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Date: 06-23-2017

Case Style:

Jefferson County, Texas v. Victor Stines

Jefferson County Courthouse - Beaumont, Texas

Case Number: 09-16-00058-CV

Judge: Kreger

Court: Texas Court of Appeals, Ninth District on appeal from the Kreger

Plaintiff's Attorney: T. Phillip Brent and Lance P. Bradley

Defendant's Attorney: Kathleen M. Kennedy and Gerald Riedmueller

Description: Appellant Jefferson County, Texas appeals from two orders of the trial court
denying its plea to the jurisdiction and granting appellee Victor Stines’s request for
a declaratory judgment and writ of mandamus to compel the County to submit to
arbitration. In five issues, the County argues that: (1) Stines failed to plead and prove
a valid waiver of the County’s immunity from suit; (2) the trial court erred in
concluding that the Uniform Declaratory Judgment Act waives the County’s
immunity from suit; (3) Chapter 174 of the Texas Local Government Code does not
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waive the County’s immunity from suit; (4) the County did not waive its immunity
by entering into or accepting benefits under the parties’ collective bargaining
agreement; and (5) the trial court erred by finding that Stines timely invoked his right
to arbitration under that agreement. The County also challenges Stines’s standing to
bring suit. For the reasons set forth below, we reverse the trial court’s order denying
the County’s plea to the jurisdiction, vacate the trial court’s order granting Stines’s
request for a declaratory judgment and writ of mandamus, and render judgment
granting the County’s plea to the jurisdiction and dismissing the cause for lack of
jurisdiction.
I. Background
The Jefferson County Deputy Constables Association (the “Deputy
Constables Association”), Jefferson County (“the County”), and the Constables for
Precincts 1, 2, 4, 6, 7, and 8 of the County entered into a collective bargaining
agreement for the period commencing October 1, 2013, and ending September 30,
2014 (the “Agreement”). The Agreement states that it “is made and entered into” by
the parties “in accordance with all applicable state and federal statutes, including the
Fire and Police Employee Relations Act of Texas [(“FPERA”)] (Chapter 174 of the
Texas Local Government Code).” The Agreement further provides that its “general
purpose” is:
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to promote the mutual interests of the County and the deputy
constables; to provide for equitable and peaceful adjustments of
differences that may arise; to establish proper standards of wages, hours
and other terms and conditions of employment for “policemen” as
defined in the Fire and Police Employee Relations Act of Texas, with
the objective of providing a sound basis for the efficient and effective
delivery of services to the public.
Article 25 of the Agreement governs disciplinary actions taken by the
Constable against deputy constables. Article 25 provides:
ARTICLE 25
Disciplinary Actions
SECTION I
The purpose of this Article is to establish a procedure for the fair,
expeditious and orderly adjustment of disciplinary actions taken by the
Constable.
SECTION II
Upon notification of a complaint filed by any person, or initiated
by the Constable due to job performance, the Constable shall
thoroughly investigate within a reasonable period of time consistent
with the nature of the complaint being investigated.
SECTION III
Upon completion of any investigation, the Constable shall
determine the disciplinary action to be taken against the affected
deputy. The decision of the Constable shall be based upon whether or
not just cause exists for the discipline. For the purposes of this Section,
the term “just cause” means that the disciplinary action of the
Constable’s Office was reasonable in light of all circumstances; or was
done for good and sufficient reasons.
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SECTION IV
Within two (2) weeks of the Constable’s decision to discipline a
Deputy, the Deputy may invoke his right to binding arbitration pursuant
to the rules of the American Arbitration Association.
The Agreement defines “discipline” to mean “a suspension without pay or
termination.”
In September 2015, Stines, a former deputy constable in the office of the
Constable for Jefferson County Precinct 1, filed suit against the County, alleging
that he had been “subjected to a hostile work environment while employed by [the
County.]” Specifically, Stines alleged that in June 2014, during his employment as
a deputy constable for the County, the chief deputy constable of his precinct made
threats against him, causing Stines to have concerns about his safety at work.
According to the petition, Stines filed what was supposed to be an anonymous
complaint about the chief deputy constable’s actions; however, the complaint was
not kept anonymous, and over the next several months, Stines was “targeted” by
both the County and the constable of his precinct and was subjected “to unjust
employment practices and wrongful accusations.” Stines alleged that he was
ultimately suspended with pay in August 2014, and that his employment terminated
on September 23, 2014.
