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Town of Shady Shores v. Swanson

Supreme Court of Texas

December 13, 2019

Town of Shady Shores, Petitioner,
Sarah Swanson, Respondent

          Argued September 24, 2019

          On Petition for Review from the Court of Appeals for the Second District of Texas



         We are presented with two issues in this case: (1) whether a no-evidence motion for summary judgment is a proper procedural vehicle to defeat jurisdiction on the ground of governmental immunity; and (2) whether the Texas Open Meetings Act waives governmental immunity with respect to declaratory judgment claims. The court of appeals answered no to the first question and yes, at least in part, to the second. We disagree on both counts. Because only a portion of the court of appeals' judgment is challenged here, we reverse the court's judgment in part. We remand the case to the court of appeals to address remaining issues in light of this opinion.

         I. Background[1]

         This suit stems from an employment dispute between the Town of Shady Shores (the Town) and its former town secretary, Sarah Swanson. During a February 27, 2014 town-council meeting, the council voted to terminate Swanson's employment. Before voting, the council convened in executive session; the meeting agenda reflected that the council "may hold a closed meeting" to deliberate Swanson's continued employment and obtain confidential legal advice regarding the same matter.

         Swanson sued the Town, initially alleging that she was wrongfully terminated in retaliation for (1) refusing to destroy a recording of a Town investment-committee meeting, (2) reporting that members of the committee had destroyed the recording after she refused to do so, and (3) reporting violations of the Texas Open Meetings Act and Texas Public Information Act. In her original petition, she asserted claims under the Whistleblower Act and Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 799 (Tex. 1985).[2] She sought past and future lost wages and benefits as well as noneconomic damages.

         The Town filed a plea to the jurisdiction, arguing it was entitled to governmental immunity on both claims. Swanson then amended her petition to add factual allegations supporting her existing claims and to add new claims, including (1) claims for a declaratory judgment that the termination of her employment violated the Open Meetings Act as well as the Texas Constitution's due course of law provision and (2) a claim that she was terminated in violation of her free speech rights. She sought relief including a declaratory judgment that her removal as town secretary was void under the Open Meetings Act; an order requiring the Town to make available to the public any agendas or recordings of past meetings required to be open; reinstatement to her position as town secretary; payment of past wages; a permanent injunction requiring the recording of all council deliberations at regularly scheduled meetings; and attorney's fees.[3]

         In response to Swanson's amended petition, the Town amended its plea to the jurisdiction to address Swanson's new allegations underlying her Whistleblower Act and Sabine Pilot claims. The Town also filed traditional and no-evidence motions for summary judgment on all claims. In both motions, the Town argued it was entitled to governmental immunity with respect to Swanson's Whistleblower Act, Sabine Pilot, and declaratory judgment claims. It also argued that it was entitled to summary judgment on the merits of Swanson's Open Meetings Act and constitutional claims.

         The trial court granted the Town's plea to the jurisdiction and dismissed the Whistleblower Act and Sabine Pilot claims. In separate orders, the trial court denied the Town's traditional and no-evidence motions for summary judgment. The Town appealed the summary judgment orders, arguing in the court of appeals that Swanson had not established a waiver of the Town's governmental immunity as to her claims under the Open Meetings Act and the Texas Constitution because she had failed to present evidence supporting one or more elements of those claims.[4] The Town also argued that neither the Open Meetings Act nor the Texas Constitution waives immunity from a claim for money damages. Finally, the Town asserted that Swanson's declaratory judgment claims did not fall within the limited waiver of immunity contained in the Uniform Declaratory Judgments Act (UDJA).

         The court of appeals affirmed in part and reversed in part. 544 S.W.3d 426, 448-49 (Tex. App.-Fort Worth 2018). First, the court noted sua sponte that Swanson "did not assert a separate, standalone claim under [the Open Meetings Act];" rather, she asserted only "grounds for declaratory relief based on" violations of that Act. Id. at 434.[5] The court of appeals further held that the trial court correctly denied the Town's no-evidence motion for summary judgment, which was premised on the Town's immunity from suit, because a no-evidence motion for summary judgment is not a proper procedural vehicle to defeat jurisdiction. Id. at 435, 448. The court of appeals thus addressed the Town's assertion of immunity only by reviewing the pleadings and evidence under the traditional summary judgment standard. Id. at 438, 446-48.

