MACK KIDD, Justice.
This is an appeal of a trial-court order granting appellees
This suit arises out of the complaints of former employees of the Texas Workforce Commission (the "Commission") who lost their jobs as a result of the Commission's decision to privatize several of the State's workforce-development programs. The
In 1997, the Commission decided to overhaul its structure by transferring to the private sector the responsibility of administering several of the State's workforce-development programs. Specifically, it chose to shift all authority over the administration of these programs to certain certified local workforce-development boards.
The Texas State Employees Union (the "Union") then filed suit against the Commission on behalf of the terminated employees, all of whom were members of the Union, complaining that the Commission had unlawfully granted public property— namely office space, computer equipment, and office supplies—to private entities in violation of the Texas Constitution. See Tex. Const. art. III, § 51; art. VIII, § 3; art. XVI, § 6(a). The Commission responded by filing a special exception and a plea to the jurisdiction, contending that the cause of action was barred by the doctrine of sovereign immunity and, furthermore, that appellants lacked standing to sue. Several amended petitions followed, as did further answers and pleas to the jurisdiction. Following the filing of appellants' fourth amended petition, the trial court dismissed the Union as a party, finding that the Union lacked standing to bring suit on behalf of the employees. Appellants thereafter amended their pleadings to substitute four terminated employees in place of the Union.
By the time appellants filed their sixth and final amended petition, the suit had been expanded to include three causes of action; appellants had also added as defendants the Council on Workforce & Economic Competitiveness, the Governor, and the Gulf Coast Local Workforce Development Board ("Gulf Coast") and the Coastal Bend Workforce Development Board ("Coastal Bend") (collectively, the "local development boards").
PLEA TO THE JURISDICTION
A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of a specific cause of action. See Fountain Parkway, Ltd. v. Tarrant Appraisal Dist., 920 S.W.2d 799, 803 (Tex.App.-Fort Worth 1996, writ denied); Dolenz v. Texas State Bd. of Med. Exam'rs, 899 S.W.2d 809, 811 (Tex.App.-Austin 1995, no writ). The plea alleges that there are incurable jurisdictional defects visible on the face of the plaintiff's pleadings, taking the pleadings' allegations as true. See Bybee v. Fireman's Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910, 917 (1960); Firemen's Ins. Co. v. Board of Regents of the Univ. of Tex. Sys., 909 S.W.2d 540, 541 (Tex.App.-Austin 1995, writ denied). The truth of the plaintiff's allegations is at issue only if the defendant pleads and proves that the allegations were fraudulently made to confer jurisdiction on the court. See Curbo v. State, 998 S.W.2d 337, 341 (Tex.App.-Austin 1999, no pet.); Flowers v. Lavaca County Appraisal Dist., 766 S.W.2d 825, 827 (Tex. App.-Corpus Christi 1989, writ denied); cf. Bernard Hanyard Enter. v. McBeath, 663 S.W.2d 639, 642 (Tex.App.-Austin 1983, writ ref'd n.r.e.). Therefore, unless fraud is pleaded and proven, dismissing a cause of action for lack of subject-matter jurisdiction is proper only when incurable jurisdictional defects are shown on the face of plaintiff's pleadings, thus rendering it impossible for the plaintiff's petition to confer jurisdiction on the trial court. See Curbo, 998 S.W.2d at 341; Dolenz, 899 S.W.2d at 811; Flowers, 766 S.W.2d at 827.
When reviewing a trial-court order dismissing a cause for want of jurisdiction, we are to "construe the pleadings in favor of the plaintiff and look to the pleader's intent." Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); Pearce v. City of Round Rock, 992 S.W.2d 668, 671 (Tex.App.-Austin 1999, pet. denied). Because the question of subject-matter jurisdiction is a legal question, we review de novo a trial court's ruling on a plea to the jurisdiction. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998); Firemen's Ins. Co., 909 S.W.2d at 542.
We first address appellants' claim for wrongful termination of employment and decide whether the doctrine of sovereign immunity deprived the trial court of jurisdiction to entertain this claim. Rather than seeking dismissal of this claim on the basis of sovereign immunity through a motion for summary judgment, the Commission sought a dismissal in a plea to the jurisdiction. We observe that, had the bar of sovereign immunity been presented in conjunction with a motion for summary judgment, both parties would have had the opportunity to present summary-judgment evidence, such as the written employment policies that appellants allege establish their right to continued employment. See Tex.R. Civ. P. 166a. The trial court could then have made an informed decision on the merits. Here, the Commission instead chose to make this challenge through a plea to the jurisdiction. The trial court was thus obliged, as are we, to take the pleadings as true and construe the pleadings liberally in favor of conferring jurisdiction. See Texas Air Control Bd., 852 S.W.2d at 446; Curbo, 998 S.W.2d at 341.
In support of its plea to the jurisdiction, the Commission did not allege that these pleadings were fraudulently made for the purpose of conferring jurisdiction upon the trial court. Nor did it specially except to the claim on grounds that the pleadings were deficient.
