

 
 
 
 

NUMBER 13-06-470-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



		CITY OF McALLEN, TEXAS,						        	Appellant,

v.


MICHAEL ZELLERS, ET AL.,								Appellees.


On appeal from the 332nd District Court of Hidalgo County, Texas.

 


O P I N I O N


Before Justices Rodriguez, Garza, and Benavides 

Opinion by Justice Benavides


	In this case, forty-four McAllen police officers (the "Officers") filed suit against the
City of McAllen (the "City") claiming that the City failed to pay the Officers for "standby"
duty.  The City filed a plea to the jurisdiction asserting that the Officers failed to comply with
the City's grievance procedure, thereby depriving the district court of jurisdiction over their
claims.  The trial court denied the plea, and the City now appeals.  Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(a)(8) (Vernon Supp. 2006) (permitting interlocutory appeal by
governmental unit from denial of plea to the jurisdiction).  For the reasons that follow, we
conclude that the City's plea to the jurisdiction did not raise a jurisdictional issue; therefore,
we lack jurisdiction over this interlocutory appeal.  Accordingly, we dismiss the appeal for
lack of jurisdiction.
I. Background


From 1996 to 2002, several categories of McAllen police officers were placed on
"standby" duty during weekends and holidays.  "Standby" duty means that the officers must
be available to report for duty at a moment's notice--they are prohibited from leaving the
immediate area, from obtaining other employment, and from participating in activities that
would impair their ability to immediately report for duty.  
A dispute arose between the City and the Officers over standby duty pay.  The
Officers filed suit on May 21, 2001, alleging breach of express and implied contract and
quantum meruit.  The Officers also sought a writ of mandamus under the Texas Public
Information Act and a declaratory judgment.  After over five years of litigation and a week
before trial was scheduled, the City filed a plea to the jurisdiction. (1)  It alleged that the
Officers failed to file a grievance as required by the City's Police Department Handbook
(the "Handbook").  The City argued that the officers were required to file a grievance first
with their supervisor, then with the police chief or department head, and finally with the City
Manager.  The City argued that the officers' failure to comply with all three steps of the
grievance process deprived the trial court of subject-matter jurisdiction.
In response, the Officers argued that they complied with the grievance procedures. 
They asserted that Michael Zellers, a McAllen Police Officer, filed a grievance on behalf
of all the officers in compliance with the Handbook.  They asserted that the City waived any
further Handbook requirements by notifying Zellers that the complaint was "not grievable."
The trial court held a hearing and then denied the plea to the jurisdiction.  The City
filed this interlocutory appeal challenging that order.
II. Standard of Review

In general, an appeal will not lie from an interlocutory order.  Jack B. Anglin Co. v.
Tipps, 842 S.W.2d 266, 272 (Tex. 1992); Kaplan v. Tiffany Dev. Corp., 69 S.W.3d 212,
217 (Tex. App.Corpus Christi 2001, no pet.).  We may only review interlocutory orders if
authorized by statute.  Tipps, 842 S.W.2d at 272; Kaplan, 69 S.W.3d at 217.  Texas Civil
Practice and Remedies Code section 51.014 allows for interlocutory appeals in certain
instances.  Tex. Civ. Prac. & Rem. Code Ann. § 51.014.  We construe this statute strictly,
given that it is a narrow exception to the general rule that interlocutory orders are not
immediately appealable.  Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex.
2001).
We are authorized to consider an interlocutory appeal from the denial of a
governmental entity's plea to the jurisdiction.  Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(8).  However, "an interlocutory appeal cannot be taken from the denial of a plea
to the jurisdiction that does not raise an issue that can be jurisdictional."  Tex. Dep't of
Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004); see Univ. of Tex.
Southwestern Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 366 (Tex. 2004).  Because we
have a duty to establish our jurisdiction over this interlocutory appeal, we must first
determine whether the City raised a jurisdictional issue in its plea to the jurisdiction.  Tex.
Ass'n of Bus. v. Tex. Air Ctrl. Bd., 852 S.W.2d 440, 443-46 (Tex. 1993); Garcia v. Comm'rs
Court of Cameron County, 101 S.W.3d 778, 779 (Tex. App.Corpus Christi 2003, no pet.)
("We are obligated to determine, sua sponte, our own jurisdiction.").
III. General Principles of Subject Matter Jurisdiction

Texas district courts are courts of general jurisdiction.  Tex. Const. art. V, § 8.  The
jurisdiction of a district court "consists of exclusive, appellate, and original jurisdiction of all
actions, proceedings, and remedies, except in cases where exclusive, appellate, or original
jurisdiction may be conferred by this Constitution or other law on some other court, tribunal,
or administrative body."  Id.  For over one hundred years, all claims in law or in equity have
been presumed to fall within a district court's jurisdiction unless the Texas Legislature or
Congress has provided otherwise.  Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.
2000).
In other words, we will not assume that a tribunal other than the district court has
jurisdiction over a claim--rather, we must presume the opposite.  Id.  The party asserting
that the district court lacks subject-matter jurisdiction over a claim typically within that
court's jurisdiction should point us to some legislative act that removes jurisdiction from the
district court.  Id.
 IV. Analysis

