Court of Appeals of Texas, Second District, Fort Worth
THE 442ND DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO.
SUDDERTH, CJ.; KERR and PITTMAN, JJ.
T. PITTMAN JUSTICE.
interlocutory appeal, Appellant the Town of Shady Shores (the
Town) appeals the trial court's denial of its no-evidence
and traditional motions for summary judgment on the claims
brought against it by Appellee Sarah Swanson, the Town's
former city secretary. In six issues, the Town challenges the
trial court's jurisdiction and the trial court's
determination of Swanson's objections to the Town's
no-evidence summary judgment motion. After careful review, we
affirm in part and reverse in part.
special meeting of the Town of Shady Shores City Council (the
Council) on February 24, 2014, the Town provided Swanson with
an employee performance evaluation. The Council then gave her
ten minutes to respond to the evaluation. It further allowed
her to respond in writing and to address the Council
regarding the evaluation at a special council meeting three
days later on February 27, 2014. Both Swanson and her
attorney appeared at the February 27th council meeting. At
that meeting, the Council voted to terminate Swanson's
employment for lack of confidence in her performance as city
secretary. See Tex. Loc. Gov't Code Ann. §
22.077(b) (West 2008). Swanson then sued the Town.
original petition, Swanson alleged that the Town fired her
because she reported and refused to engage in destroying a
tape recording of a meeting of the Town's investment
committee, a subcommittee of the Council. She alleged that
after she refused, members of the investment committee
destroyed the recording; that she told the Council, the
mayor, and the Town's attorney that the recording's
destruction violated state law; and that this reporting led
to her firing. Swanson asserted a statutory wrongful
discharge claim under the Texas Whistleblower Act, Tex.
Gov't Code Ann. § 554.0035 (West 2012), and a common
law claim for wrongful discharge under Sabine Pilot
Service, Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985).
response, the Town filed a plea to the jurisdiction asserting
governmental immunity for both claims. Swanson then amended
her petition to add a claim for violation of her free speech
rights under the Texas Constitution and claims for
declaratory relief based on the Town's alleged violations
of the Texas Open Meetings Act (TOMA) and of her rights under
the "due course" provision of article 1, section 19
of the Texas Constitution. See Tex. Const. art. I,
§ 19; Tex. Gov't Code Ann. § 551.002 (West
2017). Importantly, Swanson did not allege separate and
distinct claims for violations of TOMA or the Texas
Constitution, rather she alleges that the Town committed
violations of these provisions in support of her standalone
claim for a declaratory judgment.
support of these claims, Swanson alleged that on February 12,
2014, the Council wrongfully deliberated in executive session
about whether to terminate her employment, that the decision
to do so was also made during executive session that day, and
that no agenda had been posted before the meeting apprising
the public of the purpose of the executive session. Swanson
also alleged that for the February 27, 2014 special council
meeting at which the Council terminated her employment, the
Town did not post an agenda before the meeting sufficiently
apprising the public that action might be taken to remove her
from her job. Swanson further asserted that the Town violated
article I, section 19 of the Texas Constitution because she
was not afforded the opportunity to confront her accusers or
otherwise address the Council before the deliberation in
which the decision was made to terminate her employment and
because no procedure was adopted or employed for her to
protest or appeal the Council's decision. Additionally,
Swanson added allegations that the Town fired her in
retaliation for reporting not only the destruction of the
meeting tape, but also for reporting that the mayor, Cindy
Spencer, had taken recordings of town meetings home with her
and had at one point intended to call Swanson into a meeting
under false pretenses to ask for Swanson's resignation.
