Nueces County v. Ferguson

Decision Date27 November 2002
Docket NumberNo. 13-02-230-CV.,13-02-230-CV.
Citation97 S.W.3d 205
PartiesNUECES COUNTY and Larry Olivarez, Sheriff, Appellants, v. Gayle C. FERGUSON, Appellee.
CourtTexas Court of Appeals

Laura Jimenez Garza, County Atty., Milan Marinkovich, Asst. County Atty., Corpus Christi, for appellants.

Jeanne Chastain, Corpus Christi, for appellee.

Before Justices HINOJOSA, CASTILLO, and CHAVEZ.1

OPINION

Opinion by Justice CASTILLO.

This is an interlocutory appeal from the denial of a plea to the jurisdiction.2 In two issues, appellants Nueces County ("the County") and Sheriff Larry Olivarez ("the Sheriff') assert that the trial court erred in denying their plea to the jurisdiction. We reverse and render.

BACKGROUND

In March of 1996, appellee, Gayle Ferguson, an employee of the Nueces County Sheriffs Department, applied for a posted position of training officer with the Sheriffs Department but was not awarded the position. The position instead went to Stanley Repka. Ferguson consequently filed a grievance against the sheriff of Nueces County3 with the Nueces County Civil Service Commission ("the Commission") for the sheriffs failure to appoint him to the position.

The Commission issued a decision on December 16, 1996, that stated, "The Commission holds that Sgt. Stanley Repka lacks the minimum qualifications for position number 015, Job Class & Title 1432 Training Officer" and pronounced that the Commission was deciding in favor of Ferguson. However, the Commission made no findings, nor did it award the position of training officer to Ferguson.

The position was reannounced in May of 1997 with the same qualifications listed and Ferguson again applied. The position was reannounced later with different qualifications and awarded to Repka. Consequently, in November of 1998, Ferguson filed a lawsuit against the County and against Sheriff Larry Olivarez.4

While the lawsuit was pending, Ferguson, who remained in the employ of the Sheriffs Department, was terminated after being disciplined repeatedly.5 He appealed his termination to the Commission. The Commission issued a decision on the termination on August 15, 2001, wherein it. made the following "FINDINGS AND DECISIONS": "It is the unanimous decision of the members of the Commission in regards to Grievance Number 02091-1, Gayle C. Ferguson Nueces County Sheriff's Department to reduce the termination to a ninety day suspension." No other decision or finding was made.

On September 17, 2001, Ferguson amended his petition in the pending lawsuit. In his amended petition, he stated he was seeking "enforcement of the Civil Service Commission findings of December 1996 by prospective injunction placing [Ferguson] in the position for which he was the most highly qualified in 1996" and "full reinstatement from termination in 2001" as well as "enforcement of the benefits attendant to the position of sergeant in the form of retroactive pay for the position as he would have earned if not terminated or suspended." He also stated that he was seeking "full reinstatement without suspension expungement of his derogatory work record and full back pay," asserting that he was "entitled to such relief under the Civil Service Rules, state law, and because such losses are a result of discrimination and retaliation." Ferguson also alleged that the acts and conduct of "Defendants" as alleged in the petition constituted intentional infliction of' emotional distress as "[they] had acted knowingly and intentionally to deprive Plaintiff of the rightful benefits of the position." Under the final section of his petition, entitled "Damages," Ferguson requested: (1) a temporary restraining order restraining appellants from conferring the status of Training Officer on anyone other than himself or from allowing anyone other than himself to function as Training Officer; (2) that "Defendant be restrained from suspending [Ferguson] retroactively and full back pay be awarded;" and that (3) "a temporary injunction be granted."6 Ferguson also requested that "on final trial, Plaintiff have and recover judgment against Defendants for": (1) "the value of the loss of the position of Training Officer;" (2) "damages for negligent violation of employment policies and compensation and benefits due" to him; (3) "additional sums for past and future damages sustained by [Ferguson] for intentional infliction of emotional distress and for mental anguish;" (4) "full back and front pay;" (5) "prejudgment interest and postjudgment interest at the maximum legal rate until all damage awards have been paid in full;" (6) reasonable and necessary attorney's fees; (7) costs of court; and (8) all other relief to which he might show himself entitled.

