [commission], to follow a valid Order and to pay [Hinojosa] back
      pay.



      2
          Hinojosa’s pleadings do not expressly state in what capacity he sued Wilder. In
such instances, we look to the course of proceedings, which typically indicate the nature
of the liability sought to be imposed. City of El Paso v. Heinrich, 284 S.W.3d 366, 377
(Tex. 2009) (citing Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S.Ct. 3099, 87
L.Ed.2d 114 (1985)). Hinojosa seeks an order compelling payment by the county of
back pay awarded by the commission. His petition names Wilder as district clerk of
Tarrant County. Considering the nature of the liability sought to be imposed and
affording Hinojosa’s pleadings a liberal construction, we conclude Wilder was sued in
his official capacity.

                                           4
      [The county and Wilder] have declined to follow the Commission’s lawful
      Order in Hinojosa’s favor and have continued to ignore the lawful Order.
      As a result of [the county’s and Wilder’s] unlawful conduct, Hinojosa seeks
      a writ of Mandamus to compel [the county and Wilder] to comply with the
      Commission’s order. Hinojosa further says that by failing to follow a lawful
      Order [of the commission] a writ of Mandamus should issue to correct a
      clear abuse of discretion.

By his petition, Hinojosa prayed that the county and Wilder be required to comply with

the order, “plus interest.”   Attached to Hinojosa’s petition are a transcript of the

commission hearing ordering back pay and benefits and a letter from Hinojosa to the

county seeking back pay and benefits.3 The letter demands back pay and benefits of

$47,139.05 for the period October 1, 2006 through February 28, 2007. We conclude

Hinojosa sought a writ of mandamus compelling the county and Wilder to pay him back

pay and benefits.


      We next consider whether governmental immunity bars Hinojosa’s request for a

writ of mandamus compelling payment of back pay and benefits.             A district court

possesses mandamus jurisdiction over county officials. Vondy v. Commissioners Court,

620 S.W.2d 104, 109 (Tex. 1981).


      A writ of mandamus will issue to compel a public official to perform a
      ministerial act. An act is ministerial when the law clearly spells out the
      duty to be performed by the official with sufficient certainty that nothing is
      left to the exercise of discretion. Furthermore, a writ of mandamus will not
      issue to compel a public official to perform an act which involves an
      exercise of discretion. However, this rule is not without exception--a writ
      3
        In the letter attached to his pleading, Hinojosa argued he was still a county
employee and “ready to continue serving the citizens of Tarrant County.” If Hinojosa
believed he was entitled to reinstatement, which the commission did not grant, his
remedy was by an appeal to the district court to be perfected within thirty days of the
commission’s January 29, 2007, order. Tex. Local Gov’t Code Ann. § 158.012(a) (West
2008). Hinojosa did not pursue an appeal.
                                            5
      of mandamus may issue in a proper case to correct a clear abuse of
      discretion by a public official.

Anderson v. Seven Points, 806 S.W.2d 791, 793 (Tex. 1991) (citations omitted). Thus,

mandamus as a remedy for wrongs of the State and its officials is not per se precluded

by governmental immunity.     See City of Seagoville v. Lytle, 227 S.W.3d 401, 411

(Tex.App.--Dallas 2007, no pet.) (reinstatement of employee to position and pay grade

not barred by governmental immunity). Mandamus is appropriate to enforce equitable

relief ordered by a county civil service commission. Sheppard v. Thomas, 101 S.W.3d

577, 582 (Tex.App.--Houston [1st Dist.] 2003, pet. denied). However, absent a waiver

mandamus will not issue to compel payment by the State of money damages. Lytle,

227 S.W.3d at 411; cf. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d

849, 856 (Tex. 2002) (“private parties cannot circumvent the State’s sovereign immunity

from suit by characterizing a suit for money damages, such as a contract dispute, as a

declaratory-judgment claim”). Such a claim is an impermissible attempt to control state

action by imposing liability on the State. See IT-Davy, 74 S.W.3d at 856; Anderson v.

City of McKinney, 236 S.W.3d 481, 483 (Tex.App.--Dallas 2007, no pet.) (suit is barred

by governmental immunity if only plausible remedy is award of money damages).


      A claim for back pay and benefits as compensation for pay lost during a period

when the employee was wrongfully prevented from working for the employer is a claim

for money damages. City of Round Rock v. Whiteaker, 241 S.W.3d 609, 634 (Tex.

