                            NUMBER 13-14-00021-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

ARNOLD OCHOA,                                                              Appellant,

                                          v.

THE CITY OF PALMVIEW,                                                       Appellee.


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


                        MEMORANDUM OPINION
            Before Justices Rodriguez, Garza, and Benavides
                Memorandum Opinion by Justice Garza
      In this accelerated appeal, appellant Arnold Ochoa challenges the trial court’s

judgment granting a plea to the jurisdiction in favor of appellee, the City of Palmview,

Texas (“Palmview”), on the basis of governmental immunity. We affirm.

                                    I. BACKGROUND

      Ochoa served as a patrolman with the Palmview Police Department beginning in
1995. According to Ochoa, in 2011, he was offered the vacant position of police chief in

the nearby city of La Joya. Ochoa asserts that, in an attempt to retain him, the Palmview

city council created a new position of Assistant Chief of Public Safety and offered that

position to him. Ochoa accepted the Assistant Chief position and rejected the offer of

employment from La Joya.

       At the time, Ochoa also served on the school board for the La Joya Independent

School District (“LJISD”). He ran for re-election to the school board in 2012 and was

opposed by, among other candidates, the father of a Palmview city councilmember.

Ochoa alleges that various City officials then “began an organized, orchestrated effort to

unseat [him] and anyone perceived to be politically aligned with him.” He alleges that the

Palmview officials “issued an ultimatum: switch political parties, drop out of the race, or

suffer a demotion.” Ochoa did not drop out of the race, and in July of 2012, the city council

demoted him to his prior position of Commander. Ochoa asserts that, in August of 2012,

Hidalgo County Commissioner Joe Flores and Palmview City Manager Johnn Alaniz told

him that he would be reinstated to his prior position of Assistant Chief if he dropped out

of the school board election. Ochoa declined to do so. He later lost his bid for re-election

to the school board in November of 2012.

       Shortly after the election, Palmview Police Chief Christopher Barrera informed

Ochoa that a “preliminary investigation” revealed that Ochoa had “misused a [Texas

Alcoholic Beverage Commission (“TABC”)] license for personal gain.”            In particular,

Palmview officials asserted that Ochoa sold alcoholic drinks at a city festival in April of

2012 using a TABC license belonging to the local Crime Stoppers organization.

According to Ochoa, Barrera told him that this was a crime and that, if Ochoa did not



                                             2
resign, he would be arrested. Ochoa resigned on November 8, 2012.

        Ochoa then brought suit against Palmview seeking declaratory and equitable relief

as well as actual and exemplary damages.1 Ochoa alleged that his resignation was a

constructive termination and that: (1) the city council violated the Texas Open Meetings

Act (“TOMA”) by meeting and making decisions without notice to the public; (2) he was

wrongfully terminated for exercising his free speech rights; and (3) he was wrongfully

terminated for his refusal to perform an illegal act. The petition also brought claims of

breach of contract and promissory estoppel.2

        Palmview answered the suit by filing a “Plea to the Jurisdiction and Motion for

Summary Judgment.” In the motion, Palmview asserted: (1) Ochoa “has no evidence,

or insufficient evidence,” to establish a TOMA violation; (2) Ochoa “has not identified a

constitutional violation” with respect to his free speech rights; (3) Ochoa “has no evidence

to establish he was terminated for refusing to commit an illegal act”; (4) Ochoa “cannot

establish the existence of a contract or a breach thereof”; and (5) governmental immunity

bars Ochoa’s fraudulent inducement and promissory estoppel claims. The motion was

accompanied by excerpts of deposition testimony by Ochoa and Barrera as well as



        1  Ochoa also named Flores and Alaniz, among others, as defendants in his original petition.
Ochoa’s sixth amended petition named only Flores and Hidalgo County Judge Ramon Garcia as individual
defendants. His seventh amended petition, filed after the plea to the jurisdiction hearing, named only Flores
and Palmview as defendants. The individual defendants did not join in the plea to the jurisdiction and are
not parties to this appeal.

        Flores filed a motion with this Court seeking to lift the statutory stay on trial court proceedings which
was triggered by Ochoa’s appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b) (West, Westlaw
through 2013 3d C.S.) (providing that an interlocutory appeal of a plea to the jurisdiction ruling “stays all
other proceedings in the trial court pending resolution of that appeal”). We will deny the motion as moot.

