                    NUMBER 13-14-00054-CV

                    COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI – EDINBURG

RICHARD STUBBS,                                         Appellant,


                                v.


THE CITY OF WESLACO, AND
VERONICA RAMIREZ, IN HER
OFFICIAL CAPACITY AS
WESLACO CIVIL SERVICE
DIRECTOR,                                               Appellees.


              On appeal from the 92nd District Court
                   of Hidalgo County, Texas.


                  MEMORANDUM OPINION
    Before Chief Justice Valdez and Justice Garza and Longoria
            Memorandum Opinion by Justice Longoria
       In this case, Richard Stubbs appeals the trial court’s dismissal of his claims against

the City of Weslaco and Veronica Ramirez, in her official capacity as Weslaco’s civil

service director. As set forth below, we conclude that the trial court erred in dismissing

Stubbs’s claims against Ramirez to require her to process his appeal of Weslaco’s

termination of his employment to an independent third party hearing examiner.

Accordingly, we reverse the trial court’s order in part and remand the cause to the trial

court for further proceedings consistent with this memorandum opinion. See TEX. R. APP.

P. 43.2(d).

                                      I. BACKGROUND

       Stubbs was previously employed as a non-probationary firefighter with Weslaco’s

Fire Department when he sustained an injury unrelated to his employment that resulted

in a temporary disability. He was not able to return to work immediately. After Stubbs

had missed work for about a month, the fire chief sent him a written notice advising that

he had used all of his paid leave and was therefore being placed on temporary leave

without pay. See TEX. LOC. GOV’T CODE ANN. § 143.073(d) (West, Westlaw through 2013

3d C.S.). According to the notice, Stubbs would remain on temporary leave without pay

until he submitted to Weslaco’s Civil Service Commission a “100% clearance to return to

work” from his physician. See id. § 143.081(b) (West, Westlaw through 2013 3d C.S.).

       On November 9, 2012, Weslaco’s Human Resources Department forwarded to

Stubbs a written form entitled “Certification of Health Care Provider for Employee’s

Serious Health Condition (Family and Medical Leave Act)” and requested that Stubbs

have the form completed and returned by November 24, 2012. Stubbs did not comply.




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Thereafter, by written notice dated December 21, 2012, Weslaco informed Stubbs that it

was denying his FMLA benefits.

       On December 31, 2012, the fire chief met with Stubbs in person and advised him

that he needed an update and some form of documentation from his physician regarding

his health and when he was going to return to work. The fire chief gave Stubbs until

January 4, 2013 to produce the documentation. On January 4, 2013, the fire chief sent

Stubbs an email stating, “I have not heard or received anything from you or your physician

as of today.” Stubbs responded by email within the hour, explaining that he had requested

a prognosis letter from his physician. Attached to Stubbs’s email was an email from his

physician’s office manager stating that they were working on Stubbs’s prognosis letter

and that the letter would be “ready early next week.”

       On January 9, 2013, the fire chief sent Stubbs a notice that his employment was

terminated effective immediately. In relevant part, the notice stated as follows:

       To date you have not returned to work, supplied the City with the required
       FMLA Certification Form, or submitted the 100% clearance from your
       physician. You are not entitled to any additional leave under any federal or
       state family or medi[c]al leave laws or City policy and your accrued sick
       leave, vacation, personal days and compensation time have been
       exhausted.

       Taking the above into consideration, you are hereby terminated effective
       immediately in accordance with the FMLA and City policy.

       Subsequently, Stubbs hand delivered to Ramirez, the Director of Weslaco’s Civil

Service Commission, a written letter addressed to Weslaco’s Civil Service

Commissioners in which he expressly invoked the provisions of Chapter 143 of the Texas

Local Government Code, including Sections 143.010, 143.053, and 143.057, and

requested a hearing before an independent third party hearing examiner to challenge the



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termination of his employment. See id. §§ 143.010, 143.053 & 143.057 (West, Westlaw

through 2013 3d C.S.). Stubbs denied the truth of the charge made by the fire chief and

took exception to the legal sufficiency of the charge. Stubbs also stated that the action

recommended by the fire chief, referred to as a termination or indefinite suspension, did

not or would not fit the alleged offense. See id. § 143.052(b) (West, Westlaw through

2013 3d C.S.) (“An indefinite suspension is equivalent to dismissal from the department.”).

