                            NUMBER 13-11-00007-CV

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


SAN PATRICIO COUNTY AND SAN PATRICIO
COUNTY COMMISSIONERS COURT,                                               Appellants,

                                           v.

JUAN GONZALEZ, AS PRECINCT 5 CONSTABLE,                                     Appellee.


                   On appeal from the 343rd District Court
                       of San Patricio County, Texas.


                            MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Chief Justice Valdez

      In this interlocutory appeal, appellants, San Patricio County and the San Patricio

County Commissioners Court, appeal from the denial of a plea to the jurisdiction by the

343rd Judicial District Court of San Patricio County. For the reasons set forth below, we

reverse and render.
                                     I. Background

      Appellee, Juan Gonzalez, filed this suit against appellants, alleging discrimination

and violations of the equal protection and due process clauses of the United States and

Texas Constitutions.      The allegations arise from appellants‟ refusal to approve

appellee‟s proposed budget for the Precinct 5 Constable for fiscal year 2009.

Appellee‟s proposed budget included a 10% salary increase given across the board to

other county officials.   On July 28, 2008, appellants provided appellee with written

notice of his salary and other funding for 2009. On August 4, 2008, appellee spoke to

County Judge Terry Simpson, chairman of the county‟s salary grievance committee,

about his salary for 2009, but appellee did not file a written grievance or request a

hearing before the committee to contest his salary.

      On April 29, 2010, appellee filed this suit, alleging that appellant acted unlawfully

in denying his proposed budget. Appellants deny any wrongdoing and maintain that the

proposed budget was denied because it was untimely.

      After the suit was commenced, appellants filed a plea to the jurisdiction, citing the

failure of appellee to exhaust all administrative remedies prior to filing suit as grounds

for dismissal. The district court held a hearing on the plea to the jurisdiction, during

which the court heard testimony from witnesses and arguments by counsel. At the

hearing, appellee stipulated that he did not request a hearing before the salary

committee. The district court subsequently denied appellants‟ plea to the jurisdiction,

and this appeal ensued.

                                  II. Issue Presented




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       In a single issue, appellants contend that pursuant to section 152.0165(a) of the

Texas Local Government Code and section 311.034 of the Texas Code Construction

Act, the district court erred when it denied appellants‟ plea to the jurisdiction because it

did not have subject matter jurisdiction to hear appellee‟s suit for discrimination and

violation of the equal protection and due process clauses of the United States and

Texas Constitutions.

                                          III. Analysis

       Jurisdiction is a question of law, which we review de novo. See Tex. Dept. of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); El Paso Nat. Gas Co. v.

Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999).

       In relevant part, the local government code provides as follows:

              “An elected county or precinct officer who is aggrieved by
              the setting of the officer‟s salary or personal expenses may
              request a hearing before the salary grievance committee
              before the approval of the county‟s annual budget. The
              request must:

                     (1) be in writing;

                     (2) be delivered to the committee chairman within five
                     days after the date the officer receives notice of the
                     salary or personal expenses; and

                     (3) state the desired change in salary or personal
                     expenses.”

TEX. LOC. GOV‟T CODE ANN. § 152.016(a) (West 2010).

       At the hearing on the plea to the jurisdiction, appellee stipulated that he did not

request a hearing before the salary committee. To the extent that appellee raised a

grievance concerning his salary with Judge Simpson, chairman of the county‟s salary

grievance committee, appellee failed to follow the procedure required by the statute by

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making a written request for a hearing specifying the desired change in salary and

delivering the written request within the time frame prescribed. See id.

      The local government code specifically states, “An elected county or precinct

official may not file suit regarding the officer‟s salary or personal expenses unless a

hearing has been requested and held under section 152.016.” TEX. LOC. GOV‟T CODE §

152.0165(a) (West 2010). Chapter 311 of the Texas Government Code, also known as

the Code Construction Act (the “Act”), supplies the following construction to the phrases

“must” and “may not”:

             “„Must‟ creates or recognizes a condition precedent”; and

             “„May not‟ imposes a prohibition that is synonymous with
             „shall not.”

TEX. GOV‟T CODE ANN. § 311.016(3), (5) (West 2010).          The Act also provides that

“statutory prerequisites to a suit, including the provisions of notice, are jurisdictional

requirements in all suits against a governmental entity.”      TEX. GOV‟T CODE ANN. §

311.034 (West 2010); see State v. Lueck, 290 S.W.3d 876, 882-83 (Tex. 2009).

      Based on the foregoing authorities, we conclude that appellee‟s failure to request

and obtain a hearing pursuant to sections 152.016(a) and 152.0165(a) of the local

government code deprived the district court of subject matter jurisdiction over the claims

made in his suit against appellants.      See TEX. LOC. GOV‟T CODE §§ 152.016(a),

152.0165(a); TEX. GOV‟T CODE § 311.034. Accordingly, we sustain appellants‟ issue on

appeal.




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                                     IV. Conclusion

       For the reasons set forth above, we reverse the order of the district court denying

appellants‟ plea to the jurisdiction and render judgment dismissing the case for lack of

jurisdiction.

                                                       _____________________
                                                       ROGELIO VALDEZ
                                                       Chief Justice

Delivered and filed the
4th day of August, 2011.




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