                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-12-00102-CV

THE CITY OF CALDWELL, TEXAS,
                                                             Appellant
v.

PAUL LILLY,
                                                             Appellee



                            From the 335th District Court
                               Burleson County, Texas
                                Trial Court No. 26,407


                           MEMORANDUM OPINION


       Appellant, the City of Caldwell (the “City”), complains about the trial court’s

denial of its plea to the jurisdiction in favor of appellee, Paul Lilly. In two issues, the

City contends that the trial court erred in denying the plea to the jurisdiction because

Chapter 101 of the Texas Labor Code does not waive governmental immunity and does

not apply to public employees, and because Lilly’s claims are barred by res judicata,

collateral estoppel, and the statute of limitations. We reverse and render judgment

dismissing Lilly’s claims for lack of jurisdiction.
                                           I.      BACKGROUND

        This is a wrongful-termination lawsuit brought by Lilly, who served as the City’s

Chief of Police from March 2007 to February 17, 2009.                      In his live pleading, Lilly

asserted that he was terminated because of his membership in a police officers’ union—

the Combined Law Enforcement Association of Texas (“CLEAT”).1 Lilly noted that

Billy Clemons, a City Administrator, issued an “Employee Statement of Discipline” to

him on January 5, 2009. Pursuant to the City’s grievance procedures, Lilly appealed the

statement of discipline to the City Council. A meeting was held on February 2, 2009 to

hear Lilly’s appeal, and at the hearing, Lilly was represented by a CLEAT staff attorney.

        At the conclusion of the hearing, members of the City Council denied Lilly’s

appeal. Lilly states that he received an email a few days later from Clemons, which

allegedly stated the following:

        The mayor just came in and told me that on Monday night the 9th, the
        council will do the review/evaluations on us that they never got around
        to before. I asked him if y’all and I needed to be present and he said no,
        except that Kathy and I need to attend the first part of the meeting because
        they want to have a workshop on the permitting and inspections stuff.
        None of the 3 of us will be invited in for the evaluations, which I am told
        is not so much an evaluation as it is to discuss the direction of the
        departments themselves. There is no more need for the 3 of us to be
        concerned than there was before, as I told y’all then. My interpretation is
        that we may face some changes in the way things are being done, but that
        our employment is not at stake in this process, should you be worried
        about that.

         1 Lilly noted in his live pleading that CLEAT is a non-profit organization consisting of over 17,000

police officers, correctional officers, public-safety employees, and other board-approved members
throughout the State of Texas. Lilly also asserted that the CLEAT is a “labor union” within the meaning
of section 101.051 of the Texas Labor Code. See TEX. LAB. CODE ANN. § 101.051 (West 2006) (defining a
“labor union” as “an incorporated or unincorporated association, group, union . . . of working persons
organized and existing to protect those persons and to improve their working conditions, wages, or
employment relationships . . .”).

The City of Caldwell, Texas v. Lilly                                                                  Page 2
        Subsequently, on February 17, 2009, the City Council convened to discuss,

among other things, “the employment evaluation, duties, discipline or dismissal of

Police Chief Paul Lilly.” Lilly claims that he was present for part of the February 17,

2009 meeting and that the mayor asked several questions and made a number of

remarks regarding Lilly’s hiring of a CLEAT staff attorney to represent him. 2 Following

the February 17, 2009 meeting, City Council members and the mayor voted

unanimously to terminate Lilly’s employment, based on a no-confidence vote.

        According to the City, Lilly responded to his termination by filing suit in federal

court, alleging violations of the Texas Labor Code and the First Amendment to the

United States Constitution. With respect to this initial lawsuit, the City filed a motion to

dismiss. Lilly failed to respond to the City’s dispositive motion, which resulted in

United States District Court Judge Sam Sparks sanctioning Lilly’s attorney and

dismissing Lilly’s claims without prejudice.

        Lilly later re-filed in federal court. The City asserts that Lilly alleged the same

facts in his second lawsuit as he did in the first lawsuit; but he asserted only a First-

Amendment claim in the second lawsuit. The City later filed a motion for summary

judgment, which Judge Sparks eventually granted.




