This is an interlocutory appeal from the denial of a plea to the jurisdiction.
Subsequently, appellees filed their first amended petition. To this, the City filed special exceptions, asserting that, as appellees were alleging that the City was violating its own ordinance, they were attempting to raise a claim of negligence per se and had failed to properly plead such a claim and thus failed to give the City reasonable notice of the claims against it. The City did not obtain a ruling on its second special exceptions.
The City also filed a plea to the jurisdiction in response to the first amended original petition, asserting that: appellees failed to exhaust their administrative remedies; appellees were required to file suit in the district court; and the City was entitled to sovereign immunity. On the day of the trial, which was also the date of the hearing on the plea to the jurisdiction, but prior to the actual hearing, the appellees amended their petition and filed their "Third Amended Original Petition,"
The trial court, after hearing arguments from both sides, denied the plea to the jurisdiction and this appeal ensued.
On appeal, the City complains only of the exhaustion of administrative remedies argument urged in its plea below. In particular, the City asserts that the trial court lacks subject matter jurisdiction over the appellees' claims because the pleadings do not and cannot by further amendment satisfy the requirement that appellees exhaust administrative remedies under chapter 143 of the Texas Local Government Code. More specifically, the City claims that the appellees should have filed a request with the Civil Service Commission for an investigation, hearing, and final determination of their complaint and that "ultimately" their claims must be heard in a state district court and not a county court.
Standard of Review
This appeal is strictly limited to our review of the trial court's ruling on the plea to the jurisdiction. Tex.Civ.Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2002). A plea to the jurisdiction is the vehicle by which a party contests the trial court's authority to determine the subject matter of the cause of action. State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.-Corpus Christi 1989, writ denied). A governmental unit may properly challenge a trial court's subject matter jurisdiction by filing a plea to the jurisdiction since absent the state's consent to suit a trial court has no subject matter jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex.1999).
The plaintiff bears the burden of alleging facts affirmatively demonstrating the trial court's jurisdiction to hear a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 676 (Tex.App.-Corpus Christi 2001, no pet.). A trial court must not weigh the merits of the case, but instead consider only the pleadings and evidence pertinent to the jurisdictional question. County of Cameron v. Brown, 80 S.W.3d 549, 555-556 (Tex. 2002)
In the present case, the City asserts that the trial court lacks subject matter jurisdiction over appellees' claims because the pleadings do not, and cannot by further amendment, satisfy the requirement to exhaust administrative remedies under chapter 143 of the Texas Local Government Code. Appellees claim that the trial court properly denied the plea to the jurisdiction because their declaratory judgment action is the proper action to determine the validity of an ordinance and the Civil Service Commission has no authority to interpret statutes and ordinances.
We must first examine the appellees' pleading and the nature of the claim raised and relief sought.
The Third Amended Original Petition
The City filed its plea to the jurisdiction against appellees' first amended petition. That petition is not in the record before us. However, prior to the hearing on the plea to the jurisdiction, appellees filed their "Third Amended Original Petition." During the hearing, the arguments focused on that petition and, at the conclusion of the hearing, the trial court granted leave for appellees to file the petition. Thus we will examine the claim made in the appellees' third amended petition.
In the third amended petition, appellees asserted that they were seeking declaratory relief and judgment, alleging that, by enacting ordinance number 2119 effective October 1, 1995, the City established new
Exhaustion of Administrative Remedies
The City argues that appellees are not seeking a declaratory judgment but are, rather, seeking review of alleged violations of the Firefighters and Police Officers Civil Service Act (hereinafter "Civil Service Act"). Tex.Loc. Gov't Code Ann. §§ 143.001-.363 (Vernon 1999 & Vernon Supp.2002). It argues that appellees' claim that the promulgation of ordinance 2143 necessarily resulted in a de facto demotion, falls directly within the purview of the Civil Service Act, and appellees thus must have first sought the administrative remedies related to demotions provided in that act. See Tex.Loc. Gov't Code Ann. §§ 143.054, 143.010, 143.015 (Vernon 1999 & Supp.2002) (dealing with demotions, commission appeal procedures and appellate review of commission decisions, respectively).
