Court of Appeals of Texas, Ninth District, Beaumont
Submitted on June 16, 2016
Appeal from the 136th District Court Jefferson County, Texas
Trial Cause No. D-197, 552
McKeithen, C.J., Kreger and Johnson, JJ.
CHARLES KREGER Justice
Jefferson County, Texas appeals from two orders of the trial
court denying its plea to the jurisdiction and granting
appellee Victor Stines's request for a declaratory
judgment and writ of mandamus to compel the County to submit
to arbitration. In five issues, the County argues that: (1)
Stines failed to plead and prove a valid waiver of the
County's immunity from suit; (2) the trial court erred in
concluding that the Uniform Declaratory Judgment Act waives
the County's immunity from suit; (3) Chapter 174 of the
Texas Local Government Code does not waive the County's
immunity from suit; (4) the County did not waive its immunity
by entering into or accepting benefits under the parties'
collective bargaining agreement; and (5) the trial court
erred by finding that Stines timely invoked his right to
arbitration under that agreement. The County also challenges
Stines's standing to bring suit. For the reasons set
forth below, we reverse the trial court's order denying
the County's plea to the jurisdiction, vacate the trial
court's order granting Stines's request for a
declaratory judgment and writ of mandamus, and render
judgment granting the County's plea to the jurisdiction
and dismissing the cause for lack of jurisdiction.
Jefferson County Deputy Constables Association (the
"Deputy Constables Association"), Jefferson County
("the County"), and the Constables for Precincts 1,
2, 4, 6, 7, and 8 of the County entered into a collective
bargaining agreement for the period commencing October 1,
2013, and ending September 30, 2014 (the
"Agreement"). The Agreement states that it "is
made and entered into" by the parties "in
accordance with all applicable state and federal statutes,
including the Fire and Police Employee Relations Act of Texas
[("FPERA")] (Chapter 174 of the Texas Local
Government Code)." The Agreement further provides that
its "general purpose" is: to promote the mutual
interests of the County and the deputy constables; to provide
for equitable and peaceful adjustments of differences that
may arise; to establish proper standards of wages, hours and
other terms and conditions of employment for
"policemen" as defined in the Fire and Police
Employee Relations Act of Texas, with the objective of
providing a sound basis for the efficient and effective
delivery of services to the public.
25 of the Agreement governs disciplinary actions taken by the
Constable against deputy constables. Article 25 provides:
The purpose of this Article is to establish a procedure for
the fair, expeditious and orderly adjustment of
disciplinary actions taken by the Constable.
Upon notification of a complaint filed by any person, or
initiated by the Constable due to job performance, the
Constable shall thoroughly investigate within a reasonable
period of time consistent with the nature of the complaint
Upon completion of any investigation, the Constable shall
determine the disciplinary action to be taken against the
affected deputy. The decision of the Constable shall be based
upon whether or not just cause exists for the discipline. For
the purposes of this Section, the term "just cause"
means that the disciplinary action of the Constable's
Office was reasonable in light of all circumstances; or was
done for good and sufficient reasons.
Within two (2) weeks of the Constable's decision to
discipline a Deputy, the Deputy may invoke his right to
binding arbitration pursuant to the rules of the American
Agreement defines "discipline" to mean "a
suspension without pay or termination."