        2 Ochoa also brought claims of intentional infliction of emotional distress, tortious interference with

a contract or prospective business relationships, fraudulent inducement, and conspiracy. Ochoa does not
contend on appeal that the trial court erred in dismissing these claims for lack of jurisdiction; accordingly,
we do not address them.

                                                       3
excerpts from Palmview’s city charter and personnel policy manual.                           Ochoa filed a

response to which he attached a full transcript of his deposition,3 and Palmview filed a

reply.

         The trial court granted the plea to the jurisdiction4 and this appeal followed.5 See

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (West, Westlaw through 2013 3d C.S.)

(permitting appeal of interlocutory order granting or denying a plea to the jurisdiction by a

governmental unit); TEX. R. APP. P. 28.1(a) (providing that appeals from interlocutory

orders, when allowed by statute, are accelerated).

                                              II. DISCUSSION

A.       Standard of Review

         A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without

regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34

S.W.3d 547, 554 (Tex. 2000).               The plea challenges the trial court’s subject matter


         3  Also attached to Ochoa’s response were three audio recordings containing statements allegedly
made by Ochoa, among other people. The recordings do not appear in the record before this Court.
Palmview filed an objection to the recordings on the basis that the statements made therein were not
authenticated or sworn to. Ochoa does not dispute that the statements made in the recordings were not
authenticated or sworn to, but instead argues that Palmview waived any objection to the recordings
because its objection was made three days after the plea to the jurisdiction hearing. However, the record
reflects that the objection was filed on the same day as the hearing, November 22, 2013. In any event,
“[t]he failure of an affidavit to be made on personal knowledge or specify how the affiant had personal
knowledge of the facts asserted is a defect in substance, not form, and need not be objected to at trial to
be a ground for reversal.” City of Wilmer v. Laidlaw Waste Sys. (Dallas), Inc., 890 S.W.2d 459, 467 (Tex.
App.—Dallas 1994), aff’d, 904 S.W.2d 656 (Tex. 1995). Because it is undisputed that the audio recordings
did not “specify how the affiant had personal knowledge of the facts asserted,” id., and because no objection
at trial was necessary to preserve this issue, see id., we conclude that the audio recordings were
inadmissible as evidence on the jurisdiction issue, and we do not consider them in our analysis.
         4 The trial court initially rendered an order granting both the plea to the jurisdiction and the motion
for summary judgment. Subsequently, the trial court rendered a corrected order granting only the plea to
the jurisdiction. Palmview’s summary judgment motion is therefore not before us.

         5 Palmview’s appellate brief lists eleven “Issues Presented for Review” which do not correspond to

the six issues enumerated in Ochoa’s brief. We note that, “[w]hen practicable, the appellee’s brief should
respond to the appellant’s issues or points in the order the appellant presented those issues or points.”
TEX. R. APP. P. 38.2(a)(2).

                                                       4
jurisdiction. Id.; see Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).

Whether a trial court has subject matter jurisdiction and whether the pleader has alleged

facts that affirmatively demonstrate the trial court’s subject matter jurisdiction are

questions of law that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation Comm’n v. IT–Davy, 74

S.W.3d 849, 855 (Tex. 2002).

       The plaintiff has the initial burden to plead facts affirmatively showing that the trial

court has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993); Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 220 (Tex. App.—Fort Worth

2003, pet. denied). We construe the pleadings liberally in favor of the pleader, look to the

pleader’s intent, and accept as true the factual allegations in the pleadings. See Miranda,

133 S.W.3d at 226, 228; City of Fort Worth v. Crockett, 142 S.W.3d 550, 552 (Tex. App.—

Fort Worth 2004, pet. denied).

       If a plea to the jurisdiction challenges the existence of jurisdictional facts, we

consider relevant evidence submitted by the parties when necessary to resolve the

jurisdictional issues raised, as the trial court is required to do, even when the evidence

implicates the merits of the cause of action. Miranda, 133 S.W.3d at 227; Blue, 34 S.W.3d

at 555; see City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). A review of a plea

to the jurisdiction challenging the existence of jurisdictional facts mirrors that of a

traditional motion for summary judgment.            Miranda, 133 S.W.3d at 228.           The

governmental unit is required to meet the summary judgment standard of proof for its

assertion that the trial court lacks jurisdiction. Id. Once the governmental unit meets its

burden, the plaintiff is then required to show that there is a disputed material fact regarding



                                              5
the jurisdictional issue. Id. If the evidence creates a fact question regarding jurisdiction,

the trial court must deny the plea to the jurisdiction and leave its resolution to the fact

finder. Id. at 227–28. But, if the evidence is undisputed or fails to raise a fact question

on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of

law. Id. at 228. In considering this evidence, we “take as true all evidence favorable to

the nonmovant” and “indulge every reasonable inference and resolve any doubts in the

nonmovant's favor.” Id.