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Stines’s petition alleged that on October 7, 2014, his attorney mailed a written
notice of appeal to the constable, invoking Stines’s right under Article 25 of the
Agreement to binding arbitration of the constable’s decision to terminate his
employment. Stines claimed that his attorney also attempted to fax a copy of the
notice of appeal to the constable on the same date, but that “due to unintentional and
unforeseeable technological difficulties,” the fax could not be transmitted. Stines
alleged, however, that the notice was ultimately transmitted by fax on October 8,
2014. Stines alleged that despite his compliance with the notice requirements of
Article 25, the County refused to proceed to arbitration, claiming that Stines had
failed to timely invoke his right to arbitration under the Agreement.
Based on these alleged facts, Stines asserted a claim against the County under
the Uniform Declaratory Judgment Act (“DJA”), seeking a declaration of his “right
to compel [the County] to participate in binding arbitration of his wrongful discharge
from [the County] in accordance with the Agreement.” He also sought a writ of
mandamus requiring the County “to participate in binding arbitration of his wrongful
discharge from [the County] in accordance with the Agreement.” Further, Stines
alleged that he was entitled to an award of “actual damages” of “over $100,000 but
not more than $200,000[,]” as well as an award of reasonable and necessary
attorney’s fees under section 37.009 of the DJA.
6
The County filed an answer and a first amended answer, asserting various
defenses and affirmative defenses. The County also filed a plea to the jurisdiction in
response to Stines’s claims. In its plea to the jurisdiction, the County argued that it
is protected from suit under the doctrine of governmental immunity and that Stines’s
claims do not fall within any waiver of that immunity. The County also argued that
deputy constables are not “police officers” under FPERA, that deputy constables are
therefore not statutorily authorized to collectively bargain with the County, and that
the Agreement is void and unenforceable. The County attached no evidence to its
plea to the jurisdiction.
Stines filed a response to the County’s plea to the jurisdiction. In his response,
Stines argued that the County’s immunity from suit had been waived: (1) by
legislative consent in sections 174.008, 174.251, and 174.252 of the Texas Local
Government Code; (2) by the County’s act of entering into the Agreement, which
expressly states that it is made and entered into “in accordance with . . . the Fire and
Police Employee Relations Act of Texas (Chapter 174 of the Texas Local
Government Code)”; and (3) by the County’s acceptance of Stines’s services under
the Agreement. Further, construing the County’s argument regarding the validity of
the Agreement as a challenge to his standing to bring suit, Stines argued that he had
standing to enforce the terms of the Agreement against the County because deputy
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constables qualify as “police officers” under Chapter 174 of the Texas Local
Government Code and are therefore statutorily authorized to collectively bargain
under that statute. Stines attached a copy of the Agreement to his response in support
of his jurisdictional arguments.
Following a non-evidentiary hearing, the trial court denied the County’s plea
to the jurisdiction. The trial court issued two letters to counsel explaining the basis
for its decision. In the first letter, dated January 20, 2016, the trial court addressed
the County’s assertion of governmental immunity to suit. In that letter, the trial court
stated, in relevant part (footnotes and citations omitted):
Here, the plaintiff seeks a Court Order enforcing the arbitration
provision contained in the Collective Bargaining Agreement. Implicit
in that request would be a declaration that deputy constables qualify for
inclusion in Chapter 174 of the Local Government Code, which is a
legislative waiver itself.
Texas courts have recognized that a declaratory judgment action
can, in fact, be used to clarify the applicability of [a] specific statute.
In [Texas Education Agency v.] Leeper, the Texas Supreme
Court concluded that the legislature, by enacting Chapter 37 of the Tex.
Civ. Prac. Rem. Code (which specifically empowers courts to construe
statutes and requires the joinder of adverse parties) waived
governmental immunity for those purposes where the adverse party is
a governmental entity (including attorney’s fees).
The fact that plaintiff, likewise, pleads for recovery of damages
does not mandate dismissal of a proper declaratory judgment action.
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The plaintiff, in this matter, also seeks injunctive relief to require
the County to arbitrate. Chapter 37 Tex. Civ. Prac. Rem. Code,
likewise, authorizes a Court to grant “further relief” when necessary
and the two requests can be combined.
Accordingly, this Court will construe the plaintiff’s petition as
(a) seeking a declaratory judgment as to the applicability of Chapter
174 to deputy constables, (b) seeking injunctive relief as necessary and
proper and (c) requesting an award of attorney’s fees.
To that extent, the defendant’s Plea to the Jurisdiction is denied.