        2 Lilly contends that the City’s mayor, Bernard Rychlik, told him, among other things, that he did

not have to get a union lawyer involved in this matter; that when the union lawyer got involved, “things
got totally out of hand. That was uncalled for”; and that “[w]e ended up with two union lawyers and
everything got out of hand. We just do not do that here in Caldwell.” And, according to Lilly, Rychlik
noted that the January 5, 2009 statement of discipline sent to Lilly was intended to document a matter, not
serve as a reprimand or written warning.

The City of Caldwell, Texas v. Lilly                                                                Page 3
        On February 16, 2011, Lilly filed his original petition in the 335th Judicial District

Court of Texas, asserting that the City and City Council members, Jonnie Vic Barnett,

Jessie Enrique Jr., James Hadley, Norris McManus, and James Wilde, wrongfully

terminated him based on his union membership.3 Lilly subsequently amended his

original petition on September 16, 2011.

        In response to Lilly’s state-court lawsuit, the City filed a plea to the jurisdiction,

special exceptions, and original answer.                  Also contained in this pleading were

arguments pertaining to the affirmative defenses of res judicata, collateral estoppel, and

the statute of limitations. After a hearing, the state-district-court judge denied the City’s

plea to the jurisdiction without explanation. Thereafter, the City filed its notice of

accelerated, interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (West.

Supp. 2011); see also TEX. R. APP. P. 28.1(a).

                                        II.     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 based on governmental immunity challenges

the trial court’s subject-matter jurisdiction. Id.; see State v. Holland, 221 S.W.3d 639, 642

(Tex. 2007). Whether the 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).

        3   Barnett, Enrique Jr., Hadley, McManus, and Wilde are not parties to this appeal.

The City of Caldwell, Texas v. Lilly                                                           Page 4
        The plaintiff has the 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). 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. 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 those facts

which may implicate the merits of the cause of action. Id. at 227.

        A trial court’s review of a plea to the jurisdiction challenging the existence of

jurisdictional facts mirrors that of a traditional motion for summary judgment. Id. at

228; see TEX. R. CIV. P. 166a(c). The governmental unit is required to meet the summary

judgment standard of proof for its assertion that the trial court lacks jurisdiction.

Miranda, 133 S.W.3d at 228. Once the governmental unit meets its burden, the plaintiff

is then required to show that there is a disputed material fact regarding 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

factfinder. 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.’” City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex.

2009) (quoting Miranda, 133 S.W.3d at 228).

The City of Caldwell, Texas v. Lilly                                                    Page 5
                                   III.    GOVERNMENTAL IMMUNITY

        In its first issue, the City argues that the trial court erred in denying its plea to the

jurisdiction because the City is entitled to governmental immunity. Specifically, the

City contends that Chapter 101 of the Texas Labor Code does not unambiguously waive

immunity, and it does not apply to public employers. Lilly counters that he pleaded

sufficient jurisdictional facts to demonstrate that the City violated sections 101.001,

101.052, and 101.301 of the Texas Labor Code and section 617.004 of the Texas

Government Code.4 See TEX. LAB. CODE ANN. §§ 101.001, 101.052, 101.301 (West 2006);

see also TEX. GOV’T CODE ANN. § 617.004 (West 2012).

A.      Applicable Law

        Sovereign immunity protects the State and its various divisions from lawsuits for

money damages. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853

(Tex. 2002).     Governmental immunity provides similar protections to the political

subdivisions of the state, such as counties, cities, and school districts. Wichita Falls State

        4 Though not a model of clarity, Lilly alleged a “Texas Labor Code Section 101.001 et seq Claim”
against the City in his live pleading. (Emphasis in original). See BLACK’S LAW DICTIONARY 455 (7th ed.
2000) (defining “et seq.” as “[a]nd those (pages or sections) that follow”). Lilly did not expressly
reference sections 101.052 and 101.301 of the Texas Labor Code. The City filed special exceptions,
claiming that Lilly’s live pleading is “general, vague[,] and conclusory” with regard to the “alleged
violations of Chapter 101 of the Texas Labor Code. The record does not contain a ruling on the City’s
special exceptions.

