                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00109-CV

CITY OF BRUCEVILLE-EDDY, TEXAS,
                                                          Appellant
v.

DANIEL FERGUSON,
                                                          Appellee


                           From the 82nd District Court
                               Falls County, Texas
                              Trial Court No. 38094


                           MEMORANDUM OPINION


      Daniel Ferguson was terminated as the Chief of Police for the City of Bruceville-

Eddy by the City Council effective August 11, 2011. Ferguson ultimately sued the City

for declaratory relief.   In response, the City filed a motion to dismiss for lack of

jurisdiction asserting immunity from suit. The trial court denied the motion, and the

City appealed. Because the trial court erred in denying the City’s motion, the trial

court’s order is reversed and a judgment is rendered that Ferguson’s claims be

dismissed.
               IMMUNITY AND THE UNIFORM DECLARATORY JUDGMENTS ACT

       In three issues, the City contends that the trial court erring in denying its motion

to dismiss for lack of jurisdiction. In its first issue, the City argues that it is immune

from a suit for money damages and immunity has not been waived by the Uniform

Declaratory Judgments Act.

       Sovereign immunity protects the State and its various divisions, such as agencies

and boards, from suit and liability, whereas governmental immunity provides similar

protection to the political subdivisions of the State, such as counties, cities, and school

districts. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011) (citing

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)). No one disputes

that the City is afforded the protections of governmental immunity. When dealing with

these immunities, the Legislature has been required to express its intent to waive

immunity clearly and unambiguously. Id. (citing Univ. of Tex. Med. Branch at Galveston

v. York, 871 S.W.2d 175, 177 (Tex. 1994) and TEX. GOV'T CODE ANN. § 311.034 (West

Supp. 2011) (codifying the clear and unambiguous standard)).

       An order which grants or denies a plea questioning the trial court’s jurisdiction is

reviewed de novo. See State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). When such a

plea challenges the pleadings, we determine if the pleader has alleged facts that

affirmatively demonstrate the court's jurisdiction to hear the cause. Tex. Dep't of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Ass'n of Bus. v. Tex. Air Control


City of Bruceville-Eddy v. Ferguson                                                   Page 2
Bd., 852 S.W.2d 440, 446 (Tex. 1993). We construe the pleadings liberally in favor of the

plaintiff and look to the pleader’s intent. Id.

       Ferguson’s suit was filed pursuant to the Uniform Declaratory Judgments Act;

and while the UDJA waives immunity for certain claims, such as challenges to the

validity of a municipal ordinance or statute, it is not a general waiver of immunity. TEX.

CIV. PRAC. & REM. CODE ANN. § 37.006(b) (West 2008); Tex. Parks & Wildlife Dep't v.

Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011); City of El Paso v. Heinrich, 284 S.W.3d 366,

373 n.6 (Tex. 2009). The UDJA does not alter or enlarge a trial court's jurisdiction;

rather, it is "merely a procedural device for deciding cases already within a court's

jurisdiction." Sawyer Trust, 354 S.W.3d at 888 (quoting Tex. Ass'n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)); Heinrich, 284 S.W.3d at 370.          And a

litigant's request for declaratory relief does not alter a suit's underlying nature.

Heinrich, 284 S.W.3d at 370. Accordingly, immunity will bar an otherwise proper UDJA

suit that has the effect of establishing a right to relief against the State or its political

subdivisions for which the Legislature has not waived immunity. Sawyer Trust, 354

S.W.3d at 388.

       Ferguson does not challenge the validity of a municipal ordinance or statute.

Instead, he requests a declaration that the City violated sections 614.022-.023 of the

Texas Government Code and requests reinstatement as of the time of his termination

including an award for salary and monetary benefits from the time he was terminated


City of Bruceville-Eddy v. Ferguson                                                    Page 3
to the time he is reinstated. This is a suit for money damages, and the City is immune

from such a suit. See City of Dallas v. Albert, 354 S.W.3d 368, 378 (Tex. 2011); City of El

Paso v. Heinrich, 284 S.W.3d 366, 368 (Tex. 2009); City of Houston v. Williams, 216 S.W.3d

827, 828-29 (Tex. 2007). Further, there is nothing in sections 614.022-.023 that clearly and

unambiguously waives the City’s immunity. See TEX. GOV’T CODE ANN. §§ 614.022-.023

(West 2012) (signed complaint against peace officer to be given to officer within a

reasonable time; no disciplinary action may be taken without a copy of the complaint

given to the officer).

        Ferguson asserts, however, that section 180.006(c) of the Texas Local Government

Code waives immunity for the recovery of back pay. TEX. LOC. GOV’T CODE ANN. §

180.006(c) (West 2008). Ferguson’s pleadings, even read liberally, do not allege a cause

of action pursuant to section 180.006 which might waive the City’s immunity. 1

        Further, Ferguson relies on the Dallas Court of Appeals’ opinion in City of

Seagoville v. Lytle for the proposition that because part of his declaratory judgment

action sought his reinstatement, he did not seek an award of money damages and that

portion is not barred by immunity. City of Seagoville v. Lytle, 227 S.W.3d 401, 410 (Tex.

App.—Dallas 2007, no pet.). His reliance on Lytle is misplaced. As the Dallas Court of

Appeals later acknowledged, Lytle was issued before the Supreme Court’s opinion in

Heinrich discussing the limitations of a waiver of immunity per the UDJA and has no

1Ferguson asserts in his brief that he mentioned section 180.006 to the trial court at the hearing on the
City’s motion. However, no record was made of that hearing.

City of Bruceville-Eddy v. Ferguson                                                               Page 4
applicability. City of Dallas v. Turley, 316 S.W.3d 762, 771 (Tex. App.—Dallas 2010, pet.

denied). Because Ferguson does not challenge the validity of an ordinance or statute,

the City’s immunity is not waived for any part of Ferguson’s suit.

       Finally, Ferguson asserts that if we determine his declaratory judgment claims

are actually ultra vires claims that should have been brought against city officials, then

we should remand the case so he can amend his pleadings. See Heinrich, 284 S.W.3d at

371-72 (holding that a suit seeking a declaratory judgment that a governmental official

acted without legal or statutory authority, such as where a statute or the constitution

requires that a contract be performed in a certain way, is an ultra vires claim that must

be brought against the official).     But Heinrich clarified that only prospective, not

retrospective, relief is available in an ultra vires claim. City of Dallas v. Albert, 354

S.W.3d 368, 379 (Tex. 2011); Id. at 376.   Because Ferguson sought only retrospective

relief, that is, reinstatement as of the time of his termination and back pay, his

declaratory judgment claims must be dismissed. See id.

       The City was immune from suit as pled by Ferguson; and thus, the trial court

erred in denying the City’s motion to dismiss.       The City’s first issue is sustained.

Because of our disposition of the City’s first issue, we need not address the City’s

remaining issues.




City of Bruceville-Eddy v. Ferguson                                                 Page 5
                                        CONCLUSION

       The trial court’s order denying the City’s motion to dismiss for lack of

jurisdiction is reversed and a judgment is rendered that Ferguson’s claims be dismissed.




                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and rendered
Opinion delivered and filed November 1, 2012
[CV06]




City of Bruceville-Eddy v. Ferguson                                               Page 6