September 2015, Stines, a former deputy constable in the
office of the Constable for Jefferson County Precinct 1,
filed suit against the County, alleging that he had been
"subjected to a hostile work environment while employed
by [the County.]" Specifically, Stines alleged that in
June 2014, during his employment as a deputy constable for
the County, the chief deputy constable of his precinct made
threats against him, causing Stines to have concerns about
his safety at work. According to the petition, Stines filed
what was supposed to be an anonymous complaint about the
chief deputy constable's actions; however, the complaint
was not kept anonymous, and over the next several months,
Stines was "targeted" by both the County and the
constable of his precinct and was subjected "to unjust
employment practices and wrongful accusations." Stines
alleged that he was ultimately suspended with pay in August
2014, and that his employment terminated on September 23,
petition alleged that on October 7, 2014, his attorney mailed
a written notice of appeal to the constable, invoking
Stines's right under Article 25 of the Agreement to
binding arbitration of the constable's decision to
terminate his employment. Stines claimed that his attorney
also attempted to fax a copy of the notice of appeal to the
constable on the same date, but that "due to
unintentional and unforeseeable technological difficulties,
" the fax could not be transmitted. Stines alleged,
however, that the notice was ultimately transmitted by fax on
October 8, 2014. Stines alleged that despite his compliance
with the notice requirements of Article 25, the County
refused to proceed to arbitration, claiming that Stines had
failed to timely invoke his right to arbitration under the
on these alleged facts, Stines asserted a claim against the
County under the Uniform Declaratory Judgment Act
("DJA"), seeking a declaration of his "right
to compel [the County] to participate in binding arbitration
of his wrongful discharge from [the County] in accordance
with the Agreement." He also sought a writ of mandamus
requiring the County "to participate in binding
arbitration of his wrongful discharge from [the County] in
accordance with the Agreement." Further, Stines alleged
that he was entitled to an award of "actual
damages" of "over $100, 000 but not more than $200,
000[, ]" as well as an award of reasonable and necessary
attorney's fees under section 37.009 of the DJA.
County filed an answer and a first amended answer, asserting
various defenses and affirmative defenses. The County also
filed a plea to the jurisdiction in response to Stines's
claims. In its plea to the jurisdiction, the County argued
that it is protected from suit under the doctrine of
governmental immunity and that Stines's claims do not
fall within any waiver of that immunity. The County also
argued that deputy constables are not "police
officers" under FPERA, that deputy constables are
therefore not statutorily authorized to collectively bargain
with the County, and that the Agreement is void and
unenforceable. The County attached no evidence to its plea to
filed a response to the County's plea to the
jurisdiction. In his response, Stines argued that the
County's immunity from suit had been waived: (1) by
legislative consent in sections 174.008, 174.251, and 174.252
of the Texas Local Government Code; (2) by the County's
act of entering into the Agreement, which expressly states
that it is made and entered into "in accordance with . .
. the Fire and Police Employee Relations Act of Texas
(Chapter 174 of the Texas Local Government Code)"; and
(3) by the County's acceptance of Stines's services
under the Agreement. Further, construing the County's
argument regarding the validity of the Agreement as a
challenge to his standing to bring suit, Stines argued that
he had standing to enforce the terms of the Agreement against
the County because deputy constables qualify as "police
officers" under Chapter 174 of the Texas Local
Government Code and are therefore statutorily authorized to
collectively bargain under that statute. Stines attached a
copy of the Agreement to his response in support of his
a non-evidentiary hearing, the trial court denied the
County's plea to the jurisdiction. The trial court issued
two letters to counsel explaining the basis for its decision.
In the first letter, dated January 20, 2016, the trial court
addressed the County's assertion of governmental immunity
to suit. In that letter, the trial court stated, in relevant
part (footnotes and citations omitted):
Here, the plaintiff seeks a Court Order enforcing the
arbitration provision contained in the Collective Bargaining
Agreement. Implicit in that request would be a declaration
that deputy constables qualify for inclusion in Chapter 174
of the Local Government Code, which is a legislative waiver
Texas courts have recognized that a declaratory judgment
action can, in fact, be used to clarify the applicability of
[a] specific statute.
In [Texas Education Agency v.] Leeper, the
Texas Supreme Court concluded that the legislature, by
enacting Chapter 37 of the Tex. Civ. Prac. Rem. Code (which
specifically empowers courts to construe statutes and
requires the joinder of adverse parties) waived governmental
immunity for those purposes where the adverse party is a
governmental entity (including attorney's fees).
The fact that plaintiff, likewise, pleads for recovery of
damages does not mandate dismissal of a proper declaratory
The plaintiff, in this matter, also seeks injunctive relief
to require the County to arbitrate. Chapter 37 Tex. Civ.
Prac. Rem. Code, likewise, authorizes a Court to grant
"further relief" when necessary and the two
requests can be combined.
Accordingly, this Court will construe the plaintiff's
petition as (a) seeking a declaratory judgment as to the
applicability of Chapter 174 to deputy constables, (b)
seeking injunctive relief as necessary and proper and (c)
requesting an award of attorney's fees.
extent, the defendant's Plea to the Jurisdiction is
denied. In the second letter, dated February 5, 2016, the
trial court concluded that Stines had standing to pursue his
claims against the County because deputy constables are
"police officers" under Chapter 174 of the Texas
Local Government Code and are therefore authorized to
collectively bargain with their employer.