         As to Swanson's declaratory judgment claims based on violations of the Open Meetings Act, the court of appeals recognized that the UDJA does not provide a general waiver of immunity but held that the Open Meetings Act provides an independent waiver for "some of what Swanson seeks under the UDJA." Id. at 436-37. Specifically, the court held that the Act waived immunity with respect to Swanson's request for a declaration that the Town's termination of her employment was void, her request for injunctive relief to make meeting agendas and recordings available to the public, and her request for attorney's fees. Id. The court further held that the Town's jurisdictional evidence did not "negate" the existence of jurisdictional facts underlying those claims and that traditional summary judgment on immunity grounds was thus properly denied. Id. at 438-39. However, the court of appeals held that the Open Meetings Act did not waive the Town's immunity from Swanson's claim for back pay. Id. at 438. Finally, the court held that Swanson failed to allege viable constitutional claims and that the Town's immunity was not waived as to either Swanson's UDJA claim that was premised on violations of the Texas Constitution or her free speech claim. Id. at 440-48.

         The court of appeals thus dismissed for lack of jurisdiction Swanson's UDJA claim for back pay, her UDJA claim based on violations of the Texas Constitution, and her free speech claim. We will not review that portion of the court of appeals' judgment, as Swanson did not file a petition for review. See Tex. R. App. P. 53.1 ("A party who seeks to alter the court of appeals' judgment must file a petition for review."). The Town did file a petition for review, which we granted.

         II. Appellate Jurisdiction

         We begin with Swanson's challenges to our jurisdiction over this interlocutory appeal. The Town appealed under Texas Civil Practice and Remedies Code section 51.014(a)(8), which authorizes an interlocutory appeal from an order that grants or denies a plea to the jurisdiction. Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). Swanson argues that section 51.014(a)(8) did not confer jurisdiction on the court of appeals because the appeal was taken from an order denying summary judgment on the merits. However, the Town argued in its summary judgment motions that it was immune from suit on Swanson's declaratory judgment claims. And section 51.014(a)(8) allows an interlocutory appeal to be taken when "the trial court denies the governmental entity's claim of no jurisdiction, whether it has been asserted by a plea to the jurisdiction, a motion for summary judgment, or otherwise." Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); see also Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (explaining that immunity from suit deprives the courts of jurisdiction over pending claims). Accordingly, the Town properly took an interlocutory appeal from the orders denying its assertion of immunity.[6]

         Swanson also asserted at oral argument that, even if section 51.014(a)(8) conferred jurisdiction on the court of appeals, this Court nevertheless lacks such jurisdiction. Under former section 22.225 of the Government Code, on which Swanson relies, the court of appeals' judgment on an interlocutory appeal is generally final, although we have authority to consider the appeal if a conflict exists among the courts of appeals on a material issue of law in the case. Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws 1720, 1731 (codified at Tex. Gov't Code § 22.225(c)), repealed by Act of May 19, 2017, 85th Leg., R.S., ch. 150, § 4, 2017 Tex. Gen. Laws 291, 292. By contrast, under the current version of the Government Code, this Court has broad jurisdiction over "an appealable order or judgment of the trial court if the court determines that the appeal presents a question of law that is important to the jurisprudence of the state." Tex. Gov't Code § 22.001(a). Assuming Swanson is correct that the prior version applies here, [7] she is nevertheless incorrect about its effect on our jurisdiction. The court of appeals' holding in this case that the Open Meetings Act waives immunity for declaratory judgment claims under the UDJA directly conflicts with the Third Court of Appeals' decision in City of New Braunfels v. Carowest Land, Ltd., 549 S.W.3d 163, 172-73 (Tex. App.-Austin 2017, pet. pending). In light of that conflict, we have jurisdiction over the Town's petition.

         III. Discussion

         A. Asserting Immunity in No-Evidence Motion for Summary Judgment

         On the substantive issues presented, we first address whether a no-evidence summary judgment motion may be used to defeat jurisdiction on the basis of governmental immunity. Unlike the court of appeals, we hold that it can.

         A plaintiff has the burden to affirmatively demonstrate the trial court's jurisdiction. Heckman v. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012). That burden encompasses the burden of establishing a waiver of sovereign immunity in suits against the government. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). When a defendant challenges jurisdiction, a court "is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). That is the case even when "jurisdiction and the merits intertwine," such as when "a statutory violation is necessary to establish an immunity waiver." Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 783 (Tex. 2018) (citing Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635-36 (Tex. 2012)); see also Tex. Dep't of ...

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