       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 plaintiff should be afforded the opportunity to amend its pleadings. Miranda, 133

S.W.3d at 226–27. Further, a defendant cannot simply deny the existence of jurisdictional

facts and force the plaintiff to raise a fact issue. See Johnson v. Brewer & Pritchard, P.C.,

73 S.W.3d 193, 207 (Tex. 2002). In other words, a defendant may not advance a “no-

evidence” plea to the jurisdiction. See id.; cf. TEX. R. CIV. P. 166a(i) (allowing for no-

evidence motion for summary judgment).

B.     Applicable Law

       The doctrine of sovereign immunity provides that “no state can be sued in her own

courts without her consent, and then only in the manner indicated by that consent.” Tooke

v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006) (citing Hosner v. DeYoung, 1 Tex. 764,

769 (1847)). Governmental immunity operates like sovereign immunity to afford similar

protection to subdivisions of the State such as cities. Harris Cnty. v. Sykes, 136 S.W.3d

635, 638 (Tex. 2004).

       In Texas, governmental immunity has two components: (1) immunity from liability,



                                               6
which bars enforcement of a judgment against a governmental entity; and (2) immunity

from suit, which bars suit against the entity altogether. Tooke, 197 S.W.3d at 332.

Immunity from liability is an affirmative defense that must be pleaded or else is waived.

Kinnear v. Tex. Comm’n on Human Rights, 14 S.W.3d 299, 300 (Tex. 2000). Immunity

from suit, on the other hand, deprives a court of subject matter jurisdiction. Miranda, 133

S.W.3d at 224. Governmental immunity from suit may be waived only by “clear and

unambiguous” statutory language. Id. at 332–33; see TEX. GOV’T CODE ANN. § 311.034

(West, Westlaw through 2013 3d C.S.) (“In order to preserve the legislature’s interest in

managing state fiscal matters through the appropriations process, a statute shall not be

construed as a waiver of sovereign immunity unless the waiver is effected by clear and

unambiguous language.”).

C.     Analysis

       1.     Declaratory Judgment Action

       The Uniform Declaratory Judgments Act (“UDJA”) generally permits a person who

is interested in a deed, or whose rights, status, or other legal relations are affected by a

statute, to obtain a declaration of rights, status, or other legal relations thereunder. See

TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a) (West, Westlaw through 2013 3d C.S.).

Certain claims brought under the UDJA, such as those alleging that a state official acted

without legal or statutory authority, are not barred by immunity because they merely seek

to compel state officers to act within their official capacity and do not attempt to subject

the State to liability. See IT–Davy, 74 S.W.3d at 855. However, the UDJA is not a general

waiver of sovereign immunity and generally does not alter a trial court's jurisdiction. Tex.

Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). Rather, the



                                             7
UDJA is “merely a procedural device for deciding cases already within a court's

jurisdiction.” Id. (citing Tex. Ass’n of Bus., 852 S.W.2d at 444). Moreover, a litigant’s

couching its requested relief in terms of declaratory relief does not alter the underlying

nature of the suit; consequently, immunity will bar an otherwise proper UDJA claim that

has the effect of establishing a right to relief against the State for which the Legislature

has not waived sovereign immunity. Id. (citing City of Houston v. Williams, 216 S.W.3d

827, 828–29 (Tex. 2007) (per curiam)).

       Ochoa sought a declaratory judgment stating that his resignation was in fact a

constructive termination brought about by actions of the city council which were invalid

because they failed to comply with TOMA. See TEX. GOV’T CODE ANN. § 551.002 (West,

Westlaw through 2013 3d C.S.). He also sought a declaration that he was impermissibly

terminated for his refusal to perform an illegal act, see Sabine Pilot Serv., Inc. v. Hauck,

687 S.W.2d 733, 735 (Tex. 1985) (holding that “public policy . . . requires a very narrow

exception to the employment-at-will doctrine . . . cover[ing] only the discharge of an

employee for the sole reason that the employee refused to perform an illegal act”), and

that the city’s actions violated his right to freedom of speech. See TEX. CONST. art. I, § 8.

              a.     Open Meetings Act Violation

       By his first issue, Ochoa asserts that the trial court erred in granting Palmview’s

plea to the jurisdiction with respect to his TOMA claim. We disagree.