Stubbs advised the Commissioners that the parties had ten days from the date of his

letter, January 15, 2013, to agree on an impartial hearing examiner. See id. § 143.057(d).

       Ramirez responded to Stubbs in a letter dated January 24, 2013. She advised

Stubbs that he had not complied with Section 143.057(b) of the Texas Local Government

Code, concerning a firefighter’s right to appeal to an independent hearing examiner,

because he had addressed his request to the Commissioners and not to her specifically

as the Director of the Commission. See id. § 143.057(b). Ramirez quoted the language

of the statute, which states that a firefighter “must submit to the director a written request”

to appeal to a third party hearing examiner. Id. Although Ramirez acknowledged that

Stubbs had delivered the request to her in person, she maintained that the request was

fatally defective because it was addressed to the Commissioners and the Commission

had no statutory authority to grant the request.

       In her letter, Ramirez also acknowledged that Stubbs had invoked Section 143.010

of the Texas Local Government Code, concerning arbitration of an action from which an

appeal or review is provided by Chapter 143, but she maintained that there was no

statutory basis for Stubbs to appeal his discharge to an independent hearing examiner

under that statutory provision because he had not been indefinitely suspended for



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disciplinary reasons. See id. § 143.010 (West, Westlaw through 2013 3d C.S.). Ramirez

advised Stubbs that, based on the foregoing, Weslaco would refuse to participate in any

arbitration proceedings.

       Subsequently, Stubbs then filed this suit against Weslaco and Ramirez, in her

official capacity, alleging that his discharge was illegal and that the defendants had

deprived him of his statutory rights under the civil service act. In particular, Stubbs

specifically alleged that Weslaco and Ramirez had violated the civil service act by denying

him the right to appeal his discharge to an independent hearing examiner as he had

requested in his notice letter dated January 15, 2013.

       In his petition, Stubbs alleged that the termination notice was defective and

insufficient because it failed to identify any civil service rule that he had allegedly violated

and because it did not specify the grounds for his discharge beyond the language quoted

above. In addition, the notice did not advise Stubbs that he had a right to appeal the

discharge to the local civil service commission or to an independent third party hearing

examiner. According to Stubbs, the fire chief had a statutory obligation to report certain

information concerning the discharge and the grounds and circumstances for the

discharge to the local civil service commission and to provide Stubbs with notice of the

specific disclosures made to the commission; however, according to Stubbs, the fire chief

failed to report the necessary information to the commission as required by law.

       Stubbs requested that the trial court issue a writ of mandamus to compel Weslaco

and Ramirez to perform their ministerial and non-discretionary duty to process his appeal

as required by the civil service act. Stubbs specifically alleged that mandamus was

appropriate because he lacked an adequate alternative remedy to enforce his right to



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contest his discharge by appealing to an independent hearing examiner according to the

procedures set forth in the civil service act.

       In addition to a writ of mandamus, Stubbs requested that the trial court grant the

following relief in his favor: (1) declare that Weslaco and Ramirez have violated his rights

under the civil service act by discharging him for having a disability without following the

fitness-for-duty procedures specified by the civil service act; (2) enter an injunction

requiring Weslaco and Ramirez to reinstate him to the same rank and with the same

seniority he had before going on temporary leave and prohibiting them from discharging

him for a disability without utilizing the fitness-for-duty procedures; (3) alternatively,

declare that Weslaco and Ramirez discharged him for disciplinary reasons without

following the requirements of the civil service act; (4) enjoin Weslaco and Ramirez from

discharging him for disciplinary reasons without following the requirements of the civil

service act; (5) order Weslaco and Ramirez to pay attorney’s fees and costs; and (6) order

such further relief, at law or equity, to which he showed himself justly entitled.

       Subsequently, Weslaco and Ramirez filed an answer denying all of Stubbs’s

allegations, special exceptions to Stubbs’s petition, and a motion to dismiss Stubbs’s

claims against them for lack of jurisdiction. Weslaco and Ramirez asserted that, as

governmental actors, they were immune from suit under the doctrine of sovereign

immunity and that Stubbs had failed to establish a valid waiver of their immunity for any

of the claims he was asserting against them in this case. They explained that in his

petition, Stubbs had asserted two grounds for waiver based on two different statutory

provisions; however, they argued that those provisions did not waive their immunity from

suit and that the trial court had no jurisdiction over Stubbs’s claims against them.



