
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-02-00233-CV


Hardin County Community Supervision and Corrections Department, Appellant

v.

Patricia Sullivan and Dannah Broughton, Appellees





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. 97-02945A, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING


O P I N I O N


	This is an employment discrimination case filed under the Texas Commission on
Human Rights Act (the Act). (1)  See Tex. Lab. Code Ann. §§ 21.001-.306 (West 1996 & Supp. 2003). 
Patricia Sullivan and Dannah Broughton brought suit against Hardin County Community
Supervision and Corrections Department (HCCSCD), alleging that they were terminated by
HCCSCD because of their age.  HCCSCD filed a motion for summary judgment and plea to the
jurisdiction on the basis that it is not an "employer" as that term is defined in the Act.  The trial court
denied HCCSCD's motion and plea and HCCSCD filed this interlocutory appeal. (2)  Tex. Civ. Prac.
& Rem. Code § 51.014.  For the reasons set forth below, we vacate the trial court's judgment and
dismiss this case for want of subject-matter jurisdiction. 

BACKGROUND
	Sullivan and Broughton served as adult probation officers for the Hardin County
Community Supervision and Corrections Department.  Community Supervision and Corrections
Departments (CSCDs) in Texas, formerly called Probation Departments, are established in each
judicial district by the district judge or judges trying criminal cases.  CSCDs are responsible for
conducting pre-sentence investigations of criminal defendants, supervising and rehabilitating
defendants placed on community supervision, enforcing the conditions of community supervision,
and staffing community corrections facilities.  See Tex. Gov't Code Ann. §§ 76.001-.017 (West 1998
& Supp. 2003). (3)  The Community Justice Assistance Division (CJAD), a department of the Texas
Department of Criminal Justice, is under a statutory mandate to establish minimum standards for
programs, facilities, and services provided by CSCDs and to fund their programs, facilities, and
services.  In addition, CJAD is responsible for inspecting and auditing these local departments.  See
id. §§ 509.001-.012 (West 1998 & Supp. 2003).
	In 1995, CJAD audited the Hardin County CSCD and found several problems.  One
of the problems CJAD found involved HCCSCD's reporting and receiving state payments for
completing pre-sentence investigation reports that were ineligible for state funding.  As a result,
CJAD imposed fiscal and management controls over HCCSCD.  Concurrent with CJAD taking over
HCCSCD, a new director, Cindy Cain, was hired.  Ms. Cain was advised by the district judge to
inform CSCD employees that she would be re-examining and restructuring the department and that
there might be a reduction in the work force.  On June 5, 1995, three probation officers, including
Sullivan and Broughton, received letters from Cain advising them that because of drastic cuts in state
funding, she had to reduce the workforce and they were being terminated.  Both Sullivan and
Broughton were over the age of forty.  Sullivan and Broughton sued HCCSCD, alleging age
discrimination. (4)  HCCSCD filed a motion for summary judgment and plea to the jurisdiction, which
the trial court denied. (5)  HCCSCD appeals the trial court's denial of its plea, arguing (1) CSCDs are
not employers under the Act; and (2) Sullivan and Broughton were employed by the district judges,
not by HCCSCD. (6)