       Palmview asserted in its plea to the jurisdiction that Ochoa failed to allege facts

that would establish a violation of the statute. Under TOMA, “[e]very regular, special, or

called meeting of a governmental body shall be open to the public, except as provided by

this chapter.” TEX. GOV’T CODE ANN. § 551.002. The statute defines “governmental body”



                                             8
as including a “municipal governing body in the state” and “meeting” as:

      (A)       a deliberation between a quorum of a governmental body, or
                between a quorum of a governmental body and another person,
                during which public business or public policy over which the
                governmental body has supervision or control is discussed or
                considered or during which the governmental body takes formal
                action; or

      (B)       except as otherwise provided by this subdivision, a gathering:

                (i)     that is conducted by the governmental body or for which the
                        governmental body is responsible;

                (ii)    at which a quorum of members of the governmental body is
                        present;

                (iii)   that has been called by the governmental body; and

                (iv)    at which the members receive information from, give
                        information to, ask questions of, or receive questions from any
                        third person, including an employee of the governmental
                        body, about the public business or public policy over which
                        the governmental body has supervision or control.

      The term does not include the gathering of a quorum of a governmental
      body at a social function unrelated to the public business that is conducted
      by the body, or the attendance by a quorum of a governmental body at a
      regional, state, or national convention or workshop, ceremonial event, or
      press conference, if formal action is not taken and any discussion of public
      business is incidental to the social function, convention, workshop,
      ceremonial event, or press conference.

      The term includes a session of a governmental body.

Id. § 551.001(3)(C), (4) (West, Westlaw through 2013 3d C.S.).

      We have reviewed Ochoa’s pleadings and we can discern no factual allegations

that, even if taken as true, see Miranda, 133 S.W.3d at 226, 228, would support a TOMA

violation. Ochoa alleges that there was a meeting at which Hidalgo County Judge Ramon

Garcia declared his intent to sue LJISD,6 and that there was a separate meeting at which


      6   Specifically, Ochoa alleged:

                                               9
various Palmview city councilmembers and other elected officials informed Ochoa that he

would be reinstated to his old position if he withdrew from the LJISD board election.

Ochoa’s petition also alleged that “[i]t was made very clear that the City Commissioners

had made the decision [to threaten Ochoa] prior to any formal or open meeting.”

However, these allegations do not establish that any “meeting” took place, as defined by

the statute, at which a quorum of city councilmembers were present or during which public

policy was discussed or formal action taken. See TEX. GOV’T CODE ANN. § 551.001(4).

       Additionally, even if Ochoa alleged facts establishing that a meeting subject to

TOMA took place, the Texas Supreme Court has held that “the UDJA does not waive the

state’s sovereign immunity when the plaintiff seeks a declaration of his or her rights under

a statute or other law.” Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011);

see City of McKinney v. Hank’s Rest. Grp., L.P., 412 S.W.3d 102, 112 (Tex. App.—Dallas

2013, no pet.); Boll v. Cameron Appraisal Dist., No. 13-11-00750-CV, 2013 WL 4187756,

at *2 (Tex. App.—Corpus Christi Aug. 15, 2013, no pet.). In Sefzik, the Texas Supreme

Court noted that “the state may be a proper party to a declaratory judgment action that

challenges the validity of a statute.” 355 S.W.3d 618, 622 (Tex. 2011). The Legislature

“clear[ly] and unambiguous[ly]” waived immunity for such suits “because the UDJA

expressly requires joinder of the governmental unit” in those cases. Id. at 622 n.3 (citing

TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b) (“In any proceeding that involves the




       Ramon Garcia stated at one of the first meetings to solicit clients to sue the La Joya
       Independent School District made clear statements [sic] that he intended to use the lawsuit
       to get people out of the School District and put “their” . . . people into positions at the School
       District. Defendant Garcia went on to say that he thought the lawsuit was a good way to
       get . . . their . . . agenda furthered. Several people at this meeting were offended by the
       blatant malicious purpose behind the lawsuit.