February 5, 2016, the trial court entered a written order
denying the County's plea to the jurisdiction. The trial
court's order states:
ON THIS DAY came on to be considered the Plea to the
Jurisdiction of Defendant, Jefferson County, Texas and the
Court, having considered the pleadings and arguments of
counsel is of the opinion that said Plea should in all things
[be] DENIED. The Court construes the Original Petition of
Plaintiff, Victor Stines, as (1) seeking a declaratory
judgment as to the applicability of Chapter 174 of the Texas
Civil Practice and Remedies Code to deputy constables,
(2)seeking injunctive relief as necessary and proper, and (3)
requesting an award of attorney's fees.
It is, therefore, ORDERED, ADJUDGED and DECREED that the Plea
to the Jurisdiction of Defendant, Jefferson County, Texas is
February 5, 2016, the trial court also entered a second
written order granting Stines's request for a declaratory
judgment and request for writ of mandamus. The second order
contains findings of fact and conclusions of law relating to
the merits of Stines's claims, and it orders the parties
"to participate in binding arbitration as required by
the Agreement to determine all issues related to the
discipline of [Stines] by [the County]." Thereafter, the
County appealed, challenging both the trial court's order
denying the County's plea to the jurisdiction and the
trial court's order granting Stines's request for a
declaratory judgment and request for writ of
Effect of the Trial Court's Letter Rulings
preliminary matter, we must determine the effect, if any, of
the trial court's letter rulings. Both parties have
treated the letter rulings as providing the bases of the
trial court's order denying the County's plea to the
jurisdiction. This treatment of the letter rulings is not
unreasonable given that the language in the trial court's
order denying the County's plea appears to be taken,
almost verbatim, from the trial court's January 20, 2016,
letter ruling and the grounds stated in both letter rulings
are consistent with the trial court's denial of the
County's plea to the jurisdiction. However, we note that
there is some authority holding that, in certain
circumstances, a trial court's prejudgment letter is not
competent evidence of the basis for its judgment. See
Cherokee Water Co. v. Gregg Cty. Appraisal Dist., 801
S.W.2d 872 (Tex. 1990).
Cherokee Water Co., the trial court sent counsel a
prejudgment letter stating that it had considered certain
evidence in making its ruling. Id. at 878. However,
nothing in the formal findings of fact, filed after the
judgment was signed, indicated that the trial court had
considered the evidence referenced in the prejudgment letter
for any purpose. Id. On appeal, Cherokee Water
argued that the prejudgment letter was a finding of fact and
that the trial court had improperly considered the evidence
referred to in the prejudgment letter in making its ruling.
Id. at 877-78. The Texas Supreme Court, however,
noted that the formal findings of fact and conclusions of law
did not state whether the trial court considered the evidence
referenced in the prejudgment letter and that there was other
evidence that supported the trial court's decision.
Id. at 878. Therefore, the Court explained, the
trial court "could have disregarded the evidence
[referred to in the prejudgment letter] at the time the
judgment was actually signed." Id. Accordingly,
the Court concluded that the prejudgment letter was not a
finding of fact and was "not competent evidence of the
trial court's basis for judgment." Id.
the trial court in Cherokee Water Co., the trial
court in the present case did not enter formal findings of
fact and conclusions of law specifically relating to its
ruling on the County's plea to the jurisdiction.
Therefore, this case is factually distinguishable from
Cherokee Water Co. See In re Estate of
Miller, 446 S.W.3d 445, 451-52 (Tex. App.-Tyler 2014, no
pet.) (concluding that the trial court's failure to file
formal findings of fact and conclusions of law was a factor
distinguishing the case from Cherokee Water Co.);
Kendrick v. Garcia, 171 S.W.3d 698, 702 (Tex.