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       Specifically, the defendants asserted that Section 180.006 of the Texas Local

Government Code, cited in Stubbs’s petition, is applicable only in a suit in which a

firefighter alleges that a municipality denied monetary benefits associated with the

recovery of back pay or a firefighter alleges the denial of monetary benefits associated

with the recovery of back pay owed under Section 143.134(h). See id. §§ 108.006 &

143.134(h) (West, Westlaw through 2013 3d C.S.). Therefore, only a firefighter asserting

a claim for back pay may assert Section 180.006 to establish a waiver of immunity

permitting judicial review of such denial. See id. § 180.006(c). Weslaco and Ramirez

argued that the limited waiver of immunity in Section 180.006 was inapplicable in this suit

because Stubbs had not asserted any claim for back pay. See id.

       In addition, Weslaco and Ramirez noted that in his petition, Stubbs had also cited

Section 37.009 of the Texas Civil Practice and Remedies Code, part of the Uniform

Declaratory Judgments Act, to establish that their immunity from suit had been waived for

his claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (West, Westlaw through 2013

3d C.S.). In a brief filed in support of their motion to dismiss and supplemental motion to

dismiss, the defendants explained that the Uniform Declaratory Judgments Act does not

enlarge a court’s jurisdiction. They argued, “Texas courts have held that plaintiffs may

not bring a suit for declaratory judgment and damages against a governmental

defendant.” Furthermore, according to the defendants, the trial court had no jurisdiction

and no authority to hear Stubbs’s claim for declaratory judgment because the trial court

could not grant the relief Stubbs had requested. Specifically, the defendants argued that

the trial court could not compel them to perform a function that they had no authority to

perform under Chapter 143 of the Texas Local Government Code.



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       Stubbs filed a combined motion for summary judgment and response to the

defendants’ motion to dismiss and supplemental motion to dismiss. In his response,

Stubbs took issue with the defendants’ representation to the trial court that he was

attempting to assert claims against them for money damages. Stubbs clarified that he

was asserting claims against the defendants for declaratory relief, injunctive relief, writ of

mandamus, and attorney’s fees under the Uniform Declaratory Judgments Act. Stubbs

pointed out that the Texas Supreme Court has consistently held that the sovereign

immunity of a governmental entity does not encompass immunity from suit for claims

brought under the Uniform Declaratory Judgments Act. Stubbs argued that his claims did

not implicate the doctrine of governmental immunity or the defendants’ immunity from suit

because he was not attempting to impose liability on them for money damages.

       In addition, Stubbs argued that the trial court did not lack jurisdiction over his claims

simply because the defendants were governmental actors who enjoy immunity from suit

in other instances. According to Stubbs, the defendants’ immunity from suit did not extend

to his claims to require them to comply with his statutory rights under the civil service act.

Stubbs argued that the trial court had jurisdiction over his claims even if the relief he was

requesting would compel the defendants to make a payment of money.

       Finally, Stubbs argued that, to the extent that his claims were considered claims

for monetary damages, the defendants did not have immunity from suit and the trial court

was not deprived of jurisdiction over the claims because Section 180.006 of the Texas

Local Government Code specifically waived the defendants’ immunity from suit for claims

for monetary benefits that a firefighter is entitled to recover under the provisions of

Chapters 141, 142, and 143 of the Texas Local Government Code. See TEX. LOC. GOV’T



                                               8
CODE ANN. § 180.006. Stubbs took the position that the statute’s waiver of immunity

applied to his claims for monetary damages, to the extent that he had asserted any such

claims, because his claims were for monetary benefits that he was entitled to recover

under the Texas Local Government Code, as stated in Section 180.006. See id. Based

on the foregoing, Stubbs maintained that the defendants were not entitled to have the trial

court dismiss his claims for lack of jurisdiction.

       The trial court ruled in the defendants’ favor and entered a written order granting

the defendants’ motion to dismiss and supplemental motion to dismiss and stating that

Stubbs’s claims were thereby dismissed with prejudice for lack of jurisdiction. Stubbs

now appeals to this Court.

                                         II. ANALYSIS

       By one issue, Stubbs contends that the trial court committed reversible error by

granting the defendants’ motion to dismiss and supplemental motion to dismiss and

dismissing his claims with prejudice for lack of jurisdiction.

A. Standard of Review

       The trial court must determine at its earliest opportunity whether it has the

constitutional or statutory authority to decide the case before allowing the litigation to

proceed. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

Whether a court has subject matter jurisdiction is a question of law. Id. Whether a pleader

has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction

is a question of law reviewed de novo. Id. Likewise, whether undisputed evidence of

jurisdictional facts establishes a trial court’s jurisdiction is also a question of law. Id.