                                                      10
validity of a municipal ordinance or franchise, the municipality must be made a

party . . . .”)). The plaintiff in Sefzik, however, did not challenge the validity of a statute;

rather, he challenged the state’s actions under it. See id. at 622. Therefore, there was

no express waiver of immunity with respect to his claim. See id. Similarly, Ochoa is not

challenging the validity of TOMA but is instead seeking a declaration of his rights under

that statute. Under Sefzik, Palmview is immune to that type of claim. See id. at 621.

       For the foregoing reasons, we conclude that Ochoa did not satisfy his initial burden

to plead facts affirmatively showing that the trial court has jurisdiction as to his TOMA

claim. See Tex. Ass’n of Bus., 852 S.W.2d at 446. We overrule Ochoa’s first issue.

              b.       Violation of Right to Freedom of Speech

       By his second issue, Ochoa asserts that the trial court erred in granting the plea to

the jurisdiction as to his claim for violation of his right to freedom of speech.

       Article I, section 8 of the Texas Constitution provides in part that “[e]very person

shall be at liberty to speak, write or publish his opinions on any subject, being responsible

for the abuse of that privilege . . . .” TEX. CONST. art. I, § 8. There is no implied private

right of action for damages arising under this provision. City of Beaumont v. Bouillion,

896 S.W.2d 143, 147 (Tex. 1995). However, equitable relief may be available. See id.

at 149 (“[S]uits for equitable remedies for violation of constitutional rights are not

prohibited.”). Ochoa’s claim for violation of his free speech rights was set forth in his live

petition as follows:

       Plaintiff’s conduct complained [of] by the City of Palmview and for which
       plaintiff’s employment and or position was terminated consisted of the
       Plaintiff refusing to . . . be bribed or black mailed to change his vote on
       political issues regarding the La Joya School Board. The individual
       Defendants acted intentionally and conspired with one another to cause the
       Plaintiff harm. Plaintiff’s exercise of free speech is a right protected by the

                                              11
       Texas Constitution, Article I, Section 8. Accordingly, plaintiff’s termination
       violated plaintiff’s free speech rights and was not conduct for which plaintiff’s
       employment can be legally terminated.

Ochoa argues on appeal that his petition requested only equitable relief, not damages,

with respect to this claim. See id. In addition to actual and exemplary damages, Ochoa’s

live petition requested “Specific Relief” including an “injunction [prohibiting] the Defendant

from engaging in unlawful employment practices as defined in the Texas Labor Code”

and “[reinstatement] to the position and pay grade which Plaintiff held but for the unlawful

employment actions of Defendant.” The petition did not state which specific causes of

action corresponded to these requests for relief.

       Even assuming that Ochoa sought only equitable relief with respect to this claim,

we agree with Palmview that Ochoa failed to allege facts that affirmatively demonstrate

the trial court’s jurisdiction as to this claim. Suits seeking to require state officials to

comply with statutory or constitutional provisions are not prohibited by sovereign

immunity. City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Under this ultra

vires exception to immunity, a suit must allege that the officer acted without legal authority

or failed to perform a purely ministerial act. Id. However, “the proper defendant in an

ultra vires action is the state official whose acts or omissions allegedly trampled on the

plaintiff's rights, not the state agency itself.” Sefzik, 355 S.W.3d at 620; see Heinrich, 284

S.W.3d at 373 (holding that suits alleging ultra vires actions by government officials

“cannot be brought against the state, which retains immunity, but must be brought against

the state actors in their official capacity” and noting that “[t]his is true even though the suit

is, for all practical purposes, against the state”). Further, the ultra vires exception to

immunity permits only prospective declaratory or injunctive relief restraining ultra vires



                                               12
conduct, as opposed to retroactive relief. See Heinrich, 284 S.W.3d at 374 (“[C]laims for

prospective injunctive relief are permissible, while claims for retroactive relief are not,”

because the latter type of relief is “‘in practical effect indistinguishable in many aspects

from an award of damages against the State.’” (quoting Edelman v. Jordan, 415 U.S. 651,

668 (1974)).