The Commission is correct that Texas is an "employment-at-will" state where employment for an indefinite term may be terminated at will and without cause by either party. See Winters v. Houston Chronicle Publ'g. Co., 795 S.W.2d 723, 724 (Tex.1990); East Line & Red River R.R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 102 (1888); Cote v. Rivera, 894 S.W.2d 536, 539 (Tex.App.-Austin 1995, no writ). Nevertheless, written material such as an employee handbook or personnel manual may in some circumstances alter an employee's at-will status if the material contains language that specifically and expressly limits the relationship and curtails the employer's right to terminate the employee. See Morgan v. Jack Brown Cleaners, Inc., 764 S.W.2d 825, 826 (Tex. App.-Austin 1989, writ denied); Benoit v. Polysar Gulf Coast, Inc., 728 S.W.2d 403, 406 (Tex.App.-Beaumont 1987, writ ref'd n.r.e.).
Here, appellants' pleadings allege that by its written policies, the Commission altered the employment relationship so as to create a "protected expectancy of continued employment." Taking these pleadings as true and construing them liberally in favor of conferring jurisdiction, we perceive no basis for the trial court's finding that sovereign immunity bars appellants' claim.
It is well settled that no waiver of sovereign immunity is necessary before one may sue the State for the taking of a vested property right without due course of law. See Stone v. Texas Liquor Control Bd., 417 S.W.2d 385, 385-86 (Tex.1967); Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 118 (Tex.App.-Austin 1997, writ denied); Ho v. University of Tex. at Arlington, 984 S.W.2d 672, 682 (Tex.App.-Amarillo 1998, pet.denied). Assuming, as we must, that the Commission's written policies did create a protected
In ruling on the Commission's plea to the jurisdiction, the trial court was obliged to accept appellants' pleadings as true, construe them liberally in appellants' favor, and dismiss them only if they affirmatively established that the trial court lacked jurisdiction to hear the complaint. See Texas Air Control Bd., 852 S.W.2d at 446; Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex.1989); Bush v. Texas Dep't of Protective & Reg. Servs., 983 S.W.2d 366, 368 (Tex.App.-Fort Worth 1998, pet. denied). Taking appellants' pleadings as true, we find no basis upon which to conclude that the court lacked jurisdiction to hear their claim for wrongful termination. Consequently, we hold that the trial court erred in dismissing appellants' claim for lack of jurisdiction.
We do not, of course, purport to speak to the merits of appellants' allegations, which we must take as true on appeal from a dismissal order. We offer no opinion on whether sovereign immunity may in fact ultimately bar appellants' claim. This will depend upon the facts as they are developed. We merely hold that in light of appellants' pleadings and the liberal test that must be applied in ruling on pleas to the jurisdiction, the trial court erred in dismissing these claims on this basis. Accordingly, we sustain appellants' issue regarding their wrongful-termination claim.
REMAINING CAUSES OF ACTION
Although our sustaining of appellants' wrongful-termination issue necessitates a reversal and remand of this entire cause, we nevertheless believe it is prudent and serves the interests of judicial economy to address briefly the two remaining causes of action that the court also dismissed for lack of jurisdiction, as well as the dismissal of the Union for lack of standing.
First, we believe that the trial court's dismissal of appellants' third-party beneficiary claim also was in error. Appellants alleged that they were the intended beneficiaries of the contracts between the Commission and the local development boards and that they were thus entitled to sue Gulf Coast and Coastal Bend for the alleged breach. In dismissing this claim for lack of jurisdiction, the trial court cited as its basis both sovereign immunity and appellants' lack of standing. It is well settled that a person who is not a party to a contract may nevertheless have standing to enforce the contract if it was made for that person's benefit. See Paragon Sales Co., Inc. v. New Hampshire Ins. Co., 774 S.W.2d 659, 661 (Tex.1989); Knox v. Ball, 144 Tex. 402, 191 S.W.2d 17, 23-24 (1945); Barnes v. Wendy's Int'l, Inc., 857 S.W.2d 728, 730-31 (Tex.App.-Houston [14th Dist.] 1993, no writ); Gonzalez v. City of Mission, 620 S.W.2d 918, 922 (Tex.App.-Corpus Christi 1981, no writ). Because we must take the allegations in appellants' pleadings as true, we assume appellants are the intended beneficiaries of the contracts and that as such, they stand in the
Assuming, as we have already based upon the pleadings, that appellants enjoyed a vested property right in their jobs and, further, that appellants were the intended beneficiaries of the contracts between the Commission and the local development boards, we see no basis on which to conclude that the trial court lacked jurisdiction to hear this claim. Rather than a jurisdictional question that can be determined on the pleadings alone, the parties' disagreement over the nature of appellants' rights, if any, as third-party beneficiaries of the contracts is a dispute that must be decided on the merits. Thus, the trial court possessed jurisdiction to hear this claim.
