City of Round Rock v. Whiteaker

Decision Date16 November 2007
Docket NumberNo. 03-07-00009-CV.,03-07-00009-CV.
Citation241 S.W.3d 609
PartiesCITY OF ROUND ROCK and Round Rock Fire Chief Larry Hodge, Appellants v. Mark WHITEAKER, Appellee.
CourtTexas Court of Appeals




We withdraw our opinion, concurring opinion and judgment issued September 14, 2007, and substitute the following in its place. We overrule appellants' motion for rehearing.

This appeal is the latest in the rapidly-evolving jurisprudence addressing, in light of City of Houston v. Williams,1 the extent to which governmental immunity bars suits arising from alleged violations of local government code chapter 143. Mark Whiteaker, a lieutenant in the Round Rock Fire Department, sued the City of Round Rock and its fire chief, Larry Hodge (collectively, the City), claiming that his rights under local government code section 143.036 were violated when Hodge promoted another fire lieutenant to a captain position that Whiteaker desired. Whiteaker sought remedies that include retroactive promotion, back pay, and back benefits. The City filed a plea to the jurisdiction, asserting that Whiteaker lacked standing, that he failed to exhaust administrative remedies, and that his claims were barred by the City's governmental immunity. The district court denied the plea, and the City appeals from this order.2

Williams and other recent Texas Supreme Court decisions regarding sovereign or governmental immunity require us to conclude that Whiteaker's claims are barred by governmental immunity to the extent they seek back pay or other retrospective monetary relief, but not to the extent they seek to compel the City to comply with chapter 143 prospectively. The record before us indicates that Whiteaker may be able to cure this partial jurisdictional defect by amending his pleadings. For these reasons, and because we overrule the City's other issues, we affirm the order of the district court in its entirety.


The subject-matter jurisdiction of a trial court may be challenged through a plea to the jurisdiction. See Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000); Hendee v. Dewhurst, 228 S.W.3d 354, 366 (Tex.App.-Austin 2007, pet. denied). The determination of whether a trial court has subject-matter jurisdiction begins with the pleadings. See Miranda, 133 S.W.3d at 226. The pleader has the initial burden of alleging facts that affirmatively demonstrate the trial court's jurisdiction to hear the cause. Id. (citing Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993)). Whether the pleader has met this burden is a question of law that we review de novo. Id. We construe the pleadings liberally and look to the pleader's intent. Id.

If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Miranda, 133 S.W.3d at 227.

However, "a court deciding a plea to the jurisdiction 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, 34 S.W.3d at 555. When a plea to the jurisdiction challenges the existence of facts alleged by the pleader to establish the trial court's subject-matter jurisdiction, the trial court must consider relevant evidence submitted by the parties. Miranda, 133 S.W.3d at 227 (citing Bland, 34 S.W.3d at 555); Hendee, 228 S.W.3d at 366. To varying degrees, this jurisdictional inquiry may also implicate the merits of the pleader's cause of action. Compare Bland, 34 S.W.3d at 554-55 (citing challenges to associational standing and personal jurisdiction as entailing "an evidentiary inquiry [that] . . . does not involve a significant inquiry into the substance of the claims" and holding that challenge to taxpayer standing did not implicate merits), with Miranda, 133 S.W.3d at 227-28 (describing overlapping jurisdictional and merits inquiry regarding challenge to whether parks and wildlife department acted with gross negligence so as to waive sovereign immunity under the recreational use statute). When the consideration of a trial court's subject-matter jurisdiction requires the examination of evidence, the trial court exercises its discretion in determining whether the jurisdictional determination should be made at a preliminary hearing or await fuller development of the case, mindful that the jurisdictional determination must be made as soon as practicable. Miranda, 133 S.W.3d at 227-28.

"[I]n a case in which the jurisdictional challenge implicates the merits of the plaintiff's cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists." Id. at 227. This standard, which "generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c)," seeks to reconcile "the fundamental precept that a court must not proceed on the merits of a case until legitimate challenges to its jurisdiction have been decided" while "protect[ing] the interests of the state and the . . . claimants in cases . . . in which the determination of the subject matter jurisdiction of the court implicates the merits of the parties' cause of action." Id. at 228. Accordingly, when reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the nonmovant and indulge every inference and resolve any doubt in the nonmovant's favor. Id. Whether the evidence presents a fact question regarding a jurisdictional fact is a question of law that we review de novo. Id.


Before turning to the parties' pleadings and jurisdictional evidence, it is helpful to first survey the statutory context in which this proceeding arises—chapter 143 of the local government code.3

Chapter 143 of the local government code is the current incarnation of the Fire-fighter and Police Civil Service Act. Chapter 143 is intended "to secure efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants." Tex. Loc. Gov't Code Ann. § 143.001(a) (West 1999). To that end, positions in the fire and police departments of municipalities governed by chapter 143 are classified, receive civil service protection, and are filled from promotion eligibility lists based on objective, merit-based qualifications and competitive testing. Id. § 143.021 (West 1999).

Municipalities are not automatically governed by chapter 143. Instead, the legislature has permitted municipalities with a population of 10,000 or more that have a paid fire department and police department to opt-into the chapter 143 regime through a local election. Id. § 143.002 (West Supp.2006), § 143.004 (West 1999). The voters of Round Rock have approved the adoption of chapter 143 and, at all times relevant to this case, it has governed the City's fire and police departments. The City has established a Firefighters' and Police Officers' Civil Service Commission (the Commission) to administer and implement chapter 143 in accordance with its purposes. See id. § 143.001, § 143.006 (West Supp.2006).

In a municipality like the City that is governed by chapter 143, the municipal governing body establishes by ordinance the classifications and number of positions in each classification. Id. § 143.021(a). In this manner, the governing body can create new positions or, within certain limitations, abolish them. See City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153, 155-59 (1960); Michna v. City of Houston, 521 S.W.2d 331, 334-35 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ).

Promotion eligibility lists for vacancies in each non-entry level classification are created by administering a competitive written exam open to promotion-eligible candidates. See Tex. Loc. Gov't Code Ann. §§ 143.028, .032 (West Supp.2006), § 143.030 (West 1999). Candidates who score 70 points or above (the maximum being 100 points) pass the exam. See id. § 143.033(c) (West Supp.2006). Based on the candidates' exam scores and additional points awarded based on seniority, passing candidates are ranked on a promotion eligibility list. Id. § 143.033(b)-(c). Each promotion eligibility list remains in effect for one year after the date on which the exam was given, "unless exhausted" earlier. Id. § 143.036(h) (West Supp.2006). As vacancies arise, the commission shall submit names from the list to the department head until each vacancy is filled or the list is exhausted. Id. § 143.036(c).

If a vacancy arises before a promotion eligibility list expires or is exhausted, the department head is required to fill the vacancy by permanent appointment from the list within sixty days after the date the vacancy occurs. Id. § 143.036(e). Texas courts have repeatedly held that a department head's duty to fill a vacancy from a promotion eligibility list is mandatory—he or she has no discretion not to fill the vacancy. See International Ass'n of Firefighters v. Townsend, 622 S.W.2d 562, 563 (Tex.1981) (per curiam); Duckett v. City of Houston, 495 S.W.2d 883, 886-87 (Tex.1973); see Klinger v. City of San Angelo, 902 S.W.2d 669, 673-74 (Tex.App.-Austin 1995,...

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