       The ultra vires claims at issue in this appeal were brought against a subdivision of

the state, not a state official in his or her official or individual capacity. See id. at 373;

Sefzik, 355 S.W.3d at 620 (holding that immunity was not waived in part because the

plaintiff “did not sue any state official”). Moreover, Ochoa’s request for reinstatement

constituted a demand for retroactive relief, which is generally unavailable in ultra vires

suits. See Heinrich, 284 S.W.3d at 374. Finally, though Ochoa requested an injunction

restraining Palmview “from engaging in unlawful employment practices as defined in the

Texas Labor Code,” he did not identify any provision of the Texas Labor Code that was

violated. For these reasons, we conclude that Ochoa failed to satisfy his initial burden to

plead facts affirmatively showing that the trial court has jurisdiction with respect to his free

speech claim. See Tex. Ass’n of Bus., 852 S.W.2d at 446. His second issue is overruled.

               c.     Termination for Refusal to Perform an Illegal Act

       By his third issue, Ochoa asserts that the trial court erred in granting the plea to

the jurisdiction as to his claim for wrongful termination for refusal to perform an illegal act.

       The general rule in Texas is that absent a specific agreement to the contrary,

employment may be terminated by either the employer or the employee at will, for good

cause, bad cause, or no cause at all. See, e.g., Safeshred, Inc. v. Martinez, 365 S.W.3d

655, 659 (Tex. 2012). In Sabine Pilot Service, Inc. v. Hauck, the Texas Supreme Court



                                              13
recognized a “narrow exception” to the employment-at-will doctrine covering “only the

discharge of an employee for the sole reason that the employee refused to perform an

illegal act.” 687 S.W.2d 733, 735 (Tex. 1985); see Safeshred, Inc., 365 S.W.3d at 659.

However, Sabine Pilot involved only non-governmental employees, and Texas courts

have declined to extend the Sabine Pilot exception to governmental employees. See

Midland Indep. Sch. Dist. v. Watley, 216 S.W.3d 374, 376 (Tex. App.—Eastland 2006, no

pet.); Salazar v. Lopez, 88 S.W.3d 351, 353 (Tex. App.—San Antonio 2002, no pet.);

Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex. App.—

Houston [1st Dist.] 1999, pet. dism’d w.o.j.); Carroll v. Black, 938 S.W.2d 134, 134–35

(Tex. App.—Waco 1996, writ denied)); see also Tex. State Office of Admin. Hearings v.

Birch, No. 04-12-00681-CV, 2013 WL 3874473, at *1 (Tex. App.—San Antonio July 24,

2013, pet. denied) (mem. op.); Nueces Cnty. v. Thornton, No. 13–03–011–CV, 2004 WL

396608, at *5 (Tex. App.—Corpus Christi Mar. 4, 2004, no pet.) (mem. op.). Instead,

courts have held that a governmental entity retains its sovereign immunity when an

employee raises a common law Sabine Pilot cause of action. See Salazar, 88 S.W.3d at

353.

       Ochoa has not directed us to any authority establishing that governmental

immunity is waived for a wrongful termination claim under Sabine Pilot. Therefore, we

conclude that Ochoa has failed to plead facts affirmatively showing the trial court’s

jurisdiction as to this claim. See Tex. Ass’n of Bus., 852 S.W.2d at 446. We overrule his

third issue.

       2.      Breach of Contract and Promissory Estoppel Claims

       By his fourth and fifth issues, Ochoa asserts that the trial court erred by granting



                                            14
the plea to the jurisdiction as to his breach of contract and promissory estoppel claims,

respectively. Ochoa’s live petition alleged that Palmview “has failed to perform his [sic]

contractual obligations, specifically, it breached it [sic] contract which it entered to employ

the Plaintiff as the Assistant Chief of the Department of Public Safety.” He requested

contractual damages, specific performance, as well as “the costs incurred by Plaintiff in

detrimental reliance on the promise of the Defendant.”

       Section 271.152 of the Texas Local Government Code provides a limited waiver

of immunity for contract claims. The statute provides:

       A local governmental entity that is authorized by statute or the constitution
       to enter into a contract and that enters into a contract subject to this
       subchapter waives sovereign immunity to suit for the purpose of
       adjudicating a claim for breach of the contract, subject to the terms and
       conditions of this subchapter.

TEX. LOC. GOV’T CODE ANN. § 271.152 (West, Westlaw through 2013 3d C.S.). A “contract

subject to this subchapter” is defined as “a written contract stating the essential terms of

the agreement for providing goods or services to the local governmental entity that is

properly executed on behalf of the local governmental entity.” Id. § 271.151(2) (West,

Westlaw through 2013 3d C.S.). A municipality such as Palmview is a “local government

entity” for purposes of the statute. See id. § 271.151(3)(A).