To this amended pleading, appellants filed a second amended plea to the jurisdiction and motion to dismiss7 on November 28, 2001, asserting that the trial court lacked subject matter jurisdiction because Ferguson failed to file a petition in the district court within thirty days after the dates of the Commission's decisions as required by local government code section 158.012(a).8 TEX. LOC. GOV'T CODE ANN. § 158.012(a) (Vernon 1999). Appellants also argued that sovereign immunity deprived the trial court of jurisdiction over the tort claims alleged. After hearing arguments and reviewing briefs on the issue, the trial court denied the plea to the jurisdiction. This interlocutory appeal ensued.

ISSUES PRESENTED

In their first issue, appellants assert that the trial court erred in denying their plea to the jurisdiction and motion to dismiss because they were immune from suit under the doctrine of sovereign immunity. In their second issue, appellants assert that the trial court erred in denying the plea to the jurisdiction and motion to dismiss because Ferguson failed to comply with the statutory requirements of local government code section 158.012(a), thereby depriving the trial court of subject matter jurisdiction over the Commission's decisions rendered on December 16, 1996 and August 15, 2001.

Ferguson presents no response to appellant's first issue. To the second issue, Ferguson counters that he seeks to neither affirm nor reverse the Commission's decisions since he should not be required to appeal to accomplish the clear ruling of the commission. Rather, Ferguson argues, ho is entitled to immediate compliance or an enforcement ruling because no appeal was taken by the sheriff.

STANDARD OF APPELLATE REVIEW

This appeal is strictly limited to our review of the trial court's ruling on the plea to the jurisdiction. TEX. CIV PRAC s REM.CODE ANN. § 51.014(a)(8) (Vernon Supp.2002). 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 appellees have affirmatively demonstrated the court's jurisdiction to hear the case, we consider the facts alleged in the petition, and to the extent it is relevant to the jurisdictional issue, any evidence submitted by the parties to the trial court. Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex.2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). Our task is not to decide the merits of the case but rather to examine the claims in the pleadings, taking as true the facts pled,9 and determine whether those facts support jurisdiction in the trial court. Baston v. City of Port Isabel, 49 S.W.3d 425, 427-28 (Tex.App.-Corpus Christi 2001, pet. denied).

We must construe the pleadings in the plaintiffs favor and look to the pleader's intent. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); Peek v. Equip. Serv. Co.. 779 S.W.2d 802, 804 (Tex.1989). A plaintiff bears the tau;len to allege facts affirmatively demonstrating the trial court's jurisdiction to near 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.). If a plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction, and the defect is incurable, then the cause is properly dismissed. Peek, 779 S.W.2d at 804-05: City of Austin 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. 129. 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 dismissal. Brown, 80 S.W.3d at 555; Peek, 779 S.W.2d at 805.

CLAIMS AGAINST SHERIFF OLIVAREZ

As a preliminary matter, we must consider the capacity in which suit is brought against Sheriff Larry Olivarez as such will affect our review of the claims against him.

A plaintiff may sue a governmental employee or official in the person's official capacity, individual capacity, or both. Denson v. Tex. Dep't of Crim. Justice, 63 S.W.3d 454, 460 (Tex.App-Tyler 1999, pet. denied), However. claims against governmental employees or officials in their official capacities are separate and distinct from claims against them in their individual capacities. Vela v. Rocha, 52 S.W.3d 398, 403 (Tex.App.-Corpus Christi 2001, no pet.). Indeed, a person sued in his legal capacity is regarded as a distinct legal personage from that same person sued in his individual capacity. Elizondo v. Tex. Natural Res. Conservation Comm'n, 974 S.W.2d 928, 931 (Tex. App.-Austin 1998, no pet.)(citing Alexander v. Todman, 361 F.2d 744, 746 (3rd Cir.1966); accord Bender v....

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