In the second letter, dated February 5, 2016, the trial court concluded that Stines had
standing to pursue his claims against the County because deputy constables are
“police officers” under Chapter 174 of the Texas Local Government Code and are
therefore authorized to collectively bargain with their employer.1
On February 5, 2016, the trial court entered a written order denying the
County’s plea to the jurisdiction. The trial court’s order states:
ON THIS DAY came on to be considered the Plea to the
Jurisdiction of Defendant, Jefferson County, Texas and the Court,
having considered the pleadings and arguments of counsel is of the
opinion that said Plea should in all things [be] DENIED. The Court
construes the Original Petition of Plaintiff, Victor Stines, as (1) seeking
a declaratory judgment as to the applicability of Chapter 174 of the
Texas Civil Practice and Remedies Code to deputy constables, (2)
1 In the second letter, the trial court also raised the issue of whether the County
was estopped from asserting its immunity from suit by contractually agreeing to be
bound by the waiver of immunity contained in Chapter 174 of the Texas Local
Government Code. However, the trial court’s letter ruling does not clearly indicate
that the trial court reached a conclusion with respect to that issue.
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seeking injunctive relief as necessary and proper, and (3) requesting an
award of attorney’s fees.
It is, therefore, ORDERED, ADJUDGED and DECREED that
the Plea to the Jurisdiction of Defendant, Jefferson County, Texas is
hereby DENIED.2
On February 5, 2016, the trial court also entered a second written order
granting Stines’s request for a declaratory judgment and request for writ of
mandamus. The second order contains findings of fact and conclusions of law
relating to the merits of Stines’s claims, and it orders the parties “to participate in
binding arbitration as required by the Agreement to determine all issues related to
the discipline of [Stines] by [the County].” Thereafter, the County appealed,
challenging both the trial court’s order denying the County’s plea to the jurisdiction
and the trial court’s order granting Stines’s request for a declaratory judgment and
request for writ of mandamus.3
2 Although the trial court’s order denying the County’s plea to the jurisdiction
refers to “Chapter 174 of the Texas Civil Practice and Remedies Code[,]” it appears
that this is a typographical error and that the trial court intended to refer to Chapter
174 of the Texas Local Government Code. The parties’ arguments in the trial court
and on appeal are based on Chapter 174 of the Texas Local Government Code.
Further, the Texas Civil Practice and Remedies Code, as it is currently enacted, does
not contain a chapter 174.
3 Although this Court has jurisdiction to review the trial court’s interlocutory
order denying the County’s plea to the jurisdiction, see Tex. Civ. Prac. & Rem. Code
Ann. § 51.014(a)(8) (West Supp. 2016), we question whether we have jurisdiction
to review the trial court’s order granting Stines’s requests for a declaratory judgment
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II. Effect of the Trial Court’s Letter Rulings
As a preliminary matter, we must determine the effect, if any, of the trial
court’s letter rulings. Both parties have treated the letter rulings as providing the
bases of the trial court’s order denying the County’s plea to the jurisdiction. This
treatment of the letter rulings is not unreasonable given that the language in the trial
court’s order denying the County’s plea appears to be taken, almost verbatim, from
the trial court’s January 20, 2016, letter ruling and the grounds stated in both letter
rulings are consistent with the trial court’s denial of the County’s plea to the
jurisdiction. However, we note that there is some authority holding that, in certain
and writ of mandamus. “Unless specifically authorized by statute, Texas appellate
courts only have jurisdiction to review final judgments.” Bison Bldg. Materials, Ltd.
v. Aldridge, 422 S.W.3d 582, 585 (Tex. 2012). The trial court’s order granting
Stines’s requests for a declaratory judgment and writ of mandamus is not a final
judgment or order because the trial court did not hold a conventional trial on the
merits and the order does not: (1) dispose of Stines’s claim against the County for
attorney’s fees under the DJA; or (2) contain language that states with unmistakable
clarity that it is a final judgment as to all claims and all parties. See Lehmann v. Har-
Con Corp., 39 S.W.3d 191, 205 (Tex. 2001); see also Farm Bureau Cty. Mut. Ins.