       Ochoa’s live petition makes no mention of a written contract. To the extent Ochoa

based his breach of contract claim on an oral contract, there is no waiver of immunity.

See id. § 271.151(2) (stating that a “contract subject to this subchapter” must be, among

other things, “written”). On appeal, Ochoa appears to argue that the Palmview ordinance

merging its police and fire departments into a unified Department of Public Safety

constitutes a “contract subject to this subchapter” under the statute. However, this



                                              15
allegation was not made in Ochoa’s pleadings before the trial court.

       Even assuming, but not deciding, that the Palmview ordinance constitutes a

“contract subject to this subchapter” under section 271.151 of the local government code,

we nevertheless conclude that Ochoa has failed to plead facts affirmatively showing the

trial court’s jurisdiction as to this claim. In particular, as noted, the general rule is that,

absent a specific agreement to the contrary, employment may be terminated by either the

employer or the employee at will, for good cause, bad cause, or no cause at all. See,

e.g., Matagorda Cnty. Hosp. Dist., 189 S.W.3d at 739. Ochoa does not contend that the

ordinance at issue constituted a “specific agreement” limiting Palmview’s right, as an at-

will employer, to terminate Ochoa with or without cause. Accordingly, even assuming

that the ordinance was a “a written contract stating the essential terms of the agreement

for providing goods or services to the local governmental entity that is properly executed

on behalf of the local governmental entity,” TEX. LOC. GOV’T CODE ANN. § 271.151(2),

Ochoa has not pleaded facts which, if proven, would establish that Palmview breached

that contract. His fourth issue is therefore overruled.

       We reach the same conclusion as to Ochoa’s promissory estoppel claim.

Promissory estoppel is a defensive theory that estops a promisor from denying the

enforceability of a promise. Corpus Christi Day Cruise, LLC v. Christus Spohn Health

Sys. Corp., 398 S.W.3d 303, 311 (Tex. App.—Corpus Christi 2012, pet. denied). It

requires evidence of (1) a promise, (2) foreseeability of reliance thereon by the promisor,

and (3) substantial reliance by the promisee to his detriment. Id. (citing Henry Schein,

Inc. v. Stromboe, 102 S.W.3d 675, 686 n. 25 (Tex. 2002)). To support a finding of

promissory estoppel, the purported promise must be sufficiently specific and definite such



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that it would be reasonable for the promisee to rely upon it as a commitment to future

action. Id. (citing Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141–42 (Tex. App.—Houston

[14th Dist.] 1999, pet. denied)). The purported promise also must be more than mere

speculation concerning future events, a statement of hope, or an expression of opinion,

expectation, or assumption. Id. (citing Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 305

(Tex. App.—Dallas 2009, no pet.)).7

        Ochoa’s promissory estoppel claim appears to be based on his allegation that

Palmview, by creating the new position of Assistant Chief of Public Safety, induced him

to accept that position and reject an offer of employment from the city of La Joya.

However, his petition does not identify what promise, if any, Palmview failed to comply

with. The petition does not allege that Palmview committed to employ Ochoa as Assistant

Chief for a particular period of time; nor, as we have noted, did the petition allege that any

contract existed restricting Palmview’s right as an at-will employer to terminate Ochoa’s

employment for any cause or no cause. The facts alleged, even if taken as true, do not

support a finding that Palmview made a “sufficiently specific and definite” promise such

that it would be reasonable for Ochoa to have relied upon it. See id. Accordingly, Ochoa

has not alleged facts affirmatively supporting jurisdiction as to this claim. We overrule

Ochoa’s fifth issue.



        7 The general rule is that, when a municipality is exercising its governmental powers, it is not subject
to estoppel. City of Hutchins v. Prasifka, 450 S.W.2d 829, 835 (Tex. 1970); Donna Indep. Sch. Dist. v.
Gracia, 286 S.W.3d 392, 395–96 (Tex. App.—Corpus Christi 2008, no pet.). However, a municipality may
be estopped in certain cases where justice requires the application of estoppel and there is no interference
with the exercise of the municipality's governmental functions. City of Hutchins, 450 S.W.2d at 836. This
very narrow exception is to be applied with caution and only in exceptional cases where the circumstances
clearly demand its application to prevent manifest injustice. City of White Settlement v. Super Wash, Inc.,
198 S.W.3d 770, 774 (Tex. 2006). Because of our conclusion herein that Ochoa failed to allege facts
supporting jurisdiction, we need not determine whether this very narrow exception applies. See TEX. R.
APP. P. 47.1.

