City of San Benito v. Ebarb

• Decision Date: 18 July 2002
• Docket Number: No. 13-01-859-CV.,13-01-859-CV.
• Citation: 88 S.W.3d 711
• Parties: CITY OF SAN BENITO, Appellant, v. Clarence Arthur EBARB, Jr., et al., Appellees.
• Court: Texas Court of Appeals

88 S.W.3d 711

CITY OF SAN BENITO, Appellant, v. Clarence Arthur EBARB, Jr., et al., Appellees.

No. 13-01-859-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

July 18, 2002.

Rehearing Overruled September 19, 2002.

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Marcus Montalvo, Montalvo & Ramirez, McAllen, for Appellant.

Janice A. Cassidy, San Benito, for Appellee.

BEFORE: Justices HINOJOSA, YAÑEZ, and CASTILLO.

OPINION

CASTILLO, J.

This is an interlocutory appeal from the denial of a plea to the jurisdiction.¹ In one issue, appellant City of San Benito ("City") asserts that the trial court does not have jurisdiction since appellees failed to exhaust their administrative remedies under chapter 143 of the Texas Local Government Code. We reverse and remand.

Background

Appellees² are law enforcement officers employed by the City. On April 23, 1999, appellees filed suit against the City, claiming that the City "failed and refused" to compensate appellees in accordance with the requirements of city ordinance 2119 and seeking actual damages as well as pre-and post-judgment interest on those damages. Specifically, they claimed that ordinance 2119 had raised the base pay³ for the sergeant, captain and major assistant chief classifications and thus plaintiffs, who were so classified, should have received the increased salaries. The City filed special exceptions to appellees' original petition stating that: (1) appellees failed to plead that a valid, enforceable contract came into being through an offer, acceptance, and consideration; and, (2) "to the extent that there existed a contract between San Benito and Plaintiffs because Plaintiffs have failed to plead and [sic] that all conditions precedent to the alleged contract have occurred." On October 10, 2001, the trial court signed an order sustaining both special exceptions. The order did not provide a deadline for amendment of the petition.

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,"⁴ which the trial court granted leave to file at the conclusion of the hearing. Appellees also filed a response to the City's second special exceptions, denying the City's assertion that their cause of action was based upon "negligence per se" and urging that their First Amended Original Petition stated a claim for declaratory relief and judgment, noting that they had filed a Third Amended Original Petition which added a statutory reference to the Uniform Declaratory Judgments Act "for specificity and clarity." Their response to the plea to the jurisdiction, also filed that morning, likewise asserted that the cause was brought as a suit for declaratory judgment and argued that sovereign immunity was therefore waived.

The trial court, after hearing arguments from both sides, denied the plea to the jurisdiction and this appeal ensued.

Issue Presented

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.⁵ Appellees counter that exhaustion of administrative remedies is not required because there is no mandatory exhaustion of remedies requirement applicable to this case.⁶

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) (citing Texas Natural Res. Conservation Commit v. White, 46 S.W.3d 864, 868 (Tex. 2001) and Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000)). In doing so, the trial court must construe the plaintiffs pleadings liberally in favor of jurisdiction, Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex.1989), and must take all factual allegations pled as true, unless the defendant pleads and proves that the allegations were fraudulently made in order to confer jurisdiction. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex.1996). If a plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction and such defect is incurable, immediate dismissal of the case is proper. Peek, 779 S.W.2d at 804-05; City of Austin v. L.S. Ranch, 970 S.W.2d 750, 753 (Tex.App. — Austin 1998, no pet.). However, the mere failure of a petition to state a cause of action does not show a want of jurisdiction in the court. Bybee v. Fireman's Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910, 917 (1960). If the plaintiffs pleadings are insufficient to demonstrate the court's jurisdiction, but do not affirmatively show incurable defects in jurisdiction, the proper remedy is to allow the plaintiff an opportunity to amend before dismissing. Brown, at 555; Peek, 779 S.W.2d at 804-05. On appeal, because the question of subject matter jurisdiction is a legal question, we review the trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). To determine whether the plaintiff has affirmatively demonstrated the court's jurisdiction to hear the case, we consider the facts alleged by the plaintiff, and to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties. White, 46 S.W.3d at 868. Like the trial court, we must construe the pleadings in the plaintiffs favor and look to the pleader's intent. Brown, at 555. Our task is not to determine the merits of the case hut rather to examine the petition, taking as true the facts pled, and determine whether those facts support jurisdiction in the trial court. Boston v. City of Port Isabel, 49 S.W.3d 425, 427-28 (Tex. App.— Corpus Christi 2001, pet. denied).

Discussion

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 salary classifications and created a "lieutenant" classification. Appellees claimed that representations were made to four of the appellees that in October 1995, they would be assigned this classification, with its attendant salary.⁷ Appellees complained that during the fiscal year between October 1, 1995 and September 30, 1996, the City did not compensate them in accordance with ordinance number 2119 and they were deprived of the classification and salary which had...