App.--Austin 2007, pet. denied). See City of El Paso v. Heinrich, 284 S.W.3d 366, 374

(Tex. 2009) (citing City of Houston v. Williams, 216 S.W.3d 827, 828-29 (Tex. 2007)

(per curiam), and explaining Williams stands for proposition that retrospective monetary

                                           6
claims are generally barred by immunity). Of relevance here, the court in Williams

noted, “[t]he only injury the [the claimants] allege has already occurred, leaving them

with only one plausible remedy--an award of money damages.” 216 S.W.3d at 829.


       Hinojosa sought a writ of mandamus compelling the county and Wilder to make

payment to him of back pay and benefits. The compensation sought was for a period

Hinojosa did not perform work for the county and was, according to his pleading,

prevented from working for the county.4 Notwithstanding the nature of the remedy

employed, this was simply a claim for payment of money damages asserted against a

governmental entity and its officer.         See Lytle, 227 S.W.3d at 411 (petition for

mandamus seeking back pay was claim for money damages); cf. City of Dallas v.

Albert, No. 07-0284, 2011 Tex. Lexis 636, at *26-27 (Tex. Aug. 26, 2011) (citing

Heinrich, 284 S.W.3d at 376) (explaining “Heinrich clarified that only prospective, not

retrospective, relief is available in an ultra vires claim”).


       Hinojosa urges the decision in Sheppard v. Thomas should guide our decision

and requires the county and Wilder to comply with the commission’s order. Sheppard,

101 S.W.3d 577 (Tex.App.--Houston [1st Dist.] 2003, pet denied). Sheppard challenged

his termination as a Harris County deputy sheriff in a proceeding before the county civil

service commission.      The commission issued two orders requiring reinstatement of

Sheppard to his former position without completing a physical-ability test. Id. at 582.

The sheriff refused to comply and Sheppard sought a writ of mandamus in the district

court compelling reinstatement without completing the test. Id. at 581. The court of


       4
           As noted, Hinojosa retired on September 30, 2006.
                                                7
appeals    concluded   compliance    with   the   orders   of   the   commission   was   a

nondiscretionary ministerial act and remanded the case for rendition of a judgment

granting the mandamus relief Sheppard requested.           Id. at 583.    While Sheppard

illustrates use of mandamus to compel performance of a ministerial act by a

governmental entity, we find it inapposite here.     The commission denied Sheppard

“back wages,” a determination he did not challenge. Id. at 579. He therefore did not

seek money damages by his mandamus proceeding; rather, his claim was for equitable

reinstatement. This is a critical distinction. See Lytle, 227 S.W.3d at 411 (mandamus to

restore officer to position and pay grade not barred by immunity but mandamus seeking

back pay is a claim for money damages that is barred by immunity). The only relief

Sheppard sought was not precluded by immunity.5 Sheppard does not assist Hinojosa.

Absent an express waiver, governmental immunity bars Hinojosa’s claim for money

damages. See IT-Davy, 74 S.W.3d at 858.


      With regard to the existence of a waiver of governmental immunity, we begin by

observing the mandate that “a statute shall not be construed as a waiver of sovereign

immunity unless the waiver is effected by clear and unambiguous language.” Tex. Gov’t

Code Ann. § 311.034 (West Supp. 2010); Tooke v. City of Mexia, 197 S.W.3d 325, 328-

29 & n.2 (Tex. 2006) (noting that governmental immunity is “waived only by clear and

unambiguous language”). Hinojosa first points out his award of back pay by the

commission was authorized by statute and rule. Pursuant to provisions of Subchapter A

(“County Civil Service System”) of Chapter 158 (“County Civil Service”) of the Local

Government Code, Tarrant County created a civil service system and appointed a civil

      5
          The court of appeals made no discussion of immunity.
                                            8
service commission. The commission adopted rules regarding, among other things,

layoff and dismissal of county employees. Tex. Local Gov’t Code Ann. §§ 158.001,

158.008, 158.009(a)(5) (West 2008).        Authority to enforce the rules is in the

commission. Id. at § 158.009(a). The record indicates the commission adopted rules

authorizing it to order reinstatement with or without back pay. Tarrant County Civil

Service Rules 8.00(f)(3)(4) (Nov. 2005).


      Section 158.012 contains an express provision for judicial review by a district

court, under the substantial evidence rule, of certain final decisions by the commission.

The section allows the district court to order reinstatement, back pay or other

appropriate relief. Tex. Local Gov’t Code Ann. § 158.012 (West 2008). As the supreme

court has noted, by authorizing judicial review of the actions of a governmental body,

the Legislature necessarily has indicated its understanding that the body “would be

sued in court by persons exercising that right,” and thus provides a limited waiver of

immunity. Tex. Dep’t of Protective & Regulatory Svcs. v. Mega Child Care, Inc., 145

S.W.3d 170, 198 (Tex. 2004). But the judicial review provided by § 158.012 is limited to

appeal, by the employee, of a commission decision.6 Because those are not the facts

before us, we need not address the availability, as against a claim of immunity, of an

award of back pay to an employee appealing a commission decision under § 158.012.