the trial court ruled on the Town's plea to the
jurisdiction-rather than amend its plea or file another such
plea on the claims in Swanson's amended petition-the Town
filed a motion for traditional summary judgment and a
separate motion for no-evidence summary judgment that
challenged the trial court's jurisdiction of
Swanson's additional claims. In its no-evidence motion,
the Town asserted that it was entitled to governmental
immunity on Swanson's declaratory judgment claims because
she had no evidence that she was entitled to declaratory
relief. In its traditional motion, the Town asserted that it
was entitled to summary judgment on Swanson's declaratory
judgment claims because the claims did not fall within the
scope of permissible declaratory judgment actions against
summary judgment response, Swanson argued that the Town was
not entitled to a no-evidence summary judgment because it
bore the burden of proof on establishing governmental
immunity. She also challenged the Town's traditional
grounds, arguing that genuine issues of material fact
precluded summary judgment.
trial court granted the Town's plea to the jurisdiction
as to Swanson's original claims and dismissed
Swanson's Whistleblower Act and Sabine Pilot
claims. The trial court denied the Town's summary
judgment motions. The Town then filed this interlocutory
appeal challenging the denial of its motions for summary
Challenges to the Trial Court's Jurisdiction
plaintiff has the burden of alleging facts that affirmatively
demonstrate that the trial court has subject-matter
jurisdiction. Heckman v. Williamson Cty., 369 S.W.3d
137, 150 (Tex. 2012). Because a governmental unit has
immunity from suit, a plaintiff asserting a claim against a
governmental unit must allege facts that affirmatively
demonstrate that the legislature has waived immunity for the
claims brought. Univ. of Tex. at Arlington v.
Williams, 455 S.W.3d 640, 643 (Tex. App.-Fort Worth
2013), aff'd, 459 S.W.3d 48 (Tex. 2015).
absence of subject-matter jurisdiction may be raised by a
plea to the jurisdiction or by a motion for summary judgment.
Bland I.S.D. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000). A motion or plea asserting governmental immunity
involves a question of law that we review de novo. Harris
County Hosp. Dist. v. Tomball Reg'l Hosp., 283
S.W.3d 838, 842 (Tex. 2009).
governmental entity challenges the plaintiff's pleadings
for failing to demonstrate jurisdiction, the court construes
the pleadings liberally, taking all factual assertions as
true and looking to the plaintiff's intent.
Heckman, 369 S.W.3d at 150. If the plaintiff's
pleadings affirmatively negate the existence of jurisdiction,
we must grant the plea to the jurisdiction. Id. 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 plaintiffs should be afforded the
opportunity to amend. Tex. Dep't of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004).
defendant governmental entity challenges the existence of
jurisdictional facts, a court must also consider the relevant
evidence necessary to resolve the jurisdictional issues
raised. Heckman, 369 S.W.3d at 150;
Miranda, 133 S.W.3d at 228. The governmental entity
has the burden to assert and support with evidence that the
trial court lacks subject matter jurisdiction.
Heckman, 369 S.W.3d at 150; Miranda, 133
S.W.3d at 228. We must grant the jurisdictional challenge if
the governmental entity presents undisputed evidence that
negates the existence of the court's jurisdiction.
Heckman, 369 S.W.3d at 150.
Swanson Did Not Raise Distinct TOMA Claims.
first issue, the Town contends that the trial court had no
jurisdiction over Swanson's TOMA claims. However, the
record before us is clear that in the trial court, the Town
raised traditional summary judgment grounds asserting its
entitlement to judgment on the merits of Swanson's
claims, rather than on jurisdictional, government immunity
grounds. See Cullum v. White, 399 S.W.3d 173, 188
(Tex. App.-San Antonio 2011, pet. denied) (noting appellate
courts generally do not have jurisdiction to hear the denial
of a motion for summary judgment). Further, while Swanson
asserted grounds for declaratory relief based on TOMA
violations, she did not assert a separate, standalone claim
under TOMA. Without a distinct TOMA claim being alleged by
Swanson against the Town, we must overrule the Town's
first issue. See Valley Baptist Med. Ctr. v.
Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) ("[C]ourts
have no jurisdiction to issue advisory opinions.");
accord Princeton Univ. v. Schmid, 455 U.S. 100, 102,
102 S.Ct. 867, 869 (1982) ("We do not sit to decide
hypothetical issues or to give advisory opinions").
However, to the extent the Town's arguments apply to its
challenges to Swanson's claim for declaratory relief
based on the Town's alleged TOMA violations, we consider
them below under our analysis of the Town's third issue.
Swanson's Declaratory Judgment Claims
third issue, the Town makes several arguments for why the
trial court should have dismissed Swanson's declaratory
judgment claims. First, the Town contends that Swanson does
not qualify for relief under the Uniform Declaratory
Judgments Act (UDJA). More specifically, the Town contends
that: (a) Swanson is not a person interested under a deed,
will, written contract, or other writings constituting a
contract; (b) Swanson is not a person whose rights, status,
or other legal relations are affected by a statute, municipal
ordinance, contract, or franchise, and she produced no
evidence that she fits in that category in response to its
no-evidence and traditional summary judgment motions; and (c)
Swanson does not seek a determination on any question of
construction or validity of an instrument, statute,
ordinance, contract, or franchise. Second, the Town argues
that to the extent Swanson seeks a declaration of rights
under a statute, the UDJA does not waive the Town's
governmental immunity for such a claim.
Town's second issue, it asserts that Swanson presented no
viable claim for relief under the "due course"
provision in article I, section 19 of the Texas Constitution.
It argues that: (a) Swanson has no evidence that she was
denied any right to confront her accusers and address the
Council before the February 12, 2014 meeting; (b) she had no
constitutional right to appeal the Council's termination
decision; and (c) she was provided with notice and an
opportunity to be heard. However, Swanson raised these
constitutional violations only as a basis for relief under
the UDJA. As with the Town's alleged TOMA violations,
Swanson simply did not allege separate, standalone
constitutional claims against the Town in her lawsuit. We
therefore overrule the Town's second issue but consider
the Town's arguments challenging the viability of her
constitutional claims as part of its third issue.
reasons set forth herein, we conclude that the Town has
immunity for some but not all of the declaratory relief
requested by Swanson.
The Trial Court Did Not Err by Denying the Town's
No-Evidence Summary Judgment Motion on Swanson's UDJA
Town argues that, because Swanson provided no evidence in
response to its no-evidence summary judgment motion, the
trial court erred by denying it a no-evidence summary
judgment as to Swanson's declaratory judgment claims.
This argument, however, severely mistakes Swanson's
burden in the trial court. Before Swanson had any burden to
produce jurisdictional evidence, the Town first had to
produce evidence negating jurisdiction. See Miranda,
133 S.W.3d at 228 (stating that for pleas to the jurisdiction
challenging the existence of jurisdictional facts, requiring
the state to meet the summary judgment standard of proof
protects plaintiffs "from having to 'put on their
case simply to establish jurisdiction'" and that a
plaintiff must come forward with evidence to raise a fact
question regarding the jurisdictional issue only "after
the state asserts and supports with evidence that the trial
court lacks subject matter jurisdiction" (citation
omitted)); see also Mission Consol. I.S.D. v.
Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (reiterating
that when challenging the existence of jurisdictional facts,
the defendant government entity carries the burden to meet
the summary judgment proof standard for its assertion that
the trial court lacks jurisdiction); City of El Paso v.
Collins, 483 S.W.3d 742, 755-56 (Tex. App.-El Paso 2016,
no pet.) (holding that a defendant government entity
"cannot simply deny the existence of
jurisdictional facts and force the plaintiffs to raise a fact
issue" and that before a plaintiff has any
burden to come forward with jurisdictional evidence, the
government entity must first come forward with sufficient
evidence to negate jurisdiction) (emphasis added); City
of Austin v. Rangel, 184 S.W.3d 377, 382 (Tex.