         Nevertheless, the substance of Lilly’s allegations touches on the aforementioned provisions.
Accordingly, in deciding this matter, we will consider Chapter 101 of the Texas Labor Code in its entirety.
See id. However, Lilly did not assert a violation of section 617.004 of the Texas Government Code in his
live pleading. See TEX. GOV’T CODE ANN. § 617.004 (West 2012) (“An individual may not be denied public
employment because of the individual’s membership or non[-]membership in a labor organization.”).
Thus, section 617.004 of the Texas Government Code is outside the scope of our review of this matter. See
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004) (noting that, in determining
whether the plaintiff has alleged facts demonstrating that the trial court has jurisdiction, 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).

The City of Caldwell, Texas v. Lilly                                                                 Page 6
Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).          Governmental immunity

encompasses two components: (1) immunity from liability, which bars enforcement of

a judgment against a governmental entity; and (2) immunity from suit, which bars suit

against the entity altogether. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). If

the Legislature has not expressly waived immunity from suit, the State retains such

immunity even if its liability is not disputed. IT-Davy, 74 S.W.3d at 853. Immunity

from liability protects the State from money judgments even if the Legislature has

expressly given consent to sue. Id. A plaintiff who sues the State must establish the

State’s consent to suit. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).

Otherwise, sovereign immunity from suit defeats a trial court’s subject-matter

jurisdiction. Id. And, municipalities, such as the City, enjoy a “‘heavy presumption in

favor of immunity.’” Harris County Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838,

848 (Tex. 2009) (quoting Nueces County v. San Patricio County, 246 S.W.3d 651, 653 (Tex.

2008)).

          As stated earlier, Lilly pleaded several violations of Chapter 101 of the Texas

Labor Code. On appeal, Lilly references sections 101.001, 101.052, and 101.301 of the

Texas Labor Code. Section 101.001 provides that: “All persons engaged in any kind of

labor may associate and form trade unions and other organizations to protect

themselves in their personal labor in their respective employment.” TEX. LAB. CODE

ANN. § 101.001. Further, section 101.052 prohibits the denial of employment based on

membership or non-membership in a labor union. Id. § 101.052. And, section 101.301

notes that:

The City of Caldwell, Texas v. Lilly                                                Page 7
        (a) The right of a person to work may not be denied or abridged because of
            membership or non[-]membership in a labor union or other labor
            organization.

        (b) In the exercise of the right to work, each person shall be free from threats,
            force, intimidation, or coercion.

        (c) A person who violated this subchapter is liable to a person who suffers from
            that violation for all resulting damages.

Id. § 101.301.

B.      Discussion

        In his response to the City’s plea to the jurisdiction, Lilly admitted that the City

itself “may claim sovereign or governmental immunity.”           Moreover, Lilly did not

provide any further statements to refute the City’s immunity argument. Instead, Lilly

focused on the actions of the City Council members who are not parties to this appeal.

Despite this admission, Lilly argues on appeal that: (1) immunity does not apply in this

case because he has pleaded a statutory violation by a governmental entity; (2)

declaratory, injunctive, and mandamus relief is not barred by sovereign immunity if the

governmental entity fails to comply with a statute; and (3) Chapter 101 of the Texas

Labor Code applies to governmental entities. We have several problems with Lilly’s

pleadings and appellate arguments.

        First, a review of Lilly’s live pleading shows that he did not plead for

declaratory, injunctive, or mandamus relief; thus, he cannot now recast his pleadings in

an effort to defeat the City’s immunity argument. See Miranda, 133 S.W.3d at 226, 228

(noting that our review of a governmental entity’s plea to the jurisdiction is confined to

the pleadings and evidence before the trial court); see also Head v. U.S. Inspect DFW, Inc.,

The City of Caldwell, Texas v. Lilly                                                  Page 8
159 S.W.3d 731, 742 (Tex. App.—Fort Worth 2005, no pet.) (“A plaintiff by artful

pleading cannot recast a claim in order to avoid the adverse effect of a statute.”).