                                               9
However, in some cases, disputed evidence of jurisdictional facts that also implicate the

merits of the case may require resolution by the finder of fact. Id.

B. Applicable Law

       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). Immunity

from suit bars an action against the state unless the state expressly consents to the suit.

Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). 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. Id. We interpret statutory

waivers of immunity narrowly, as the Legislature’s intent to waive immunity must be clear

and unambiguous. Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 655 (citing TEX.

GOV’T CODE ANN. § 311.034 (West, Westlaw through 2013 3d C.S.)).

C. Discussion

       Stubbs has asserted claims to require Weslaco and Ramirez to comply with certain

provisions of the civil service act authorizing a firefighter to appeal the termination of his

employment to an independent third party hearing examiner. See TEX. LOC. GOV’T CODE

ANN. § 143.057. Under the ultra vires exception to immunity, “suits to require state

officials to comply with statutory or constitutional provisions are not prohibited by

sovereign immunity, even if a declaration to that effect compels the payment of money.”

City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) (explaining the ultra vires

exception to immunity). However, such claims cannot be brought against Weslaco,

because it retains immunity; therefore, the claims must be brought against Ramirez in her



                                             10
official capacity. See id. at 373. Accordingly, the trial court did not err in dismissing the

claims against Weslaco for lack of jurisdiction.

       Moreover, the only claims against Ramirez that survive the jurisdictional challenge

are those for a declaratory judgment, injunctive relief, and writ of mandamus to require

her to process Stubbs’s appeal as required by the civil service act. See Bell v. City of

Grande Prairie, 221 S.W.3d 317, 325 (Tex. App.—Dallas 2007, no pet.) (op. on reh’g)

(“However, to the extent the requested injunction would require the City’s officers to follow

the law in the future and does not seek money damages, it is not barred by the City’s

immunity to suit.”). We express no opinion on the merits of Stubbs’s claims. We hold

that the claims are within the trial court’s subject matter jurisdiction and therefore should

not have been dismissed. It is for the trial court to decide in the first instance whether

Stubbs is entitled to the relief requested in his live pleading based on these claims.

       If Stubbs prevails in the trial court, he will establish and be able to enforce his right

to have the fire chief’s action in terminating his employment reviewed by the commission

or an independent hearing examiner, as set forth in the civil service act. See TEX. LOC.

GOV’T CODE ANN. § 143.053(b); id. § 143.057(a)–(b); City of DeSoto v. White, 288 S.W.3d

389, 392 (Tex. 2009) (“Chapter 143 of the Local Government Code, known as the Fire

Fighter and Police Officer Civil Service Act, outlines the disciplinary process by which a

municipality may suspend an officer and how that officer may appeal the suspension.”).

       To the extent Stubbs seeks reinstatement and further injunctive relief from the trial

court in this proceeding, we hold that the trial court properly dismissed those claims for

lack of jurisdiction because Stubbs failed to establish a valid waiver of immunity for such

claims and because, in any event, the commission or hearing examiner has exclusive



                                              11
jurisdiction over these claims. See Thomas v. Long, 207 S.W.3d 334, 341 (Tex. 2006)

(noting that “an employee subject to for-cause termination has a property interest in

continued employment sufficient to entitle the employee to judicial review of an

administrative decision to terminate employment,” but holding that “the Commission had

exclusive jurisdiction over the employment dispute in this case”). Of course, in the event

that Stubbs is able to appeal the fire chief’s actions to the commission or an independent

third party hearing examiner, the civil service statute authorizes such relief and provides

the opportunity for further proceedings in the district court if Stubbs is not satisfied with

the results or relief obtained.    See TEX. LOC. GOV’T CODE ANN. § 143.015(a); id. §

143.057(c)–(j); Bracey v. City of Killeen, 417 S.W.3d 94, 104 (Tex. App.—Austin 2013,

no pet.).

       Stubbs’s issue is sustained in part and overruled in part.

                                       III. CONCLUSION

       The trial court’s order dismissing Stubbs’s suit for lack of jurisdiction is reversed in

part as stated herein, and the cause is remanded to the trial court for further proceedings

consistent with this memorandum opinion.




                                                   NORA L. LONGORIA
                                                   Justice
Delivered and filed the
8th day of January, 2015.




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