Court of Appeals of Texas, Fifth District, Dallas
RODNEY D. BAILEY, Appellant
DALLAS COUNTY, TEXAS; DALLAS COUNTY SHERIFF'S DEPARTMENT CIVIL SERVICE COMMISSION; AND JUANITA H. NANEZ, STEVE HANNA AND DWAYNE BISHOP IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE SHERIFF'S DEPARTMENT CIVIL SERVICE COMMISSION, Appellees
Appeal from the 160th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-11206
Justices Bridges, Myers, and Schenck
case concerns a district court's subject-matter
jurisdiction to hear the case of a deputy sheriff, Rodney D.
Bailey, who was terminated by Dallas County and whose civil
service proceeding was dismissed. Bailey appeals the trial
court's dismissal of his suit against Dallas County, the
Dallas County Sheriff's Department's Civil Service
Commission, and the members of the Commission. Bailey brings
five issues on appeal contending the trial court erred by
determining Bailey's claims were barred by appellees'
governmental immunity. We conclude the trial court erred by
granting the plea to the jurisdiction as to Bailey's suit
under section 158.037 of the Local Government Code and his
claim for mandamus but that the trial court did not err by
granting the plea the jurisdiction on Bailey's claim for
declaratory judgment. Accordingly, we reverse the trial
court's judgment in part and affirm in part.
2014, Bailey was a Dallas County Deputy Sheriff. In August of
that year, he was indicted for sexual assault and suspended
from active duty. In September, he received a disciplinary
hearing and was terminated by the sheriff's department
for dereliction of duty related to the indictment. Bailey
timely filed a grievance challenging his termination. In
November and December 2014, the Sheriff's
Department's Civil Service Commission contacted
Bailey's attorney concerning scheduling the hearing
before the Commission, and the attorney said he was not
prepared to proceed to the hearing at that time. On May 1,
2015, the district attorney dismissed the indictment against
Bailey because the State could not procure the testimony of
the complaining witness. On July 9, Bailey's attorney
sent a letter to the Commission requesting that Bailey's
grievance be set for a hearing before the Commission.
hearing before the Commissioners, the County requested that
the Commissioners dismiss Bailey's grievance because he
did not request a hearing on his grievance within thirty days
of the dismissal of the indictment, which the County asserted
was required by section 5.02(2) of the Dallas County
Sheriff's Department Civil Service Rules. The Commissioners
granted the County's request and dismissed Bailey's
grievance without reaching the merits.
then filed suit in district court under section 158.037 of
the Texas Local Government Code appealing the
Commission's ruling. See Tex. Loc. Gov't
Code Ann. § 158.037 (West 2008). Besides bringing a
cause of action under section 158.037 contending that section
5.02(2) did not apply, Bailey's suit also sought
declarations under the Uniform Declaratory Judgment Act that
the County failed to comply with chapter 158 of the Local
Government Code, that section 5.02(2) and a similar
provision, section 158.0351(d) of the Local Government Code,
were void for vagueness, and that the Commissioners' act
of dismissing his grievance under section 5.02(2) without
considering the merits was an ultra vires act.
Bailey also sought a mandamus requiring the Commission to
hold a hearing on the merits of his grievance as required by
chapter 158. Appellees filed a plea to the jurisdiction
asserting Bailey's claims were barred by governmental
immunity. The trial court granted the plea to the
jurisdiction and dismissed Bailey's suit.
immunity from suit protects cities and counties and other
subdivisions of the state from suit unless immunity has been
expressly waived by the legislature. See Harris County v.
Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Without a
legislative waiver of governmental immunity, courts have no
jurisdiction to adjudicate any claim against the County.
See id. Likewise, "there is no right to
judicial review of an administrative order unless a statute
provides a right or unless the order adversely affects a
vested property right or otherwise violates a constitutional
right." Continental Cas. Ins. Co. v. Functional
Restoration Assocs., 19 S.W.3d 393, 397 (Tex. 2007).
to the jurisdiction challenges the trial court's
authority to determine the subject matter of a specific cause
of action. Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000). 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. Id. The plea should be decided without
delving into the merits of the case. Id. To prevail
on a plea to the jurisdiction, a defendant must demonstrate
an incurable jurisdictional defect apparent on the face of
the pleading rendering it impossible for the plaintiff's
petition to confer jurisdiction on the district court.
MAG-T, L.P. v. Travis Cent. Appraisal Dist., 161
S.W.3d 617, 624 (Tex. App.-Austin 2005, pet. denied).
a trial court has subject matter jurisdiction is a question
of law. Tex. Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Therefore, we
review a challenge to the trial court's subject matter
jurisdiction de novo. Id. In performing this review,
an appellate court does not look to the merits of the case
but considers only the pleadings and evidence relevant to the
jurisdictional inquiry. Blue, 34 S.W.3d at 554-55.
We construe the plaintiff's pleadings liberally in the
plaintiff's favor and look to the pleader's intent.
Miranda, 133 S.W.3d at 226. When a plea to the
jurisdiction challenges the existence of jurisdictional
facts, the trial court may consider the evidence necessary to
resolve any dispute over those facts. Mission Consol.
Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex.
2012). In that situation, the defendant has the burden of
proving as a matter of law that the trial court lacks
jurisdiction. Id. (trial court's review of plea
to jurisdiction "mirrors that of a traditional summary
APPEAL OF COMMISSION'S RULING
first issue, Bailey contends the trial court erred by
determining it lacked jurisdiction over his appeal of the
Commission's decision under section 158.037 of the Local
158.037 waives the County's immunity from suit for review
in district court of certain decisions of civil service
commissions concerning employees of sheriff's
departments. That section provides,
An employee who, on a final decision by the commission, is
demoted, suspended, or removed from a position may appeal the
decision by filing a petition in a district court in the
county within 30 days after the date of the decision.
Loc. Gov't § 158.037(a). Appellees contend that
Bailey is not entitled to district court review of his case
because the Commission's decision did not demote,
suspend, or remove him from his position; instead, appellees
argue, the Commission's decision dismissed the case
because Bailey did not timely request a hearing before the
Commission after his criminal proceeding was dismissed. In
support of this argument, appellees rely on an opinion from
the El Paso Court of Appeals, County of El Paso v.
Zapata, 338 S.W.3d 78 (Tex. App.-El Paso 2011, no pet.).
Zapata, a group of deputy sheriffs were suspended or
terminated. Id. at 80. Under an agreement between
the sheriff and the El Paso County Sheriff's
Officer's Association, the deputies could have their
suspensions and terminations reviewed by either an arbitrator
or the civil service commission by requesting review within
ten days of the termination or suspension. The deputies
timely chose arbitration. However, the sheriff's term
ended before the arbitration hearing. The new sheriff was not
a signatory to the arbitration agreement. When the new
sheriff took office, the deputies decided to forego
arbitration and submitted a request to have their grievances
heard by the commission. Id. The commission
determined it was without jurisdiction because the deputies
had not timely requested review by the commission.
Id. at 81. The deputies then filed suit, seeking
review of the commission's decision under section
158.037. The trial court denied the plea to the jurisdiction,
and the county and sheriff appealed that ruling. Id.
at 82. The El Paso Court of Appeals concluded the trial court
erred. The appellate court ...