We disagree. The petition makes no reference to any civil service commission decision or in any way attempts to appeal any such decision. Nor does it complain of a demotion granted in violation of the Civil Service Act. Indeed, no violations of that act are alleged. The administrative remedies requirements of the Civil Service Act are not prerequisites to a declaratory judgment action regarding the construction or validity of a city ordinance. See Garcia-Marroquin v. Nueces County Bail Bond Bd., 1 S.W.3d 366, 378 (Tex.App.-Corpus Christi 1999, no pet.) (exhaustion of administrative remedies not required where action seeks declaratory
However, this determination does not answer the question of whether the trial court had jurisdiction to hear this suit nor does it satisfy our obligation on appeal. Appellant claims that a request for declaratory judgment was not proper as it was a mere subterfuge for avoiding the administrative remedies requirements mandated by the Civil Service Act. However, appellant does not claim on appeal, nor did it claim or prove below, that appellees have asserted fraudulent facts or pled facts in bad faith. See Flores, 39 S.W.3d at 676. The question before us is not whether the pleading for a declaratory judgment was a subterfuge to avoid compliance with the Civil Service Act but rather whether the plaintiffs' pleadings, as filed, affirmatively demonstrate the court's jurisdiction to hear the case. Tex. Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001); Baston, 49 S.W.3d at 427-28; City of Hidalgo Ambulance Serv. v. Lira, 17 S.W.3d 300, 304 (Tex.App.-Corpus Christi 2000, no pet.).
In considering the question of the trial court's jurisdiction, we note that subject matter jurisdiction is never presumed and cannot be waived.
Accordingly, since appellees' petition seeks a declaratory judgment against a governmental unit, we must determine whether a claim for declaratory judgment waives sovereign immunity and, if so, whether appellees have properly pled such a claim so as to invoke jurisdiction in the trial court. See Miller, 51 S.W.3d at 587 (mere reference to a basis for waiver of sovereign immunity in a petition is not enough to confer jurisdiction; the reviewing court must examine the scope of the waiver and whether the allegations in the petition fall within the scope of that waiver).
A declaratory judgment action is not a grant of jurisdiction but "merely a procedural device for deciding cases already within a court's jurisdiction." Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex.1996); State v. Morales, 869 S.W.2d 941, 947 (Tex.1994). The stated purpose of the Uniform Declaratory Judgments Act ("UDJA") is "to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." Tex.Civ.Prac. & Rem.Code Ann. § 37.002(b) (Vernon 1997).
The UDJA provides that:
A person interested under a deed, will, written contract, or other writing constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
In the case of an action involving the validity of a municipal ordinance or franchise, the municipality must be made a party and is entitled to be heard. TEX.CIV. PRAC. & REM.CODE ANN. § 37.006(b) (Vernon 1997). In a proceeding for declaratory judgment, the court may award costs and attorney's fees. TEX.CIV.PRAC. & REM.CODE ANN. § 37.009 (Vernon 1997). The court may also award further relief whenever necessary or proper, but such relief must be within the existing jurisdiction of the court.
A declaratory judgment is appropriate only if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.1995). "To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute." Id. (quoting Bexar-Medina-Atascosa Counties Water Control & Improvement Dist. No. 1 v. Medina Lake Prot. Ass'n, 640 S.W.2d 778, 779-80 (Tex.App.-San Antonio 1982, writ ref'd n.r.e.)). A trial court has the discretion to enter a declaratory judgment so long as it will serve a useful purpose or will terminate the controversy between the parties. Id. at 468. But a trial court may refuse to render or enter a declaratory judgment or decree if it would not terminate the uncertainty or controversy giving rise to the proceeding. Tex.Civ.Prac. & Rem.Code Ann. § 37.008 (Vernon 1997).