The City argues that its Police Department Handbook imposes a grievance
procedure that police officers must follow prior to bringing suit in the district court.  It
asserts that the failure to comply with this grievance procedure deprives the district court
of subject matter jurisdiction over the Officers' common-law claims.  We disagree.
When pressed at oral argument, the City argued that it was not relying on any
statutory authority to remove jurisdiction from the district court.  Instead, it argued that the
"common law of administrative remedies" provided the basis for its plea to the jurisdiction.
We have been unable to locate any common law of administrative remedies.  Furthermore,
only the legislature has the power to confer jurisdiction on a tribunal other than the district
court.  Tex. Const. art. V, § 8; Dubai Petroleum, 12 S.W.3d at 75. Accordingly, we must
determine if there is any statutory authority for the City's contentions.  	
First, Texas Local Government Code chapter 143 provides a potential basis for the
City's plea.  Home-rule municipalities with populations over 10,000 and with a paid police
department are authorized by the legislature to adopt Texas Local Government Code
chapter 143.  Tex. Local Gov't Code Ann. § 143.002(a) (Vernon Supp. 2006).  If the
municipality adopts chapter 143, a civil service commission is created.  Id. §§ 143.006(a). To implement the chapter, the municipality's chief executive must appoint the three
members of the commission.  Id. § 143.006(a)-(b).  These three commissioners then are
authorized to resolve disputes between the municipality and its police officers according
to the procedures set forth in chapter 143.  Id. § 143.010.  After the commission makes its
decision, an appeal is authorized to the district court.  Id. § 143.015.  In a footnote in its reply brief, the City notes that its population is over 10,000 and
that therefore chapter 143 of the Texas Local Government Code applies to the City. 
However, the grievance procedures asserted as a jurisdictional bar in this case do not
include submission of the grievance to a civil service commission consisting of three
members appointed by the City's chief executive, as required by the local government
code.  Id. §§ 143.006(a)-(b), 143.010, 143.011.  In fact, the Handbook's grievance
procedure makes absolutely no mention of any commission.  Rather, the procedure
requires submission of the grievance to the officer's supervisor, then to the chief of police,
and finally to the city manager.  Accordingly, chapter 143 of the local government code
does not provide a basis for the City's plea to the jurisdiction.
Second, the City briefly pointed to Texas Local Government Code section 51.077
in its plea to the jurisdiction.  That provision states that a "municipality may adopt rules, as
it considers advisable, governing the municipality's liability for damages caused to a person
or property.  The municipality may provide for its exemption from liability."  Tex. Loc. Gov't
Code Ann. § 51.077 (Vernon 1999).  This statute has commonly been used by
municipalities to impose pre-suit notice requirements.  Cavazos v. City of Mission, 797
S.W.2d 268, 270 (Tex. App.-Corpus Christi 1990, no writ).   We have not located, nor has
the City cited, a single case where a municipality relied on this statute to create a tribunal
for resolving disputes with that municipality.  In any event, pay grievances do not involve
"liability for damages caused to a person or property" and could not be regulated by the
City through an ordinance adopted under this statute.  Mayes v. City of DeLeon, 922
S.W.2d 200, 203-04 (Tex. App.-Eastland 1996, writ denied) (providing that suit for back-pay was not governed by ordinance enacted under this statute because it did not involve
injury to person or property).  
Finally, providing restrictions on and exemptions from liability are hardly the same
as eliminating a district court's jurisdiction over traditional common-law claims by placing
that jurisdiction with another tribunal.  We believe that such decisions are more
appropriately left to the legislature.  Cf. City of Mexia v. Tooke, 197 S.W.3d 325, 343 (Tex.
2006) (decisions regarding sovereign immunity from suit are more appropriately left to the
legislature).  Accordingly, this statute does not provide a basis for the City's plea.
V.  Conclusion

We have neither located nor been directed to any applicable statute that allows a
municipality to create a grievance procedure for its police officers and require compliance
as a prerequisite to jurisdiction in the district court.  Thus, the City did not raise an "issue
that can be jurisdictional," and we lack jurisdiction over this interlocutory appeal. 
Loutzenhiser, 140 S.W.3d at 366; Simons, 140 S.W.3d at 349.  Accordingly, we dismiss
the appeal for lack of jurisdiction.  
							__________________________ 
							GINA M. BENAVIDES,
							Justice


Opinion delivered and filed this
the 1st day of March, 2007.
 


1. Although we recognize that subject-matter jurisdiction may be raised at any time, we do not condone
this sort of eleventh-hour procedure.  Trial courts are encouraged to determine their jurisdiction as early in the
proceeding as possible.  Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). 
Unfortunately, trial courts often require the assistance of the parties in this determination, particularly where
the issues relating to jurisdiction are not readily apparent.  Parties should timely raise issues of subject-matter
jurisdiction so that time and resources are not wasted. 
