                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-14-00084-CV


WILLIAM D. LAYTON                                  APPELLANT

                                    V.

CITY OF FORT WORTH, CITY OF                        APPELLEES
FORT WORTH EMPLOYEES’
RETIREMENT FUND, AND BOARD
OF CITY OF FORT WORTH
EMPLOYEES’ RETIREMENT FUND


                                 ----------

        FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
                  TRIAL COURT NO. 141-265436-13

                                 ----------

                      MEMORANDUM OPINION1

                                 ----------




    1
     See Tex. R. App. P. 47.4.
                                 I. INTRODUCTION

      Appellant William D. Layton filed suit in district court against Appellees City

of Fort Worth (the City), City of Fort Worth Employees’ Retirement Fund (the

Fund), and Board of City of Fort Worth Employees’ Retirement Fund (the Board)

after the Board terminated Layton’s disability benefits under the Fund.         The

Board and the Fund filed a plea to the jurisdiction, seeking to dismiss Layton’s

claims for lack of subject-matter jurisdiction. The trial court granted the plea, and

Layton now appeals, raising five issues. We will affirm.

                                 II. BACKGROUND

      The Fund is a non-statewide retirement system that was established by the

City’s Charter and Code of Ordinances. See Admin. Rules & Procedures, Fort

Worth Employees’ Ret. Fund, R. 1.101 (eff. Jan. 25, 2012); see also Fort Worth

City Charter ch. XXVII, § 36; Fort Worth, Tex. Rev. Ordinances ch. 2.5, art. I

(2014); Tex. Rev. Civ. Stat. Ann. art. 6243i (West 2010). It “was placed under

the exclusive administration and management of a Board of Trustees by Article

6243i of the Texas Revised Civil Statutes for the purpose of providing retirement

benefits” to members of the Fund.       Admin. Rules & Procedures, Fort Worth

Employees’ Retirement Fund, R. 1.101. In addition to a retirement pension, both

the City’s Code of Ordinances and the Fund’s Administrative Rules and

Procedures contain provisions for a disability pension. See Fort Worth, Tex.




                                         2
Rev. Ordinances ch. 2.5, art. I, Div. 1, § 2.5-7 (2014); Admin. Rules &

Procedures, Fort Worth Employees’ Ret. Fund, R. 9.

      Layton worked for the City’s Street Department as an equipment operator.

In June 2007, he injured his spine while on duty. Layton later applied for—and in

January 2010 began receiving—disability benefits as provided by the Fund.

      On July 10, 2012, the Board’s Disability Committee reviewed Layton’s

disability case.   Layton was unable to attend, but the Committee voted to

recommend to the Board that his disability benefits be suspended.

      Several days later, on July 12, 2012, the Board conducted a hearing at

which Layton testified and presented evidence regarding his disability. According

to Layton, at this hearing, the Board “confronted [him] with a video of him he had

not previously seen, and questioned him about activities portrayed in the video,

without first revealing it to him, and allowing him to review it, in a manner

calculated to embarrass and harass [him].”2         The Board voted to delay

suspending Layton’s disability benefits and to have him examined by the Board’s

doctor.




      2
       According to the Board and the Fund, the video apparently depicted
Layton “exercising” and “moving around”—“doing things that were inconsistent
with the claim of disability.”


                                        3
      On September 19, 2012, Layton appeared before the Disability Committee

and testified and presented evidence regarding his disability.3 The Committee

voted to recommend to the Board that Layton’s disability benefits be suspended.

      Soon thereafter, on September 26, 2012, Layton and his wife testified at a

hearing before the Board. After considering the evidence, the testimony, and the

opinion of the Board’s medical advisor, the Board terminated Layton’s disability

benefits, effective October 1, 2012.

      Layton filed his original petition against Appellees in April 2013, alleging

claims for “Violation of Fund,” “Violation of Duty under Municipal Law,” “Violation

of Fiduciary Duty or Duty of Good Faith and Fair Dealing or Other Special

Duties,” “Breach of Contract,” “Unjust Enrichment or Money Held and Received,”

“Negligence,” and “Violation of Due Process.” Layton sought “actual damages”

for each claim except the “Violation of Fund” claim, and in his amended petition,

he also pleaded for “reinstatement of benefits of $2,244.20 per month he was

receiving prior to October 1, 2012” and, alternatively, “payment of the present

value of future benefits at a 5% interest rate through age 80, . . . equal to

$553,767.83,” but “only if the doctrine of governmental immunity is not otherwise

applicable.”