App.-Eastland 2005, pet. denied) (distinguishing Cherokee
Water Co., in part, on the basis that the trial court in
the case before it did not enter formal findings of fact and
conclusions of law). Further, as noted, the language in the
trial court's order denying the County's plea to the
jurisdiction appears to be taken, almost word for word, from
the trial court's January 20, 2016 letter ruling, and the
January 20, 2016 letter ruling provides an extensive
explanation for that language. In reviewing the record, we do
not see any other applicable legal theories-other than those
stated in the trial court's January 20, 2016 letter
ruling-that would support the specific statements contained
in the trial court's order denying the County's plea.
See Long Term Care Pharm. All. v. Tex. Health & Human
Servs. Comm'n, 249 S.W.3d 471, 476-77 (Tex.
App.-Eastland 2007, no pet.) (concluding that it was
appropriate to consider the trial court's letter ruling
as evidence of the basis of the trial court's ruling
where both parties treated the trial court's ruling as
having been based on the grounds stated in the letter and,
after reviewing the record, the appellate court did "not
see any other applicable theory that would support the trial
court's ruling"). Additionally, the trial
court's February 5, 2016 letter ruling sets forth the
trial court's reasoning with respect to the remaining
jurisdictional issue raised by the parties but not addressed
in the January 20, 2016 letter-namely, Stines's standing
to bring suit-and the trial court's conclusions regarding
Stines's standing in that letter are entirely consistent
with the trial court's order denying the County's
plea to the jurisdiction. Therefore, under the facts of this
case, we treat the trial court's letter rulings as
competent evidence of the trial court's basis for denying
the County's plea to the jurisdiction.
Plea to the Jurisdiction
issues one through four, the County challenges the trial
court's denial of its plea to the jurisdiction.
Specifically, the County contends that the trial court should
have granted its plea because the County is entitled to
governmental immunity with respect to each of Stines's
claims and because Stines has failed to plead or prove a
valid waiver of that immunity. Additionally, the County
argues that the trial court lacked subject matter
jurisdiction over Stines's claims because Stines has no
standing to assert his claims in this case. We begin with the
County's arguments regarding governmental immunity
because they are dispositive of the issues in this appeal.
Standard of Review
plea to the jurisdiction is a dilatory plea that seeks
dismissal of a case for lack of subject matter
jurisdiction." Harris Cty. v. Sykes, 136 S.W.3d
635, 638 (Tex. 2004). "Subject matter jurisdiction is
essential to the authority of a court to resolve a
case." Tex. Ass'n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 443 (Tex. 1993). Because the
existence of subject matter jurisdiction is a question of
law, we review a trial court's ruling on a plea to the
jurisdiction de novo. Houston Belt &
Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160
determining whether a trial court has subject matter
jurisdiction, our analysis begins with the live pleadings.
Heckman v. Williamson Cty., 369 S.W.3d 137, 150
(Tex. 2012). The pleader has the initial burden of alleging
facts that affirmatively demonstrate the trial court's
jurisdiction to hear the cause. Tex. Ass'n of
Bus., 852 S.W.2d at 446. Whether a pleader has alleged
facts that affirmatively demonstrate a trial court's
subject matter jurisdiction is a question of law reviewed
de novo. Tex. Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe
the pleadings liberally, taking all factual allegations as
true, and look to the pleader's intent. Heckman,
369 S.W.3d at 150; Miranda, 133 S.W.3d at 226. 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
we should afford the plaintiff an opportunity to amend.
Id. at 226-27. If, on the other hand, the pleadings
affirmatively negate the existence of jurisdiction, then a
plea to the jurisdiction may be granted without affording the
plaintiff an opportunity to amend. Id. at 227.
reviewing a plea to the jurisdiction, we may also consider
evidence submitted by the parties and must do so when
necessary to resolve the jurisdictional issues raised.
Heckman, 369 S.W.3d at 150; Bland Indep. Sch.
Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). "We
do not adjudicate the substance of the case but instead
determine whether a court has the power to reach the merits
of the claim." Satterfield & Pontikes Constr.,
Inc. v. Tex. S. Univ., 472 S.W.3d 426, 430 (Tex.
App.-Houston [1st Dist.] 2015, pet. denied). "Our
ultimate inquiry is whether the particular facts presented,
as determined by the foregoing review of the pleadings and
any evidence, affirmatively demonstrate a claim within the
trial court's subjectmatter jurisdiction."
