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Texas Association of County Employees v. Wolff

Court of Appeals of Texas, Fourth District, San Antonio

July 17, 2019

TEXAS ASSOCIATION OF COUNTY EMPLOYEES, Appellant
v.
Nelson WOLFF, County Judge of Bexar County; Bexar County Commissioners Justin Rodriguez, [1] Sergio "Chico" Rodriguez, Tommy Calvert, and Kevin Wolff; and Bexar County, Appellees

          From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2018-CI-14932 Honorable John D. Gabriel Jr., Judge Presiding

          Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice.

          OPINION

          Luz Elena D. Chapa, Justice.

         This appeal concerns ongoing efforts by Bexar County's deputy constables to engage in collective bargaining with Bexar County.[2] The crux of the parties' dispute is whether, under chapter 174 of the Texas Local Government Code, "The Fire and Police Employee Relations Act," a county's deputy constables and deputy sheriffs are officers of the same "police department" or different "police departments." However, the underlying suit filed in the trial court does not seek a declaration of the parties' rights and responsibilities under the Act to resolve this specific dispute and, consequently for this appeal, resolving this dispute is unnecessary to dispose of the specific legal issues now pending before this court.

         In the underlying suit filed in the trial court, the Texas Association of County Employees (TACE), an organization whose members include deputy constables, sued Bexar County seeking a money judgment and a court order requiring Bexar County to "immediately begin to engage in collective[] bargaining." The evidence before us establishes that, even if TACE is correct that under the Act, deputy constables and deputy sheriffs are separate "police departments" and are entitled to collectively bargain with the county independently, TACE failed to follow procedures set out in the Act to be recognized as the exclusive bargaining agent for the county's deputy constables' "police department." Because TACE failed to follow these procedures, the dispute about whether a county's deputy constables and deputy sheriffs are in separate "police departments" is immaterial, and we must affirm the trial court's order granting Bexar County's plea to the jurisdiction.

         Background

         In 2009, before the underlying suit was filed, the Deputy Constables Association of Bexar County (DCABC) requested that Bexar County engage in collective bargaining. Although the request was placed as an item on the Commissioners Court agenda, no action was taken on the request. In 2012, DCABC filed suit seeking a declaratory judgment and writ of mandamus to establish its right to engage in collective bargaining with the county on behalf of the county's deputy constables. The case was appealed to this court, which held the Act did not give deputy constables the right to compel the county to engage in collective bargaining. In Jefferson County v. Jefferson County Constables Association, the Supreme Court of Texas disapproved of this court's holding. See 546 S.W.3d 661 (Tex. 2018) (abrogating Wolff v. Deputy Constables Ass'n of Bexar Cty., 441 S.W.3d 362 (Tex. App.-San Antonio 2013, no pet.)).

         At some point, a deputy constable and former executive board member of DCABC, Andy Lopez, became a board member of and spokesperson for TACE. Before obtaining written authorization forms to represent any of the county's deputy constables as their exclusive bargaining agent, TACE sent a June 12, 2018 letter to the Bexar County commissioners formally requesting that TACE be recognized as the deputy constables' exclusive bargaining agent under the Act. Although TACE's request was placed as an item on the Commissioners Court agenda, no action was taken on the request.

         On August 9, 2018, still before obtaining written authorization forms to represent any of the county's deputy constables as their exclusive bargaining agent, TACE sued Bexar County and its officials, alleging they wrongfully refused to engage in collective bargaining with TACE on behalf of the county's deputy constables. TACE alleged it had requested collective bargaining in 2009 and was "organized under a different name," suggesting TACE was DCABC. Several weeks later, DCABC president, Salvador J. Rodriguez, sent a letter to Bexar County, stating DCABC had "no part or interest in this lawsuit." The letter expressed concern about possible confusion and stated DCABC's "wishes to continually work with [the county] in a harmonious and cooperative manner."

         Bexar County, through its commissioners, approved a motion on September 11, 2018, "establishing that there exists a question . . . as to the identity of the exclusive majority bargaining agent" for the county's law enforcement officers. The motion requested "that the parties tender a certified election outcome" to determine the identity of the deputy constables' exclusive bargaining agent. The agenda coordination form, which contained background information about the matter, noted TACE was operating as DCABC, but "another group operating under the same name . . . provided notice that it is not associated with . . . TACE." The form also stated the county had recognized another association, the Deputy Sheriffs Association of Bexar County, as the bargaining agent for deputy sheriffs. Like deputy constables, deputy sheriffs are considered the county's "police officers" under the supreme court's decision in Jefferson County Constables Association, 546 S.W.3d at 668-72.

         On September 20, 2018, Bexar County filed an answer and plea in abatement, raising jurisdictional and other defenses. Bexar County also argued TACE had not alleged, and could not demonstrate, that it had been selected as the majority representative to be the deputy constables' exclusive bargaining agent, and failed to timely request collective bargaining before the date on which the county's fiscal operating budget ended. In September and October 2018-after sending its June 12, 2018 request for collective bargaining and after suing Bexar County-TACE began collecting forms executed by deputy constables expressly authorizing TACE to act as their exclusive bargaining agent. Having obtained authorizations from 31 of Bexar County's 67 deputy constables, TACE sent Bexar County a second request for collective bargaining on November 5, 2018, after the beginning of the county's fiscal operating budget year. On November 9, 2018, in response to a discovery request, TACE admitted it had not pursued a fair election under the Act to establish it is the deputy constables' majority representative.

         Bexar County filed an original plea to the jurisdiction on November 21, 2018, arguing TACE lacked standing to file suit and could not establish a waiver of the county's governmental immunity from suit. Bexar County contended TACE provided untimely notice of its request for collective bargaining; TACE was not selected as a majority representative who could act as the deputy constables' exclusive bargaining agent; and Bexar County never "refused" to engage in collective bargaining because it was seeking to resolve which association was the proper bargaining agent by a fair election under the Act.

         The plea was set for a November 29, 2018 hearing, but was reset for December 17, 2018. TACE filed a response to Bexar County's plea and a second amended petition, including allegations about several of the above-described occurrences that transpired after TACE filed its lawsuit. In its response to the plea, TACE produced authorization forms from five additional deputy constables executed after TACE had sent its second request for collective bargaining on November 5, 2018. It was not until December 6, 2018, that TACE had obtained authorizations from over half of the county's deputy constables. Bexar County filed an amended plea to the jurisdiction on December 14, 2018, in response to TACE's amended petition. After hearing arguments and taking the matter under advisement, the trial court granted the amended plea. TACE timely appealed to this court.

         Standard ...


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