DISCUSSION
	A plea to the jurisdiction contests a trial court's subject matter jurisdiction.  Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); see also Texas Dep't of Transp. v. Jones,
8 S.W.3d 636, 637 (Tex. 1999).  Because subject matter jurisdiction poses a question of law, we
review rulings on a plea to the jurisdiction de novo.  See Mayhew v. Town of Sunnyvale, 964 S.W.2d
922, 928 (Tex. 1998).
	The plaintiff bears the burden of pleading facts that show the trial court has subject
matter jurisdiction; therefore, we examine a plaintiff's good faith factual allegations to determine
whether the trial court has jurisdiction.  Texas Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 587
(Tex. 2001) (citing Texas Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex.
2001)) (whether plaintiff has affirmatively demonstrated court's jurisdiction to hear cause governed
by "facts alleged by the plaintiff, and to the extent it is relevant to the jurisdictional issue, the
evidence submitted by the parties"); Brannon v. Pacific Employers Ins. Co., 224 S.W.2d 466, 469
(Tex. 1949).  The nature of the issues raised in a plea to the jurisdiction determines the scope of the
court's focus; this means we may look beyond the pleadings and are required to do so when
necessary to resolve the jurisdictional issues raised.  Bland Indep. Sch. Dist., 34 S.W.3d at 555. 
Unless there is fraudulent pleading to confer jurisdiction or the face of the petition affirmatively
demonstrates a lack of jurisdiction, the trial court must liberally construe the plaintiff's allegations
in favor of jurisdiction.  See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex.
1996); Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex. 1989).  On appeal, HCCSCD claims
that because it is not an employer under the Act, it is not subject to suit.  HCCSCD argues that the
employer is the district judges. (7)  We agree with HCCSCD and will address its second argument first.
	The government code specifically states the district judges shall "employ district
personnel as necessary to conduct presentence investigations, supervise and rehabilitate defendants
placed on community supervision, enforce the conditions of community supervision, and staff
community corrections facilities."  Tex. Gov't Code Ann. § 76.002(a)(2) (West 1998).  The district
judges participate in the management of the department, appoint the department director, and employ
and pay district personnel.  See id. §§ 76.002(b), .004(a), .006(b). 
	The employment status of probation officers and employees of CSCDs has been
described by one commentator as "murky."  See 36 David B. Brooks, County and Special District
Law § 22.31, 111-12 (1989).  However, several courts have held them to be officers and employees
of the judicial districts they serve rather than employees of the county.  In Shore v. Howard, 414 F.
Supp. 379, 385-86 (N.D. Tex. 1976), as in the case at bar, the plaintiffs were terminated by the
CSCD director.  The issue was whether the CSCD was the plaintiff's employer.  Under a statute
similar to the one in this case, the court held that probation department employees were employees
of the district judges, stating "[j]udges are given the ultimate power to employ and dismiss
individuals in the . . . Adult Probation Office.  Any actions by Defendant Howard in his official
capacity would be as an agent for the Judges."  Id. at 385.  The court went on to say that "[a]ny
equitable relief granted must therefore be directed against the 'Judges . . . .'"  Id.; see also Clark v.
Tarrant County, 608 F. Supp. 209, 211 (N.D. Tex. 1976) (holding that probation department
employees were not county employees), rev'd in part on other grounds, 798 F.2d 736, 739 (5th Cir.
1986).
	Additionally, when faced with questions regarding CSCDs, the attorney general has
concluded that adult probation department officers and employees are employees of the judicial
district they serve.  See Op. Tex. Att'y Gen. No. JC-0314 (2000) ("Courts and this office have held
that adult probation department officers and employees are not county officers and employees; they
are officers and employees of the judicial districts they serve."); Op. Tex. Att'y Gen. L.O. No. 97-090 (1997) ("Judges, not the director, are ultimately responsible to appoint department personnel."). 
While attorney general opinions do not carry the decisive weight of case law, they are generally
regarded as highly persuasive and entitled to careful consideration by the courts.  Shore, 414 F. Supp.
at 390.  We hold that it is the district judges of the judicial district, and not HCCSCD, that is the
employer of Sullivan and Broughton. 
	Generally, the state of Texas has sovereign immunity from suit unless immunity has
been waived by the legislature.  Tex. Natural Rex. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849,
853-54 (Tex. 2002).  In employment discrimination cases, the legislature has waived immunity under
the Act for "employers" engaging in unlawful employment practices.  See Tex. Lab. Code Ann.
§§ 21.001-.306.  However, Sullivan and Broughton have brought suit against a governmental entity
which we have determined is not their employer.  Moreover, Sullivan and Broughton admit in their
brief that "pursuant to state law, ultimate control of HCCSCD is vested in the district judges . . . and
state judicial districts."  Because we hold that HCCSCD is not Sullivan and Broughton's employer,
they have sued an entity for which immunity has not been waived under the Act.  Therefore, the trial
court does not have jurisdiction over this suit and should have granted HCCSCD's plea to the
jurisdiction. 

CONCLUSION
	Having decided that it is the district judges, and not HCCSCD, that are Sullivan and
Broughton's employer within the meaning of the Act, we vacate the trial court's judgment and
dismiss this case for want of subject-matter jurisdiction.


					__________________________________________
					David Puryear, Justice
Before Justices Patterson, Puryear and Aboussie*
Vacated and Dismissed for Want of Subject-Matter Jurisdiction
Filed:   March 20, 2003









*	Before Marilyn Aboussie, Chief Justice (retired), Third Court of Appeals, sitting by assignment. 
See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1. 	Under the Texas Commission on Human Rights Act (the Act) it is unlawful for an
employer to discharge an individual or otherwise discriminate against an individual because of age. 
See Tex. Lab. Code Ann. §§ 21.001, .002, .051 (West 1996 & Supp. 2003).  
2. 	On appeal, Hardin County Community Supervision and Corrections Department
(HCCSCD) only complains of the trial court's denial of its plea to the jurisdiction.
3. 	The provisions governing community supervision and corrections departments were
formerly contained in the code of criminal procedure.  See Act of April 25, 1995, 74th Leg., R.S.,
ch. 76, § 7.11, 1995 Tex. Gen. Laws 458, 580-84 (transferring the substance of article 42.131 code
of criminal procedure to government code); Act of April 25, 1995, 74th Leg., R.S., ch. 76, § 7.12,
1995 Tex. Gen Laws 458, 584 (repealing article 42.131, code of criminal procedure).  Because the
substance of the provisions implicated in this appeal has not changed, the Government Code is cited
for convenience.
4. 	Sullivan and Broughton also sued the Texas Department of Criminal Justice ("the
Department").  However, the Department moved for summary judgment on the basis that it was not
Sullivan and Broughton's employer.  The Department's motion for summary judgment was granted,
which this Court affirmed.  See Sullivan v. Texas Dep't of Crim. Justice, No. 03-99-00149CV, 2000
Tex. App. Lexis 736 (Tex. App.--Austin Feb. 3, 2000) (not designated for publication).
5. 	In the remaining suit against HCCSCD, all Sullivan and Broughton pleadings allege that
HCCSCD is their employer in fact.   
6. 	At oral argument HCCSCD conceded its third issue is not appropriate for consideration in
this interlocutory appeal. 
7. 	In their brief, Sullivan and Broughton argue that HCCSCD did not raise this ground in its
plea to the jurisdiction and therefore this Court cannot address it.  See Tex. R. App. P. 33.1.
However, the question of jurisdiction is fundamental and may be raised at any time.  Tullos v. Eaton
Corp., 695 S.W.2d 568, 568 (Tex. 1985).  In any event, after carefully reviewing HCCSCD's plea
to the jurisdiction, we find that HCCSCD asserted that the district judges are the employer.