Second, Lilly does not direct us to any portion of Chapter 101 of the Texas Labor Code

that clearly and unambiguously waives the City’s immunity. See TEX. LAB. CODE ANN.

§§ 101.001-.303 (West 2006); see also City of Galveston v. State, 217 S.W.3d 466, 469 (Tex.

2007) (“While this immunity can be waived, we have consistently deferred to the

Legislature to do so; indeed, we have said immunity from liability ‘depends entirely

upon statute.’ For its part, the Legislature has mandated that no statute should be

construed to waive immunity absent ‘clear and unambiguous language.’”) (quoting

TEX. GOV’T CODE ANN. § 311.034 (West Supp. 2011); Dallas County Mental Health &

Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998)).

        In addition, Lilly has not directed us to relevant authority stating that a

governmental entity waives immunity by simply violating a statute, even though no

provisions in the chapter clearly and unambiguously indicate the State’s consent to suit.

See, e.g., Jones, 8 S.W.3d at 638 (stating that sovereign immunity deprives the trial court

of subject-matter jurisdiction for lawsuits in which the State or certain governmental

units have been sued unless the State consents to suit).         Furthermore, in his live

pleading, Lilly requested (1) reinstatement at a rate of pay “to which he would have

been entitled but for his termination, together with all wages, benefits, and seniority lost

from February 17, 2009 until the date of his reinstatement”; (2) compensatory damages

in an amount equal to past and future lost wages and benefits; (3) punitive damages;

and (4) attorney’s fees and costs. However, on appeal, Lilly attempts to recast his

The City of Caldwell, Texas v. Lilly                                                  Page 9
pleadings as not a suit for money damages but “simply seeking prospective relief (an

injunction compelling reinstatement via injunctive relief and the like) for the violation

of the statutes going forward.” While Lilly pleaded for reinstatement in the trial court,

he certainly did not formally request a prospective injunction against the City.

        In light of these deficiencies, Lilly requests an opportunity to re-plead. As part of

his request, Lilly wishes to assert a violation of section 617.004 of the Texas Government

Code. See TEX. GOV’T CODE ANN. § 617.004. Even if we were to grant Lilly’s request for

an opportunity to re-plead to include a violation of section 617.004 of the Texas

Government Code, nothing in that chapter clearly and unambiguously waives the

City’s immunity. See id. §§ 617.001-.005 (West 2012). Moreover, we do not believe that

Miranda stands for the proposition that no plea to the jurisdiction may be granted

without allowing the opportunity to re-plead.          See 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.             If the pleadings affirmatively negate the existence of

jurisdiction, then a plea to the jurisdiction may be granted without allowing the

plaintiffs an opportunity to amend.”) (citing County of Cameron v. Brown, 80 S.W.3d 549,

555 (Tex. 2002)). In this case, we find the defects in Lilly’s live pleading to be incurable;

Lilly has not pleaded facts that support any waiver of the City’s immunity. See id.

Thus, having reviewed Lilly’s live pleading and the relevant evidence before the trial

court, we conclude that the trial court erred in denying the City’s plea to the

The City of Caldwell, Texas v. Lilly                                                  Page 10
jurisdiction. See id. at 226; see also Holland, 221 S.W.3d at 642; Blue, 34 S.W.3d at 554. We

therefore sustain the City’s first issue.

                                       IV.    CONCLUSION

        Having sustained the City’s first issue, we need not address its second issue. See

TEX. R. APP. P. 47.1. And based on the foregoing, we reverse the trial court’s denial of

the City’s plea to the jurisdiction and render judgment dismissing with prejudice Lilly’s

claims for lack of jurisdiction. See Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 846

(Tex. 2007) (stating that a dismissal pursuant to a plea to the jurisdiction based on

sovereign immunity is with prejudice).




                                             AL SCOGGINS
                                             Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and rendered
Opinion delivered and filed August 9, 2012
[CV06]




The City of Caldwell, Texas v. Lilly                                                  Page 11