In their final cause of action, appellants sought to enjoin the Commission and its executive director from unlawfully expending public funds by transferring state property to the local development boards without requiring that the property be used solely for state, rather than private, purposes. Appellants alleged that this transfer violated the Texas Constitution insofar as it permitted the private entities to employ state property for private use. See Tex. Const art. III, § 51 ("The Legislature shall have no power to make any grant ... of public moneys to any individual ...."); art. VIII, § 3 ("Taxes shall be levied and collected by general laws and for public purposes only."); art. XVI, § 6(a) ("No appropriation for private or individual purposes shall be made, unless authorized by this Constitution.").
In arguing for dismissal, the Commission and its executive director contended that only the state attorney general has standing to institute legal action to redress alleged mismanagement of state property under section 403.276 of the Government Code. See Tex. Gov't Code Ann. § 403.276(c), (d) (West 1998). This argument, however, does not end our inquiry. Appellants do not seek redress under the statutory provision the Commission relies upon. Rather, as both taxpayers and state employees, they seek to enjoin the Commission from expending funds in violation of the Texas Constitution. See Tex. Const. art. III, § 51; art. VIII, § 3; art. XVI, § 6(a). Although taxpayers generally cannot maintain suits for the recovery of public funds already expended, they do have standing to bring a suit in equity to enjoin prospective illegal expenditures of public funds. See Osborne v. Keith, 142 Tex. 262, 177 S.W.2d 198, 200 (1944); Zimmelman v. Harris County, 819 S.W.2d 178, 182 (Tex.App.-Houston [1st Dist.] 1991, no writ); Navarro Auto-Park, Inc. v. City of San Antonio, 574 S.W.2d 582, 583 (Tex.Civ.App.-San Antonio 1978, writ ref'd n.r.e.); Kordus v. City of Garland, 561 S.W.2d 260, 262 (Tex.Civ. App.-Tyler 1978, writ ref'd n.r.e.); First Nat'l Bank v. Prudential Ins. Co., 551 S.W.2d 112, 113 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ ref'd n.r.e.). To establish standing in such a suit, the plaintiff must plead that: (1) he or she is a taxpayer; (2) there exists an agreement under which public funds are to be expended in the future; and (3) the agreement or contract violates the Constitution or is otherwise illegal. See Osborne, 177 S.W.2d at 200; Kordus, 561 S.W.2d at 262. Here, appellants, as taxpayers and state
Additionally, the Commission is incorrect in its last argument that the doctrine of sovereign immunity precludes appellants' suit to enjoin the unlawful expenditure of state funds. Suits challenging an agency's action as being outside the scope of its delegated authority are not suits against the State requiring legislative permission to sue. See Texas Dep't of Pub. Safety v. Moore, 985 S.W.2d 149, 154 (Tex.App.-Austin 1998, no pet.); Public Util. Comm'n v. City of Austin, 728 S.W.2d 907, 911 (Tex.App.-Austin 1987, writ ref'd n.r.e.). Furthermore, suits to enforce state constitutional rights do not require legislative waiver of sovereign immunity. See Brazosport Sav. & Loan Ass'n v. American Sav. & Loan Ass'n, 161 Tex. 543, 342 S.W.2d 747, 750 (1961); Lopez v. Public Util. Comm'n, 816 S.W.2d 776, 783 (Tex.App.-Austin 1991, writ denied). Because appellants sought to enjoin the Commission from acting outside of its constitutional and statutory authority by making unrestricted transfers of state property to private entities, no explicit waiver by the State was necessary. Consequently, sovereign immunity does not deprive the trial court of jurisdiction over this claim.
Finally, the trial court dismissed the Union on the basis of a lack of standing. Just as the individual employees have standing to sue, we conclude that the Union has standing to sue on behalf of its members, those same employees. An association has standing to sue on behalf of its members when: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. See Texas Air Control Bd., 852 S.W.2d at 447; Birnbaum v. Alliance of Am. Insurers, 994 S.W.2d 766, 780 (Tex. App.-Austin 1999, pet. filed). We have already concluded that the Union's members have standing to sue in their own right. We also consider the Union's goal of enjoining any further unconstitutional transfers of state property to be directly related to the Union's stated purpose of protecting the interests of both taxpayers and state employees. Finally, the nature of the claim and the equitable relief requested do not require the participation of the Union's members on an individual basis. See Texas Air Control Bd., 852 S.W.2d at 448 (where an association "seeks only prospective relief, raises only issues of law, and need not prove the individual circumstances of its members to obtain that relief," third element of associational standing test is met). Thus, the trial court erred in dismissing the Union as a plaintiff for lack of standing.
Having sustained appellants' issues challenging the dismissal of their claims, we reverse the trial court's order granting the Commission's plea to the jurisdiction and remand this cause for further proceedings not inconsistent with this opinion.