City of Roman Forest v. Stockman

• Decision Date: 29 July 2004
• Docket Number: No. 09-03-408 CV.,09-03-408 CV.
• Citation: 141 S.W.3d 805
• Parties: CITY OF ROMAN FOREST, Appellant, v. Gary Michael STOCKMAN, Appellee.
• Court: Texas Court of Appeals

141 S.W.3d 805

CITY OF ROMAN FOREST, Appellant, v. Gary Michael STOCKMAN, Appellee.

No. 09-03-408 CV.

Court of Appeals of Texas, Beaumont.

Submitted March 25, 2004.

Decided July 29, 2004.

Appeal from the 221st District Court, Montgomery County, Suzanne H. Stovall, J William S. Helfand, Kevin D. Jewell, Barbara E. Roberts, Chamberlain, Hrdlicka, White, Williams & Martin, Houston, for appellant.

Joyce Keating, Houston, for appellee.

Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.

OPINION

STEVE McKEITHEN, Chief Justice.

This is an interlocutory appeal from the trial court's denial of a plea to the jurisdiction. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(8) (Vernon Supp.2004). Gary Michael Stockman sued the City of Roman Forest for wrongful termination under the Whistleblower Act, for breach of contract, and for intentional infliction of emotional distress. The City says the trial court lacks jurisdiction because the City is immune from suit.

The case arises out of Stockman's work for the City while he was a municipal court judge. A municipal court judge's term of office is two years. See TEX. GOV'T CODE ANN. § 29.005 (Vernon 2004). Stockman was appointed municipal judge of Roman Forest and served in that capacity from 2001 until 2003.¹ Stockman claims the mayor requested that Stockman dismiss certain traffic tickets; Stockman refused to do so and reported the incidents to the chief of police. As a result of his refusal to dismiss the tickets, Stockman claims his pay was docked. He also alleges he conducted an audit of the court system at the prior mayor's request and found irregularities, but when he pursued the corruption investigation he was threatened by a council member and told to stop. Stockman claims the City terminated him as a result of his reports of illegal activity. The City says his term ended, and he was not reappointed.

Stockman sued the City and the individuals involved.² A governmental unit is immune from suit unless the immunity is waived. See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003). Governmental immunity from suit defeats a trial court's subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004). Immunity from suit may be waived by statute. See generally Travis County v. Pelzel & Assocs., 77 S.W.3d 246, 249 (Tex.2002).

The law of governmental immunity has traditionally distinguished between a municipality's governmental and proprietary functions. See City of Galveston v. Posnainsky, 62 Tex. 118 (1884); Gates v. City of Dallas, 704 S.W.2d 737, 738-39 (Tex.1986). Generally, unless the immunity is waived, a municipality is immune from suit for the exercise of a governmental function. See City of Mission v. Cantu, 89 S.W.3d 795, 801 (Tex.App.-Corpus Christi 2002, no pet.) (tort); Herschbach v. City of Corpus Christi, 883 S.W.2d 720, 730 (Tex.App.-Corpus Christi 1994, writ denied) (tort); International Bank of Commerce v. Union Nat'l Bank, 653 S.W.2d 539, 545-46 (Tex.App.-San Antonio 1983, writ ref'd n.r.e.) (contract).

This suit arises out of the City's performance of a governmental function. Stockman asserts three types of claims—a tort claim, a contract claim, and a Whistle-blower claim. He cites three statutory waivers of governmental immunity. In the Tort Claims Act, the Legislature has provided a limited waiver of immunity from suit for certain tort actions. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.021, 101.0215 (Vernon 1997 & Supp.2004). The Whistleblower Act also contains a partial waiver of immunity from suit to the extent claims are allowed under that Act. And the Local Government Code provides general law municipalities may "sue and be sued"—language that some courts have found to be a waiver of immunity from suit. See TEX. LOC. GOV'T CODE ANN. §§ 51.013, 51.033, 51.051 (Vernon 1999).