Co. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015) (per curiam); McNally v. Guevara,
52 S.W.3d 195, 196 (Tex. 2001) (per curiam). The County has not identified any
statute permitting an interlocutory appeal from the trial court’s order granting
Stines’s requests for a declaratory judgment and writ of mandamus. However,
because we conclude that the County’s governmental immunity from suit deprived
the trial court of subject matter jurisdiction over Stines’s claims, the trial court’s
order granting Stines’s requests for a declaratory judgment and writ of mandamus is
void, and we must vacate that order. See Houston Pipeline Co. v. Bank of Am., N.A.,
213 S.W.3d 418, 429 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
11
circumstances, a trial court’s prejudgment letter is not competent evidence of the
basis for its judgment. See Cherokee Water Co. v. Gregg Cty. Appraisal Dist., 801
S.W.2d 872 (Tex. 1990).
In Cherokee Water Co., the trial court sent counsel a prejudgment letter stating
that it had considered certain evidence in making its ruling. Id. at 878. However,
nothing in the formal findings of fact, filed after the judgment was signed, indicated
that the trial court had considered the evidence referenced in the prejudgment letter
for any purpose. Id. On appeal, Cherokee Water argued that the prejudgment letter
was a finding of fact and that the trial court had improperly considered the evidence
referred to in the prejudgment letter in making its ruling. Id. at 877–78. The Texas
Supreme Court, however, noted that the formal findings of fact and conclusions of
law did not state whether the trial court considered the evidence referenced in the
prejudgment letter and that there was other evidence that supported the trial court’s
decision. Id. at 878. Therefore, the Court explained, the trial court “could have
disregarded the evidence [referred to in the prejudgment letter] at the time the
judgment was actually signed.” Id. Accordingly, the Court concluded that the
prejudgment letter was not a finding of fact and was “not competent evidence of the
trial court’s basis for judgment.” Id.
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Unlike the trial court in Cherokee Water Co., the trial court in the present case
did not enter formal findings of fact and conclusions of law specifically relating to
its ruling on the County’s plea to the jurisdiction. Therefore, this case is factually
distinguishable from Cherokee Water Co. See In re Estate of Miller, 446 S.W.3d
445, 451–52 (Tex. App.—Tyler 2014, no pet.) (concluding that the trial court’s
failure to file formal findings of fact and conclusions of law was a factor
distinguishing the case from Cherokee Water Co.); Kendrick v. Garcia, 171 S.W.3d
698, 702 (Tex. App.—Eastland 2005, pet. denied) (distinguishing Cherokee Water
Co., in part, on the basis that the trial court in the case before it did not enter formal
findings of fact and conclusions of law). Further, as noted, the language in the trial
court’s order denying the County’s plea to the jurisdiction appears to be taken,
almost word for word, from the trial court’s January 20, 2016 letter ruling, and the
January 20, 2016 letter ruling provides an extensive explanation for that language.
In reviewing the record, we do not see any other applicable legal theories—other
than those stated in the trial court’s January 20, 2016 letter ruling—that would
support the specific statements contained in the trial court’s order denying the
County’s plea. See Long Term Care Pharm. All. v. Tex. Health & Human Servs.
Comm’n, 249 S.W.3d 471, 476–77 (Tex. App.—Eastland 2007, no pet.) (concluding
that it was appropriate to consider the trial court’s letter ruling as evidence of the
13
basis of the trial court’s ruling where both parties treated the trial court’s ruling as
having been based on the grounds stated in the letter and, after reviewing the record,
the appellate court did “not see any other applicable theory that would support the
trial court’s ruling”). Additionally, the trial court’s February 5, 2016 letter ruling sets
forth the trial court’s reasoning with respect to the remaining jurisdictional issue
raised by the parties but not addressed in the January 20, 2016 letter—namely,
Stines’s standing to bring suit—and the trial court’s conclusions regarding Stines’s
standing in that letter are entirely consistent with the trial court’s order denying the
County’s plea to the jurisdiction. Therefore, under the facts of this case, we treat the
trial court’s letter rulings as competent evidence of the trial court’s basis for denying
the County’s plea to the jurisdiction.
III. Plea to the Jurisdiction
In issues one through four, the County challenges the trial court’s denial of its
plea to the jurisdiction. Specifically, the County contends that the trial court should
have granted its plea because the County is entitled to governmental immunity with
respect to each of Stines’s claims and because Stines has failed to plead or prove a
valid waiver of that immunity. Additionally, the County argues that the trial court
lacked subject matter jurisdiction over Stines’s claims because Stines has no
standing to assert his claims in this case. We begin with the County’s arguments
14
regarding governmental immunity because they are dispositive of the issues in this
appeal.
A. Standard of Review
“A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for
lack of subject matter jurisdiction.” Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex.
