Court of Appeals of Texas, Ninth District, Beaumont
Submitted on June 24, 2019
Appeal from the 172nd District Court Jefferson County, Texas
Trial Cause No. E-200450
McKeithen, C.J., Kreger and Johnson, JJ.
Billy Fratus appeals the trial court's order granting
Appellee City of Beaumont's plea to the jurisdiction and
dismissing Fratus's claims with prejudice. We affirm.
lawsuit began in July 2017 when Fratus filed his original
petition against the City of Beaumont ("City")
seeking damages, declaratory relief, and injunctive relief
under the Texas Constitution and Chapter 21 of the Texas
Labor Code. Fratus's original petition and his first
amended petition alleged he was a Grade 4 District Fire Chief
with the City of Beaumont and asserted the following claims:
 There are two claims being presented by [Fratus],
 for which he seeks three forms of relief, to[-]wit:
declaratory; equitable/injunctive; and legal or make-whole
restoration of damage-done and attorney's fees.
 The first claim arises out of the City's violation of
the Texas Constitution, for which [Fratus] seeks declaratory
relief and attorney's fees, and injunctive relief.
 The second claim arises out of [the] City's violation
of the Texas Labor Code, Chapter 21, for which [Fratus] seeks
make-whole restoration of damage-done pursuant to and in the
amount stated in TRCP 47(c)(4).
petition alleged that Fratus was excluded from certain
management meetings; that Beaumont Fire Chief Huff did not
like that Fratus was the only Hispanic among all the fire
chiefs; that Chief Huff had a "dismissive attitude"
toward Fratus and excluded him from certain discretionary
"perks"; that Chief Huff tried to fire Fratus; that
Chief Huff was angry when Fratus was promoted; that Chief
Huff "falsely accused [Fratus] of insurance fraud"
over equipment that was donated to the department; that Chief
Huff fired him while he was on disability; and that the City
sent Fratus to a chiropractor chosen by the City during his
disability and thereby "interfered with [Fratus's]
relationship with his physician[.]" Fratus also alleged
that the City retaliated against him for speaking out against
what he believed was Chief Huff's sexual harassment of
another employee, and for disagreeing with Chief Huff's
firing of one employee and her support of another former
employee. Fratus's petition alleged that he appealed his
termination and also filed a charge of discrimination and
received a "right-to-sue" letter from the Texas
Workforce Commission. When Fratus filed his petition, he was
employed with the Beaumont Fire Department. Fratus also
alleged that the City violated the Texas Open Meetings Act
(TOMA) and as a result, the Collective Bargaining Agreement
is invalid. Fratus's petition seeks:
Declaratory and injunctive relief and appropriate legal fees
and costs of court for the Constitutional violations; a
judgment awarding [Fratus] actual damages against the City; a
mandatory temporary and permanent injunction proscribing the
City and Huff from violating [Fratus's] Constitutional
rights; and any other relief whether at law or in equity to
which Plaintiff may show himself entitled.
City filed a plea to the jurisdiction claiming governmental
immunity and seeking dismissal of Fratus's claims. The
City's plea included the following arguments: Fratus may
not bring a claim for declaratory relief based on harm that
has already occurred; Fratus has not made a prima facie claim
for retaliation for protected speech because his speech was
not protected and he has not pleaded he suffered an adverse
employment action as a result of his speech; Fratus's
claim of racial discrimination fails because he has not shown
he was treated differently from other persons similarly
situated; and Fratus brought no ultra vires claims.
filed a response to the City's plea and argued that he
had sufficiently alleged that he had experienced
discriminatory employment practices and that he was
terminated. He argued that his protected-speech claim related
to speech about racial discrimination and harassment, which
he argued "is related to a public ...