      3
      Layton averred that the Committee “did not legitimately hold a hearing on
September 19, 2012, because it was without a quorum and the time for hearing
was unfairly limited.”


                                        4
       The Board and the Fund filed a plea to the jurisdiction, arguing that the

termination order was not reviewable and that governmental immunity barred

each of Layton’s claims. The trial court granted the plea without stating a reason

for its ruling.

                              III. STANDARD OF REVIEW

       A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat

a cause of action without regard to whether the claims asserted have merit.

Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). If a court lacks subject-

matter jurisdiction in a particular case, then it lacks authority to decide that case.

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993)

(reasoning that subject-matter jurisdiction is essential to the authority of a court to

decide a case). The plaintiff has the burden to plead facts affirmatively showing

that the trial court has jurisdiction.   Id. at 446.    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. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). Whether the

trial court has subject-matter jurisdiction is a question 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). Governmental immunity from suit deprives a trial court of subject-




                                           5
matter jurisdiction and is properly asserted in a plea to the jurisdiction. Miranda,

133 S.W.3d at 225‒26.

                         IV. AVAILABILITY OF JUDICIAL REVIEW

      Layton argues in his first and second issues that the trial court erred by

granting the Fund’s and the Board’s plea to the jurisdiction because his claims

fall within an exception to the doctrine of governmental immunity—both the Fund

and the Board are municipal entities, and their provision of disability benefits is a

proprietary function.      In his third issue, Layton argues that even if the

municipality/proprietary function exception to governmental immunity does not

apply, the trial court still erred by dismissing his contract, unjust enrichment, and

money had and received claims because he also sought the equitable remedy of

reinstatement in connection with those claims, and claims seeking equitable relief

are not barred by governmental immunity.

      The Fund and the Board have two responses to Layton’s first through third

issues: (1) they   are     not   municipalities   but   instead   are   State-created

governmental entities that are entitled to governmental immunity in the absence

of a clear and unambiguous waiver of immunity, and Layton failed to establish

such a waiver for each of his claims, and, alternatively, (2) regarding Layton’s

claims that do not allege a constitutional violation, no statute provides a right to

judicial review of the Board’s order terminating disability benefits under the Fund.

Anticipating the latter argument, Layton contends in his fifth issue that the trial



                                           6
court could not have relied on the “doctrine of finality” to grant the plea to the

jurisdiction. We address the Fund’s and the Board’s dispositive judicial-review

argument.

      Texas law recognizes no right to judicial review of an administrative order

unless (1) a statute expressly provides the right, (2) the order adversely affects a

vested property right, or (3) the order otherwise violated some constitutional right.

Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 599 (Tex.

2001); Cont’l Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393,

397 (Tex. 2000). Here, no statute provides a right to judicial review of a Board

order terminating disability benefits under the Fund, including article 6243i.

Thus, constitutional claims aside, Layton has no right to judicial review of the

Board’s order. See, e.g., Tex. Comm’n on Envtl. Quality v. Bonser-Lain, 438

S.W.3d 887, 893‒94 (Tex. App.—Austin 2014, no pet.) (concluding that the

Administrative Procedures Act did not provide a right to judicial review of an

agency’s refusal to adopt rules because it was silent as to the matter); City of

Houston v. Vitek, 849 S.W.2d 882, 884 (Tex. App.—Houston [14th Dist.] 1993,

writ denied) (“There is no statute vesting jurisdiction in the district court to review

the administrative decisions of the Civil Service Commission.”).

      Layton argues that there is such a right to review because section 2.01(c)

of article 6243i “permits finality at the level of a board of trustees of only

decisions concerning eligibility,” which he says are not involved here, and



                                          7
matters not given exclusively to the Board, such as whether to terminate

disability benefits, which is involved here, fall within the jurisdiction and power of

the trial court.4 To the extent that Layton urges us to conflate legislative silence

regarding judicial review with express legislative authority permitting judicial

review, we decline to do so. See Little-Tex Insulation Co., 39 S.W.3d at 599. To

the extent that Layton’s argument implicates the doctrine of exclusive jurisdiction,

in Houston Municipal Employees Pension System v. Ferrell, the supreme court

considered the relevance of an exclusive-jurisdiction argument when, as here, no

statute afforded a right to judicial review:

      When the Legislature grants an administrative agency sole authority
      to make an initial determination in a matter, the agency has
      exclusive jurisdiction over the matter. The doctrine of exclusive
      jurisdiction concerns a trial court’s original jurisdiction and is relevant
      when the plaintiff has not exhausted his administrative remedies.
      Only after exhaustion has occurred may a plaintiff seek judicial
      review of the administrative decision, and then he may do so “only at
      the time and in the manner designated by statute.”