App.-Austin 2006, no pet.) (same).
a governmental entity, like the Town, has the burden to
negate the existence of jurisdictional facts before a
plaintiff has any burden to produce evidence raising a fact
question on jurisdiction, no-evidence summary judgment
motions may not be used by a governmental entity as a vehicle
to defeat jurisdiction or otherwise circumvent its burden to
disprove jurisdiction. See Arthur v. Uvalde Cty. Appr.
Dist., No. 04-14-00533-CV, 2015 WL 2405343, at *9 (Tex.
App.-San Antonio May 20, 2015) (mem. op.) ("Permitting
UCAD to challenge subject matter jurisdiction in a
no-evidence motion for summary judgment improperly shifts the
jurisdictional evidentiary burdens."); Thornton v.
Ne. Harris Cty. MUD, 447 S.W.3d 23, 40 (Tex.
App.-Houston [14th Dist.] 2014, pet. denied)
("Permitting MUD to challenge subject matter
jurisdiction in a no-evidence motion for summary judgment
improperly shifts the jurisdictional evidentiary
burdens-effectively requiring the Thorntons to fully marshal
their evidence simply to establish jurisdiction and
eliminating any burden on MUD as a governmental entity to
disprove jurisdiction."); cf. Green Tree Servicing,
LLC v. Woods, 388 S.W.3d 785, 793-94 (Tex. App.-Houston
[1st Dist.] 2012, no pet.) (holding that the defendant-not a
governmental entity-could not challenge standing through a
no-evidence motion because such a procedure would "allow
defendants an end run around the safeguards established by
the Texas Supreme Court").
reaching this holding, we recognize that this court has
affirmed the granting of no-evidence summary judgment for a
governmental entity on immunity grounds. City of Haltom
City v. Aurell, 380 S.W.3d 839 (Tex. App.- Fort Worth
2012, no pet.). That opinion is easily distinguishable,
however. In that opinion, the plaintiff did not question
whether a no-evidence motion is a proper vehicle for raising
immunity, and we did not consider the issue. Given the clear
language and direction from the Texas Supreme Court provided
in Miranda and Mission Consolidated, we
agree with our sister courts of appeals that a government
entity may not challenge subject matter jurisdiction in a
no-evidence summary judgment motion because doing so
improperly shifts the initial jurisdictional evidentiary
burden to the plaintiff. See Thornton, 447 S.W.3d at
40. We disapprove of our opinion in Aurell to the
extent it reads otherwise.
in its brief, the Town cites State v. Lueck, 290
S.W.3d 876, 881-84 (Tex. 2009), for the proposition that
Swanson, not the Town, had the initial burden to come forward
with evidence to support jurisdiction. Lueck does
not contradict our holding that the Town had the initial
burden to produce evidence negating jurisdiction. See
Lueck, 290 S.W.3d at 881-84 (addressing pleading
requirements with respect to jurisdiction); see also
Mission Consol. I.S.D., 372 S.W.3d at 637 (applying
Lueck to a claim under the Texas Commission on Human
Rights Act and stating that "[w]hile a plaintiff must
plead the elements of her statutory cause of action-here the
basic facts that make up the prima facie case- . . ., she
will only be required to submit evidence
if the defendant presents evidence negating
one of those basic facts" (emphasis added)). We
therefore disagree with the Town that Lueck required
Swanson to marshal evidence showing jurisdiction before the
Town met its own evidentiary burden. Simply put, a
governmental entity cannot file a no-evidence motion for
summary judgment on governmental immunity grounds to
altogether avoid the jurisdictional burden that it would have
to demonstrate when asserting a plea to the jurisdiction. To
hold otherwise would effectively turn Texas governmental
immunity jurisprudence on its head.
the trial court did not err by denying the Town's
no-evidence summary judgment motion challenging the
court's subject-matter jurisdiction to Swanson's
declaratory judgment claims. We overrule this part of the
Town's third issue.
TOMA Waives Immunity for Some of Swanson's UDJA
TOMA Authorizes Swanson to Seek a Declaration of Rights,