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Bailey v. Dallas County

Court of Appeals of Texas, Fifth District, Dallas

December 21, 2017


         On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-11206

          Before Justices Bridges, Myers, and Schenck



         This 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.


         In 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.

         At the 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.[1] The Commissioners granted the County's request and dismissed Bailey's grievance without reaching the merits.[2]

         Bailey 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.


         Governmental 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).

         A plea 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).

         Whether 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 judgment motion").


         In his 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 Government Code.

         Section 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.).

         In 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 ...

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