2004). “Subject matter jurisdiction is essential to the authority of a court to resolve
a case.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).
Because the existence of subject matter jurisdiction is a question of law, we review
a trial court’s ruling on a plea to the jurisdiction de novo. Houston Belt & Terminal
Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016).
In determining whether a trial court has subject matter jurisdiction, our
analysis begins with the live pleadings. Heckman v. Williamson Cty., 369 S.W.3d
137, 150 (Tex. 2012). The pleader has the initial burden of alleging facts that
affirmatively demonstrate the trial court’s jurisdiction to hear the cause. Tex. Ass’n
of Bus., 852 S.W.2d at 446. Whether a pleader has alleged facts that affirmatively
demonstrate a trial court’s subject matter jurisdiction is a question of law
reviewed de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004). We construe the pleadings liberally, taking all factual allegations as
true, and look to the pleader’s intent. Heckman, 369 S.W.3d at 150; Miranda, 133
15
S.W.3d at 226. 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 we
should afford the plaintiff an opportunity to amend. Id. at 226–27. If, on the other
hand, the pleadings affirmatively negate the existence of jurisdiction, then a plea to
the jurisdiction may be granted without affording the plaintiff an opportunity to
amend. Id. at 227.
In reviewing a plea to the jurisdiction, we may also consider evidence
submitted by the parties and must do so when necessary to resolve the jurisdictional
issues raised. Heckman, 369 S.W.3d at 150; Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 555 (Tex. 2000). “We do not adjudicate the substance of the case but
instead determine whether a court has the power to reach the merits of the claim.”
Satterfield & Pontikes Constr., Inc. v. Tex. S. Univ., 472 S.W.3d 426, 430 (Tex.
App.—Houston [1st Dist.] 2015, pet. denied). “Our ultimate inquiry is whether the
particular facts presented, as determined by the foregoing review of the pleadings
and any evidence, affirmatively demonstrate a claim within the trial court’s
subject[]matter jurisdiction.” Tex. Dep’t of State Health Servs. v. Balquinta, 429
S.W.3d 726, 738 (Tex. App.—Austin 2014, pet. dism’d).
16
The County’s issues on appeal also involve matters of statutory construction,
which is a question of law that we review de novo. In re Mem’l Hermann Hosp. Sys.,
464 S.W.3d 686, 700 (Tex. 2015). Our primary “objective in construing a statute is
to give effect to the Legislature’s intent, which requires us to first look to the statute’s
plain language.” Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per
curiam). If the statute is clear and unambiguous, we must read the language
according to its common meaning, unless a different meaning is supplied or is
apparent from the context, or the plain meaning would lead to absurd results.
Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 389–90 (Tex. 2014).
Further, in ascertaining legislative intent, we may consider other matters, “including
the objective of the law, its history, and the consequences of a particular
construction.” State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) (citing Tex. Gov’t
Code Ann. § 311.023(1), (3), (5) (West 2013)); see also Tex. Gov’t Code Ann. §
312.005 (West 2013) (“In interpreting a statute, a court shall diligently attempt to
ascertain legislative intent and shall consider at all times the old law, the evil, and
the remedy.”).
Proper construction of a statute “requires reading the statute as a whole rather
than interpreting provisions in isolation.” In re Mem’l Hermann Hosp. Sys., 464
S.W.3d at 701. “[C]ourts should not give an undefined statutory term a meaning out
17
of harmony or inconsistent with other provisions, although it might be susceptible
of such a construction if standing alone.” Tex. Dep’t of Transp. v. Needham, 82
S.W.3d 314, 318 (Tex. 2002). Further, we must give effect to all of a statute’s words
and, if possible, not treat any statutory language as mere surplusage. Shumake, 199
S.W.3d at 287. “We presume the Legislature selected language in a statute with care
and that every word or phrase was used with a purpose in mind.” Tex. Lottery
Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010).
B. Governmental Immunity
Governmental immunity protects political subdivisions of the State, including
counties, from lawsuits for money damages, unless such immunity has been waived.
See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006); Wichita
Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). Governmental
immunity encompasses two distinct principles: immunity from liability and
immunity from suit. Lubbock Cty. Water Control & Imp. Dist. v. Church & Akin,
L.L.C., 442 S.W.3d 297, 300 (Tex. 2014). Immunity from liability bars enforcement
of a judgment against a governmental entity and is an affirmative defense. Brown &
Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015). Immunity from suit,
on the other hand, bars suit against the governmental entity altogether because it
deprives a court of subject matter jurisdiction. Church & Akin, 442 S.W.3d at 300.