Sovereign immunity, unless waived, protects the State of Texas from lawsuits for damages absent legislative consent. General Servs. Comm'n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 594 (Tex.2001). A city is deemed an agent of the state for sovereign immunity purposes when exercising its powers for a public purpose. City of Galveston v. Posnainsky, 62 Tex. 118, 127 (1884). Sovereign immunity derives from the principle that the sovereign may not be sued in its courts without its consent. Tex. Workers' Comp. Comm'n v. Garcia, 862 S.W.2d 61, 72 (Tex.App.-San Antonio 1993), rev'd on other grounds, 893 S.W.2d 504 (Tex.1995). Sovereign immunity encompasses two principles—immunity from suit and immunity from liability. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997). Immunity from liability protects the State from judgments, even where there is an express consent on the part of the Legislature to permit a suit. Id. Immunity from liability is an affirmative defense that must be pled or else it is waived. Jones, 8 S.W.3d at 638 (citing Davis v. City of San Antonio, 752 S.W.2d 518, 519-20 (Tex. 1988)). Immunity from suit, on the other hand, bars a suit against the State unless the State expressly gives consent to the suit. Fed. Sign, 951 S.W.2d at 405. Immunity from suit then deprives a trial court of subject matter jurisdiction over
Declaratory Judgments and Sovereign Immunity
The Texas Supreme Court has consistently distinguished between suits in which only a declaration of rights against the State is sought and suits seeking money damages against the State. Fed. Sign, 951 S.W.2d at 404; W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 841 (1958); Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945); see also Dewhurst v. Gulf Marine Inst. of Tech., 55 S.W.3d 91, 97 (Tex.App.-Corpus Christi 2001, pet. denied). The former are not considered suits against the State for damages and so no legislative consent is required. Cobb, 190 S.W.2d at 712. However, a suit which is brought ostensibly for the purpose of declaring rights, but actually seeks to impose liability on the State for damages, is a suit against the State barred by sovereign immunity. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855-56 (Tex.2002); see also Cobb, 190 S.W.2d at 712; Dodgen, 308 S.W.2d at 841-42.
Certain declaratory judgment actions against state officials have been found not to implicate the sovereign immunity doctrine. IT-Davy, at 855. Specifically, a party may bring a suit seeking declaratory relief against state officials who allegedly act without legal or statutory authority and such suit is not "a suit against the state" because it does not attempt to subject the State to liability. Id. Thus legislative consent is not required to maintain such suits. Id. However, where a party brings a suit for declaratory judgment but seeks monetary damages, sovereign immunity bars such a suit. Id. at 855-56. That is because such a suit attempts to control state action by imposing liability on the State. Id. The supreme court has roundly condemned such actions, stating, "private parties cannot circumvent the State's sovereign immunity from suit by characterizing a suit for money damages, such as a contract dispute, as a declaratory judgment claim." Id. at 855-56. While the UDJA allows private parties to challenge ordinances or statutes, it does not authorize them to sue the State for money damages. Id. at 859. Therefore, sovereign immunity is not waived for a request for declaratory relief that seeks money damages and such a suit can only be maintained with legislative consent. Id. at 859-60; see also Fed. Sign, 951 S.W.2d at 405 (even if party did not need legislative consent to pursue a suit to determine its rights, it needed legislative consent to seek its requested money damages from the State and lacking the same, the case was properly dismissed for want of jurisdiction); Denver City Indep. Sch. Dist. v. Moses, 51 S.W.3d 386, 392 (Tex.App.-Amarillo 2001, no pet.) (declaratory judgment action that also sought restitution was a suit for money damages over which the trial court had no subject matter jurisdiction absent the State's consent to suit); Tex. Dep't of Transp. v. Jones Bros. Dirt & Paving Contractors, 24 S.W.3d 893, 901-02 (Tex.App.-Austin 2000, pet. granted) (petition requesting a purported declaratory judgment which sought damages as relief was obviously aimed at controlling State action or subjecting the State to liability and so did not demonstrate a waiver of sovereign immunity); TRST Corpus, Inc. v. Financial Ctr., Inc., 9 S.W.3d 316, 323 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (a suit seeking a declaratory judgment of rights, money damages and an order enforcing rights through injunction, judicial foreclosure and/or constructive trust, was a suit against the state for
The Instant Action
As described previously, appellees' Third Amended Original Petition complains that the City "failed to compensate" them according to ordinance 2119 and deprived four of them of a classification of the level of "Lieutenant" and its accompanying salary which the City had earlier represented would be assigned to them. The petition also asserts that the City deprived appellees of their benefits under ordinance 2119 by enacting ordinance 2143 which effectively reduced their salaries, "while representing that Plaintiffs were receiving an increase." They complain that because "of the [City's] conduct," they were deprived of "entitled" salary increases, to their financial detriment.
Notably, appellees do not challenge the validity of either of the ordinances, nor do they raise any question regarding the construction of any of the terms of either ordinance. Rather, they seek a declaration that they are entitled to compensation in accordance with ordinance 2119 and the increases provided thereby "had Defendant not reduced the salary classifications under Ordinance 2143" and also that four appellees are entitled to the Lieutenant classification and salary.