For our purpose, it is sufficient that we conclude § 158.012 does not represent “by clear

and unambiguous language,” Tooke, 197 S.W.3d at 328, a more general waiver of

      6
       Hinojosa did not appeal the commission’s decision because it gave him what he
wanted. And, as his brief points out, Hinojosa was not “demoted, suspended, or
removed” by the commission’s order. See Tex. Local Gov’t Code Ann. § 158.012(a)
(West 2008) (providing county employee who on final decision by the commission is
demoted, suspended, or removed from employee’s position may appeal).
                                           9
immunity permitting judicial enforcement against the county of a commission decision

ordering payment of back pay and benefits for a period Hinojosa did not perform work

for the county. In Whiteaker, the court pointed out that Chapter 143 provides appellate

remedies waiving governmental immunity to a limited extent.         241 S.W.3d at 639.

Despite the presence in Chapter 143 of limited waivers, not specifically invoked by

Whiteaker, the court could not “discern any other basis in chapter 143—explicit or

implicit—for concluding that the legislature clearly and unambiguously intended to waive

governmental immunity against a claim like Whiteaker’s in particular.” Id. We similarly

cannot discern a basis in Chapter 158 for a clear and unambiguous waiver of the

county’s immunity against a claim like that asserted by Hinojosa.


      Other than the limited waiver for judicial review under § 158.012, Subchapter A of

Chapter 158 contains no express waiver of immunity. Considering whether statutory

provisions were intended by the Legislature to waive immunity, courts may ask “whether

a statute makes any sense if immunity is not waived.” Kerrville State Hosp. v.

Fernandez, 28 S.W.3d 1, 6 (Tex. 2000); accord, Tex. Dep’t of Transp. v. City of Sunset

Valley, 146 S.W.3d 637, 643 (Tex. 2004).        Broadly, Subchapter A of Chapter 158

provides a regulatory scheme addressing such employment issues as promotions,

seniority, tenure, layoffs, dismissals, disciplinary actions and grievances. Tex. Local

Gov’t Code Ann. § 158.009(a) (West 2008). The functionality of Subchapter A does not

turn on a waiver of governmental immunity.


      The legislative grant of power to the civil service commission to adopt limited

rules does not authorize the commission to promulgate rules waiving or abrogating the

                                           10
immunity of the county and its officers. Rather, this determination is singularly that of

the Legislature. IT-Davy, 74 S.W.3d at 857 (“it is the Legislature’s sole province to

waive or abrogate sovereign immunity”); cf. Tex. Natural Res. Conservation Comm’n v.

Lakeshore Util. Co., 164 S.W.3d 368, 377 (Tex. 2005) (an administrative agency is a

creature of the Legislature with no inherent authority of its own and may accordingly

exercise only those powers the Legislature confers on it by clear and express

language).


      As the supreme court pointed out in Heinrich, 284 S.W.3d at 377, after issuance

of its opinion in Williams the Legislature enacted § 180.006 of the Local Government

Code, entitled “Sovereign or Governmental Immunity Waived for Certain Claims,” which

contains an express limited waiver of immunity for certain claims for back pay and civil

penalties, but only for firefighters and police officers.   Tex. Loc. Gov’t Code Ann §

180.006 (West 2008). The supreme court at the same time reiterated its oft-noted

conviction that the Legislature is best positioned to determine when waiver of immunity

is appropriate. Id. Observing that admonition, and the requirement that waivers be

expressed in clear and unambiguous language, we cannot agree that the Legislature

has waived the county’s immunity from money damage claims brought by county

employees against their employing counties and their officers.


      Concluding the relief Hinojosa sought by his petition for writ of mandamus was

nothing more than an order compelling the county and its officer to pay him money

damages and the Legislature has not waived immunity for money damage claims under

the facts here presented, we overrule Hinojosa’s first, second, and third issues.

                                            11
       Hinojosa’s fourth and fifth issues respond to arguments the county and Wilder

urged in the trial court. Discussion of these issues is not necessary to our disposition of

this appeal. Tex. R. App. P. 47.1.


                                       Conclusion


       Because we agree with the trial court that governmental immunity deprived the

court of jurisdiction to adjudicate the claims asserted by Hinojosa, we affirm the trial

court’s judgment.




                                                        James T. Campbell
                                                             Justice




                                            12