In issue one, the City contends the trial court erred in denying its plea to the jurisdiction on Stockman's Whistleblower Act claim. Under the Act, a "state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority." TEX. GOV'T CODE ANN. § 554.002(a) (Vernon Supp.2004). The statute defines "public employee" as "an employee or appointed officer other than an independent contractor who is paid to perform services for a state or local governmental entity." TEX. GOV'T CODE ANN. § 554.001(4) (Vernon Supp.2004). Immunity is waived to the extent of liability allowed by the Whistleblower Act. See TEX. GOV'T CODE ANN. § 554.0035 (Vernon Supp.2004). Therefore, unless the party asserting the claim under the Whistleblower Act is a public employee within the meaning of the Act, immunity from suit is not waived by the Act.

Stockman argues he falls under the "appointed officer other than an independent contractor" part of the "public employee" definition. He was appointed; and because members of the City's governing body attempted to control the details of his work as municipal judge, Stockman says he was not an independent contractor.

The common law test for determining whether someone is an employee rather than an independent contractor is whether the alleged employer has the right to control the progress, details, and methods of operation of the work. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex.2002). Stockman relies on the City's control of the hours he worked and the provision of his supplies, his office, and support personnel to establish he was not an independent contractor. But that arrangement does not show any right to control the details of his work as a municipal judge, nor does any individual's alleged effort to control him demonstrate the City's right to control his judicial work. The evidence before the trial court does not indicate he was an employee rather than an independent contractor. See generally Miranda, 133 S.W.3d at 228 (If the evidence is undisputed or does not create a fact question regarding the jurisdictional issue, then the trial court rules on the plea to the jurisdiction as a matter of law.). Stockman argues that the City's right to terminate him or not reappoint him makes him dependent.³ But the Act's definition of "public employee" excludes appointed officials who are independent contractors. See TEX. GOV'T CODE ANN. § 554.001(3) (Vernon Supp.2004). The general power to appoint or not reappoint Stockman does not in itself show control of the details of the judge's work sufficient to make him a "public employee" within the meaning of the Act.

The Texas Constitution provides, as follows, for a separation of powers among the three branches of state government:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

TEX. CONST. art. II, § 1. The Texas Constitution also provides that the "judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law." TEX. CONST. art. V, § 1. The municipal court derives its power and jurisdiction from the Texas Government Code; pursuant to constitutional authority, the Legislature has created a municipal court in each municipality and defined the court's jurisdiction. See TEX. GOV'T CODE ANN. §§ 29.002, 29.003 (Vernon 2004). A municipal court judge is part of the judicial branch of government. See generally Thompson v. City of Austin, 979 S.W.2d 676, 680-83 (Tex.App.-Austin 1998, no pet.).

In Thompson, the court noted that a municipal judge was entrusted with independent and sovereign powers, and his office had all the indicia of a public office, including judicial oath, membership in the judiciary, authority to pronounce judgment and to adjudicate parties' rights, and a fixed term subject to removal. Thompson, 979 S.W.2d at 682-83. In view of these facts, the court held a municipal judge was not an "employee" within the meaning of that term in the Texas Commission on Human Rights Act. As the Thompson court stated, "Historically, the judiciary has been privileged with a sacred independence necessary to maintain the impartiality required to determine the law. A judge must be independent from the outside influence of the other branches of government. Thus, the very nature of the office demands that a municipal judge be independent of the Council in exercising this sovereign power." Id. at 682.

We hold a municipal judge is not within the definition of "public employee" in the Whistleblower Act. Issue one is sustained.

In issue two, the City argues that Stockman's breach of contract claim is barred by the doctrine of governmental immunity.⁴ Stockman alleged in his pleadings that the City breached its agreement to pay him wages for services he had rendered to the City in an audit of the City's warrant and complaint system. This assignment was separate from his work as a municipal judge. In its plea to the jurisdiction, the City denied the existence of a contract, and, alternatively, that any contract would be unenforceable under the Statute of Frauds. The City does not make this argument on appeal, and we do not consider it. Instead, the City argues on appeal that governmental immunity bars the contract claim.⁵

Governmental immunity...