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       3.     Opportunity to Replead

       By his sixth issue, Ochoa contends that, in the event we find that his pleadings

were insufficient to establish jurisdiction, we “must allow [him] the opportunity to amend

his pleadings if he can cure any defect.” See Miranda, 133 S.W.3d at 226–27 (“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.”). We will address Ochoa’s causes of action individually, beginning with his

constitutional ultra vires claim.

       In Sefzik, the supreme court allowed the plaintiff to replead because, although he

failed to sue any state officials in his ultra vires suit, the claims were brought prior to the

Heinrich decision, when the law was “‘less than clear’ as to who the proper party was in

a suit for declaratory remedy, as well as [to] the parameters of the ultra vires exception to

the doctrine of sovereign immunity.” Sefzik, 355 S.W.3d at 623; see Rourk v. Cameron

Appraisal Dist., No. 13-11-00751-CV, 2013 WL 4188239, at *2 (Tex. App.—Corpus

Christi Aug. 15, 2013, no pet.) (mem. op.) (same). Here, Ochoa initially filed suit on

September 5, 2012, more than three years after Heinrich was decided. In any event,

Palmview is the only appellee in this appeal, and this defect is incurable as to Palmview

because it is a subdivision of the state, not a state actor. See Heinrich, 284 S.W.3d at

373 (holding that suits alleging ultra vires actions by government officials “cannot be

brought against the state, which retains immunity, but must be brought against the state

actors in their official capacity”).      Therefore, Ochoa’s pleadings concerning his

constitutional ultra vires claim are incurably defective.



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       Similarly, the defect in Ochoa’s wrongful termination pleadings are incurable as to

Palmview because, as set forth above, the Sabine Pilot exception to the at-will

employment doctrine has not been recognized in the case of government employees.

See Watley, 216 S.W.3d at 376; Salazar, 88 S.W.3d at 353; Hohman, 6 S.W.3d at 777;

Carroll, 938 S.W.2d at 134–35.

       Next, with respect to the TOMA claim, Ochoa stated in his deposition that the

meeting at which Palmview allegedly took the decision to threaten him was attended by

City Manager Alaniz and three city councilmembers. However, the Home Rule Charter

for the City of Palmview, which was attached as an exhibit to Palmview’s plea to the

jurisdiction, states that “[a] quorum shall consist of four (4) members: Mayor and three

(3) Councilmembers, or four (4) Council members.”            See TEX. GOV’T CODE ANN.

§ 551.001(6) (defining “quorum” as “a majority of a governmental body, unless defined

differently by applicable law or rule or the charter of the governmental body”). The defects

in Ochoa’s TOMA pleadings are incurable because, even if the version of events he

testified to at his deposition is taken as true, no “meeting” as defined by TOMA ever took

place. See id. § 551.001(4)(A), (4)(B)(ii) (defining “meeting” to require the presence of a

quorum of the governmental body).

       Finally, with respect to Ochoa’s breach of contract and promissory estoppel claims,

we also find that the pleadings are incurably defective. The basis of the breach of contract

claim is that the city ordinance establishing Palmview’s Department of Public Safety

constituted a written contract, but as noted, there is no indication that the ordinance was

a “specific agreement” to abridge Palmview’s right, as an at-will employer, to terminate

Ochoa without cause. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840



                                            19
(Tex. 2007) (“Remanding this case would serve no legitimate purpose because

Koseoglu’s underlying claim is a breach of contract claim. Merely pleading more facts in

support of the breach of contract claim will not overcome Texas A & M’s immunity from

suit.”). As to the promissory estoppel claim, there is no indication in either the pleadings

or the evidence that Palmview failed to comply with any promise to employ Ochoa for a

particular amount of time or that Palmview’s rights as an at-will employer were restricted

in any way. We therefore find that remand for repleading on this claim would serve no

legitimate purpose. See id.

       We overrule Ochoa’s sixth issue.

                                     III. CONCLUSION

       The trial court’s judgment is affirmed. All pending motions filed in this cause are

hereby denied as moot.


                                                 DORI CONTRERAS GARZA,
                                                 Justice

Delivered and filed the
19th day of June, 2014.




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