             In this case, the 29 plaintiffs claim to have exhausted all of
      their administrative remedies. HMEPS contested the 29 plaintiffs’
      claim of exhaustion in the trial court but does not oppose their claim
      of exhaustion on appeal to this Court. The record is unclear as to
      whether exhaustion in fact occurred. But it is important to note that
      whether the 29 plaintiffs exhausted their administrative remedies is
      of no consequence in this case if, as HMEPS argues, Article 6243h
      expressly denies pension members a right to judicial review of the
      pension board’s determinations, or is silent as to that question.
      There is no right to judicial review of an administrative order unless a
      4
       Section 2.01(c) states that “[a] person may appeal the determination
regarding the person’s eligibility to be a participating member to the board of
trustees. The board’s decision regarding eligibility is final.” Tex. Rev. Civ.
Statutes Ann. art. 6243i, § 2.01(c).


                                           8
      statute explicitly provides that right or the order violates a
      constitutional right. . . .

             Article 6243h provides that “[t]he determination of any fact by
      the pension board and the pension board’s interpretation of this Act
      are final and binding on any interested party.” The words “final and
      binding,” when used to describe an administrative decision, preclude
      judicial review. . . .

            . . . Because the Legislature has not authorized the trial court
      to grant the relief sought, the trial court lacks jurisdiction over the
      case.

248 S.W.3d 151, 157‒59 (Tex. 2007) (emphasis added) (citations and footnotes

omitted).   Layton’s exclusive-jurisdiction argument is therefore unpersuasive

because, ultimately, no statute provides a right to judicial review of the Board’s

order terminating disability benefits under the Fund.5 See id.

      We hold that the trial court did not err by granting the Fund’s and the

Board’s plea to the jurisdiction as to Layton’s claims that do not allege a

constitutional violation, including the claims for which he alternatively sought

equitable relief—those for “Violation of Fund,” “Violation of Duty under Municipal

Law,” “Violation of Fiduciary Duty or Duty of Good Faith and Fair Dealing or

Other Special Duties,” “Breach of Contract,” “Unjust Enrichment or Money Held
      5
       The absence of a statutory right to judicial review here is consistent with
both the City’s Ordinances and the Fund’s Administrative Rules and Procedures.
See Fort Worth, Tex. Rev. Ordinances ch. 2.5, art. I, Div. 1, § 2.5-7(c)(7) (“The
Board’s determination on all matters concerning the granting, refusing or
revoking of a disability pension shall be final and conclusive on all parties, and no
appeal can be made therefrom.”); Admin. Rules & Procedures, Fort Worth
Employees’ Ret. Fund, R. 9.104(G) (“The Board’s determination on all matters
concerning the granting, refusing or revoking of a disability pension shall be final
and conclusive on all parties, and no appeal can be made there from.”).


                                         9
and Received,” and “Negligence.”         Accordingly, we overrule Layton’s first,

second, third, and fifth issues.

                            V. CONSTITUTIONAL CLAIMS

      Layton’s fourth issue implicates the other two exceptions to the general

rule that there is no right to judicial review of an administrative order. He argues

that the trial court erred by granting the Fund’s and the Board’s plea to the

jurisdiction as to his claims that the Board, by terminating his disability benefits,

(1) unconstitutionally divested him of a vested property right and (2) violated his

right to due course of law under the Texas constitution.6 See Little-Tex Insulation

Co., 39 S.W.3d at 599.

      A.     Vested Property Right

      Layton argues that he has a vested property right, subject to due process

protections, in the disability benefits that he was receiving under the Fund. See

Brazosport Sav. & Loan Ass’n v. Am. Sav. & Loan Ass’n, 161 Tex. 543, 548‒49,

342 S.W.2d 747, 750 (1961) (“When a vested property right has been adversely

affected by the action of an administrative body so as to invoke the protection of

due process, an inherent right of appeal is recognized.”).

      A person’s property interests include actual ownership of real estate,

chattels, and money. Consumer Serv. Alliance of Tex., Inc. v. City of Dallas, 433

S.W.3d 796, 805 (Tex. App.—Dallas 2014, no pet.). A right is “vested” when it
      6
       The Fund and the Board challenged Layton’s constitutional claims below.
Layton’s quasi-preservation arguments are without merit.


                                         10
has some definitive, rather than merely potential, existence. Id. “Texas courts

have held that vested rights are those that imply an immediate right or an

entitlement—those that are not based upon mere expectation or contingency.”