Tex. Dep't of State Health Servs. v. Balquinta,
429 S.W.3d 726, 738 (Tex. App.-Austin 2014, pet. dism'd).
County's issues on appeal also involve matters of
statutory construction, which is a question of law that we
review de novo. In re Mem'l Hermann Hosp.
Sys., 464 S.W.3d 686, 700 (Tex. 2015). Our primary
"objective in construing a statute is to give effect to
the Legislature's intent, which requires us to first look
to the statute's plain language." Lippincott v.
Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per
curiam). If the statute is clear and unambiguous, we must
read the language according to its common meaning, unless a
different meaning is supplied or is apparent from the
context, or the plain meaning would lead to absurd results.
Crosstex Energy Servs., L.P. v. Pro Plus,
Inc., 430 S.W.3d 384, 389-90 (Tex. 2014). Further, in
ascertaining legislative intent, we may consider other
matters, "including the objective of the law, its
history, and the consequences of a particular
construction." State v. Shumake, 199 S.W.3d
279, 284 (Tex. 2006) (citing Tex. Gov't Code Ann. §
311.023(1), (3), (5) (West 2013)); see also Tex.
Gov't Code Ann. § 312.005 (West 2013) ("In
interpreting a statute, a court shall diligently attempt to
ascertain legislative intent and shall consider at all times
the old law, the evil, and the remedy.").
construction of a statute "requires reading the statute
as a whole rather than interpreting provisions in
isolation." In re Mem'l Hermann Hosp. Sys.,
464 S.W.3d at 701. "[C]ourts should not give an
undefined statutory term a meaning out of harmony or
inconsistent with other provisions, although it might be
susceptible of such a construction if standing alone."
Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314,
318 (Tex. 2002). Further, we must give effect to all of a
statute's words and, if possible, not treat any statutory
language as mere surplusage. Shumake, 199 S.W.3d at
287. "We presume the Legislature selected language in a
statute with care and that every word or phrase was used with
a purpose in mind." Tex. Lottery Comm'n v. First
State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010).
immunity protects political subdivisions of the State,
including counties, from lawsuits for money damages, unless
such immunity has been waived. See Reata Constr. Corp. v.
City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006);
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692,
694 n.3 (Tex. 2003). Governmental immunity encompasses two
distinct principles: immunity from liability and immunity
from suit. Lubbock Cty. Water Control & Imp. Dist. v.
Church & Akin, L.L.C., 442 S.W.3d 297, 300 (Tex.
2014). Immunity from liability bars enforcement of a judgment
against a governmental entity and is an affirmative defense.
Brown & Gay Eng'g, Inc. v. Olivares, 461
S.W.3d 117, 121 (Tex. 2015). Immunity from suit, on the other
hand, bars suit against the governmental entity altogether
because it deprives a court of subject matter jurisdiction.
Church & Akin, 442 S.W.3d at 300.
governmental entity that enters into a contract waives its
immunity from liability, voluntarily binding itself like any
other party to the terms of the agreement, but it does not
waive its immunity from suit. Id. Governmental
entities retain immunity from suit unless it has been waived.
City of Houston v. Williams, 353 S.W.3d 128, 134
(Tex. 2011). Texas courts ordinarily defer to the Legislature
to waive sovereign immunity from suit because this allows the
Legislature to protect its policy making functions. Ben
Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex.
Political Subdivisions Prop./Cas. Joint Self-Ins. Fund,
212 S.W.3d 320, 326 (Tex. 2006). As the Texas Supreme Court
has explained, "the Legislature is better suited than
the courts to weigh conflicting public policies associated
with waiving immunity and subjecting the government to
increased liability, the burden of which the public must
bear." Id. at 327. A legislative waiver of
immunity may be in the form of either a statute or a
legislative resolution, but in either case the
Legislature's intent to waive immunity must be expressed
in "clear and unambiguous language." Gen.
Servs. Comm'n v. Little-Tex Insulation Co., 39
S.W.3d 591, 594 (Tex. 2001). "If the Legislature has not
expressly waived immunity from suit, the State retains such
immunity even if its liability is not disputed."
Tex. Nat. Res. Conservation Comm'n v. IT-Davy,
74 S.W.3d 849, 853 (Tex. 2002).
Waiver of ...