We note that the matters of which appellees complain, and the relief they request of the trial court, do not appear to be subject to resolution by a declaratory judgment.
No possible reading of an ordinance could construe the negation of the existence of its own replacement ordinance. Appellees' petition suggests some sort of impropriety on the part of the City in enacting ordinance 2143 because it had the effect of reducing appellee's salaries but they do not assert that ordinance 2143 is invalid or that the City acted outside its authority.
Nor is the request for a finding that four appellees are entitled to the Lieutenant classification and salary in any way connected to the construction or validity of either statute. Neither ordinance makes any reference to the term "Lieutenant." Even, assuming as we must, the truthfulness of appellees' claims that the City represented that it would assign appellees such a classification, the question of whether they were entitled to such classification is not a legal one that can be determined by reviewing the ordinances in question. There is no legal question of construction or validity of an ordinance presented by such a question. It is rather, in the nature of a contractual claim, asserting that the City promised such classification and salary (even "order[ing] Lieutenant badges," as the petition claims) and then failed to compensate appellees in accordance with that classification.
More importantly for our purposes, the petition clearly states a claim for which the trial court has no jurisdiction.
Appellees seek a declaration and judgment of the City's liability for failure to compensate them at a certain rate and
Indeed, at the hearing on the plea to the jurisdiction, appellees did not argue that they were not seeking money damages but instead stoutly asserted that sovereign immunity for municipalities was waived by the UDJA as noted in Tex. Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex.1994) and City of El Paso v. Croom Constr. Co., 864 S.W.2d 153, 155 (Tex.App.-El Paso 1993, writ denied). This argument was made in response to the City's complaint to the trial court that appellees were attempting to file a suit for damages under the guise of a declaratory judgment action.
We agree with the City. The supreme court in IT-Davy, in dismissing a case for want of jurisdiction, resolutely rejected the interpretation of the UDJA and Leeper, relied upon by appellees, stating
IT-Davy, at 859-60 (citations omitted).
Accordingly, an action for declaratory judgment seeking only a clarification of rights, attorney's fees, and costs is not a suit for damages against the State and is not barred by sovereign immunity. Id. However, a suit for money damages against the State cannot be maintained without legislative consent, notwithstanding that it may be presented in the posture of a declaratory judgment action. Id. at 855-56, 859-60.
Appellees' petition was not merely an action seeking a declaratory judgment, attorney's fees and costs, but rather an action which attempted to subject the City to liability for back pay and other similar damages, along with pre- and post-judgment interest on the same. Therefore, appellees' action, despite its reference to the declaratory judgment act, is a suit for money damages, barred by sovereign immunity, and, lacking legislative consent, the face of appellees' pleadings affirmatively demonstrates a lack of jurisdiction. IT-Davy, at 855-56, 859-61; Fed. Sign, 951 S.W.2d at 405; Moses, 51 S.W.3d at 392; TRST Corpus, 9 S.W.3d at 323.
As appellees' suit cannot be maintained against the City without legislative consent, and as the appellees, in four petitions as well as argument before the trial court, have never claimed, either to the trial court or this Court, to have legislative consent for this suit, we conclude that it is not possible for the petition to be amended to confer jurisdiction on the trial court. City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 313-14 (Tex. App.—Houston [1st Dist.] 2001, no pet.); TRST Corpus, 9 S.W.3d at 323-24. Accordingly, we sustain the City's sole issue.
The City of San Benito's issue on appeal complaining of the trial court's denial of its plea to the jurisdiction is sustained. We reverse the trial court's order denying the City's plea to the jurisdiction and render judgment dismissing this case for lack of subject matter jurisdiction.
The claims for money damages are even more pointedly asserted in the appellees' Second Amended Original Petition (mistitled and filed after the denial of the plea to the jurisdiction) in which appellees specifically "seek compensation" for the claimed deprived salary increases and lost contributions to their retirement plan and pray that the court grant declaratory relief and judgment that they are "entitled to and shall now be compensated ... and shall now receive..." yearly increases, appropriate classification and salary, "compensation for all lost salaries and benefits, including but not limited to contributions to [their retirement plans]" as well as pre- and post-judgment interest. (Emphasis added).