Satterfield v. Crown Cork & Seal Co., 268 S.W.3d 190, 226 (Tex. App.—Austin

2008, no pet.); Walls v. First State Bank of Miami, 900 S.W.2d 117, 121‒22 (Tex.

App.—Dallas 1995, writ denied) (“To be vested, a right must be more than a

mere expectancy based on an anticipated continuance of an existing law . . . ; it

must have become a title, legal or equitable, to the present or future enforcement

of a demand, or a legal exemption from the demand of another.”).

      The City’s Ordinances and the Fund’s Administrative Rules and

Procedures contain numerous mandatory conditions and requirements that must

be met to initially receive, and then to continue to receive, disability benefits

under the Fund, including, but not limited to, the following:

•a Member must meet the definition of “disabled”;

•the disability must exist for ninety consecutive days prior to application for a
disability pension;

•no disability pension shall exceed the Member’s rate of earnings;

•continuation of a disability pension is subject to review and determination of the
Member’s eligibility for a disability pension;

•to qualify for a disability pension, a physician must determine that the Member is
not capable of performing the essential functions of certain positions;

•the Member must submit to an annual medical examination;




                                         11
•if at any time the Board has a reasonable doubt whether the Member is
disabled, it may suspend the disability pension until the doubt is removed;

•no disability pension shall be payable during any period for which wages are
received from the City, the State of Texas, or any other branch of the government
while performing the duties of a firefighter or a peace officer;

•to continue receiving a disability pension, the Member must have complied with
the medical recommendations of the Member’s treating physician; and

•the Board shall withhold a disabled Member’s disability pension upon the
Member’s failure to timely submit required income tax returns.

Fort Worth, Tex. Rev. Ordinances ch. 2.5, art. I, Div. I, § 2.5-7(a), (b)(1), (b)(3),

(b)(5), (c)(1), (c)(2), (c)(3), (c)(5), (c)(9), (f)(3); Admin. Rules & Procedures, Fort

Worth Employees’ Retirement Fund, R. 9.101, 9.103, 9.104, 9.108.                These

numerous conditions and requirements all but guarantee that a qualifying

member has but a mere expectancy in receiving disability benefits under the

Fund. Indeed, nowhere is this more apparent than by considering Ordinance

section 2.5-7(e), which states, “If the Board determines that a disabled Member

receiving a disability pension hereunder is no longer disabled as above defined,

the Member’s disability pension shall immediately cease.” Fort Worth, Tex. Rev.

Ordinances ch. 2.5, art. I, Div. I, § 2.5-7(e); see also Admin. Rules & Procedures,

Fort Worth Employees’ Retirement Fund, R. 9.107 (stating the same).               The

notion that disability benefits under the Fund can constitute a vested right is

completely incompatible with the Board’s ability to immediately cease a disability

pension upon a determination that a member is no longer disabled.




                                          12
      We hold that the trial court did not err by granting the plea to the

jurisdiction as to Layton’s deprivation claim because he has no vested right to the

disability benefits under the Fund. See Wilson v. Tex. Workers’ Comp. Comm’n,

No. 12-01-00337-CV, 2003 WL 22681793, at *6 (Tex. App.—Tyler Nov. 13,

2003, no pet.) (mem. op.) (holding that appellant did not have a vested property

right in additional workers’ compensation benefits because “he would be entitled

to additional benefits only in the event his impairment rating is ultimately

determined to be higher than five percent”). We overrule this part of Layton’s

fourth issue.

      B.        Due Course of Law

      Layton alleged a claim for violation of his due course of law rights under

the Texas constitution.    See Tex. Const., art. I, § 19.     He states that “the

disposition of [his] claim for disability pension benefits involved highly unfair

conduct on the part of Appellees inconsistent with [his] right to not only a

meaningful opportunity to be heard, but to an unbiased decisionmaker and to a

decision not arbitrary and unreasonable.” Layton acknowledges that his claim is

barred to the extent that he seeks to recover damages for the purported

constitutional violation, see Smith v. City of League City, 338 S.W.3d 114, 127

(Tex. App.—Houston [14th Dist.] 2011, no pet.), but he directs us to our opinion

in City of Fort Worth v. Jacobs, 382 S.W.3d 597 (Tex. App.—Fort Worth 2012,

pet. dism’d), and contends that he additionally sought the equitable remedy of



                                        13
“reinstatement” and that “an exception to governmental immunity exists for

equitable relief of reinstatement sought in connection with a claim of a violation of

the Texas Constitution.”     According to his amended petition, Layton sought

“reinstatement of [disability] benefits of $2,244.20 per month he was receiving

prior to October 1, 2012.”

        The Fund and the Board respond that Jacobs is inapposite because

although it did hold that governmental immunity does not bar a claim that seeks

the equitable relief of reinstatement for an alleged constitutional violation, the

appellant in that case had sought reinstatement to her position of employment,

not reinstatement of the ongoing payment of monetary benefits, as Layton does

here.    The Fund and the Board argue that this case is more like City of

Seagoville v. Lytle, 227 S.W.3d 401, 410 (Tex. App.—Dallas 2007, no pet.), in

which the appellate court held that the portion of the appellant’s declaratory

judgment claim seeking back pay and benefits was a claim for money damages

and, therefore, barred by governmental immunity.

        We find neither Jacobs nor Lytle persuasive because Layton is seeking

neither reinstatement to a position of employment nor back pay and benefits; he

seeks prospective relief in the form of reinstatement and payment of his disability

benefits under the Fund.      We instead find caselaw addressing declaratory

judgment claims complaining of ultra vires acts by state officials more pertinent




                                         14
because they touch upon a consideration that is particularly relevant here:

control.

      Suits 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). Such a suit seeks relief against a state official

who allegedly acted outside of or without legal authority.          McLane Co. v.

Strayhorn, 148 S.W.3d 644, 649 (Tex. App.—Austin 2004, pet. denied). On the

other hand, a suit that complains about an official’s exercise of discretion within

her legal authority is barred by immunity. Id. The difference between the two

claims revolves around the concept of control; a claim complaining that a state

official acted without legal authority does not attempt to exert any control over the

state (it merely attempts to reassert the control of the state), but a claim

complaining of an official’s exercise of discretion within her legal authority does

attempt to exert control over the state.      See Heinrich, 284 S.W.3d at 372.

Therefore, claims that seek to control the State or its officials in the exercise of

discretionary statutory or constitutional authority are barred by sovereign

immunity. See Creedmore-Maha Water Supply Corp. v. Tex. Comm’n on Envtl.

Quality, 307 S.W.3d 505, 515 (Tex. App.—Austin 2010, no pet.) (“And the fact

that Creedmore does not seek monetary relief . . . is not dispositive because its

claims would equally implicate sovereign immunity if the effect of the remedy

sought was to control state action.”).



                                         15
      Layton seeks reinstatement of his disability benefits for alleged violations

of his due course of law rights.    This remedy unquestionably implicates the

concept of control because, as explained above, the Board evaluates numerous

conditions and requirements that must be met before it renders a decision that a

member may or may not receive disability benefits. In performing that function,

the Board exercises what would otherwise be a discretionary act. See McLane,

148 S.W.3d at 649 (stating that a discretionary act is one that requires the

exercise of personal deliberation, decision, and judgment). If Layton were to

prevail on his due course of law claim and obtain the relief that he seeks, the

Board would not engage in any of the deliberation, decision-making, and

judgment that it normally exercises in determining whether a member has met

each condition and requirement for receiving disability benefits; instead, Layton

would simply receive the benefits, even if he failed to meet one or more of the

Fund’s numerous prerequisites.      By circumventing the Board’s authority to

administer the Fund pursuant to the City’s Ordinances and the Fund’s

Administrative Rules and Procedures, Layton’s remedy seeking reinstatement of

disability benefits would improperly exert absolute control over the Board’s

decision-making process regarding his entitlement to disability benefits. Layton’s

due course of law claim therefore implicates the Fund’s and the Board’s immunity

from suit. See Heinrich, 284 S.W.3d at 370‒72; Creedmore-Maha Water Supply

Corp., 307 S.W.3d at 515. Under these limited facts, we hold that the trial court



                                       16
did not err by granting the Fund’s and the Board’s plea to the jurisdiction as to

Layton’s due course of law claim, and we overrule the remainder of his fourth

issue.

                                  VI. CONCLUSION

         Having overruled all of Layton’s issues, we affirm the trial court’s order

granting the Fund’s and the Board’s plea to the jurisdiction.7



                                                    /s/ Bill Meier

                                                    BILL MEIER
                                                    JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DELIVERED: December 11, 2014




         7
       We decline Layton’s invitation to modify the trial court’s order granting the
plea to the jurisdiction to expressly state that the claims are dismissed without
prejudice because, as written, the order does not state that the claims are
dismissed with prejudice. Cf. Garrett v. Williams, 250 S.W.3d 154, 156 (Tex.
App.—Fort Worth 2008, no pet.) (addressing issue that trial court erred by
dismissing petition with prejudice).


                                         17