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A governmental entity that enters into a contract waives its immunity from
liability, voluntarily binding itself like any other party to the terms of the agreement,
but it does not waive its immunity from suit. Id. Governmental entities retain
immunity from suit unless it has been waived. City of Houston v. Williams, 353
S.W.3d 128, 134 (Tex. 2011). Texas courts ordinarily defer to the Legislature to
waive sovereign immunity from suit because this allows the Legislature to protect
its policy making functions. Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex.
Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 326 (Tex.
2006). As the Texas Supreme Court has explained, “the Legislature is better suited
than the courts to weigh conflicting public policies associated with waiving
immunity and subjecting the government to increased liability, the burden of which
the public must bear.” Id. at 327. A legislative waiver of immunity may be in the
form of either a statute or a legislative resolution, but in either case the Legislature’s
intent to waive immunity must be expressed in “clear and unambiguous language.”
Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001).
“If the Legislature has not expressly waived immunity from suit, the State retains
such immunity even if its liability is not disputed.” Tex. Nat. Res. Conservation
Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002).
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C. Waiver of Governmental Immunity
The County argues that the trial court erred in denying its plea to the
jurisdiction because governmental immunity bars Stines’s claims. In response,
Stines contends that the trial court correctly determined that the DJA waives the
County’s immunity from suit for his claims in this case. Stines also argues that the
County’s immunity from suit was waived by: (1) legislative consent in sections
174.008, 174.251, and 174.252 of the Texas Local Government Code; (2) the
County’s act of entering into a contract that expressly states that it “is made and
entered into” in accordance with Chapter 174 of the Texas Local Government Code,
which, in turn, contains an express statutory waiver of immunity; and (3) the
County’s act of accepting benefits under the Agreement. We address each of these
arguments in turn.
1. Waiver by the Uniform Declaratory Judgment Act
In its second issue, the County contends that the trial court erred by concluding
that the DJA waives the County’s immunity from suit for Stines’s claims for
declaratory judgment, mandamus relief, and attorney’s fees. Specifically, the County
argues that the trial court improperly construed Stines’s claims as: “(1) seeking a
declaratory judgment as to the applicability of Chapter 174 of the [Texas Local
Government Code] to deputy constables, (2) seeking injunctive relief as necessary
20
and proper, and (3) requesting an award of attorney’s fees.” Further, the County
asserts that the trial court incorrectly concluded that Stines’s claims, as construed by
the trial court, fall within the DJA’s limited waiver of immunity. The County
contends that Stines’s claims, in actuality, seek nothing more than to enforce the
County’s performance under the Agreement. Accordingly, the County asserts that
Stines’s claims implicate the County’s governmental immunity and that the DJA
does not waive its immunity for such claims. Stines responds that the trial court
correctly determined that the DJA waives the County’s immunity from suit for his
claims in this case.
The DJA is a remedial statute designed “to settle and to afford relief from
uncertainty and insecurity with respect to rights, status, and other legal relations.”
Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) (West 2015). The DJA provides:
A person interested under a deed, will, written contract, or other
writings 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.
Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (West 2015). Although the DJA
waives immunity for certain claims, it is not a general waiver of immunity. Tex.
Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). Instead,
21
it is a procedural device for deciding cases that are already within a court’s
jurisdiction. Id. Further, the fact that a litigant couches its requested relief in terms
of a declaratory judgment does not alter the underlying nature of the suit. Id.
Consequently, governmental immunity will bar an otherwise proper DJA claim that
has the effect of establishing a right to relief against a governmental entity for which
the Legislature has not waived immunity. Id.
It is well-established, however, that certain types of claims brought under the
DJA do not implicate governmental immunity. For example, governmental
immunity does not apply to suits for declaratory, injunctive, or mandamus relief
against a state official to compel compliance with statutory or constitutional
provisions. City of El Paso v. Heinrich, 284 S.W.3d 366, 368–69, 372, 376–77 (Tex.
2009); see also Hamilton v. Washington, No. 03-11-00594-CV, 2014 WL 7458988,
at *5 (Tex. App.—Austin Dec. 23, 2014, no pet.) (mem. op.) (concluding that a
request for prospective injunctive or mandamus relief from acts that violate a statute
or constitutional provision may be pursued against the appropriate state officials in
their official capacity under the ultra vires exception to governmental immunity).
This type of suit, referred to as an “ultra vires” action, does not implicate
governmental immunity because it does “not attempt to exert control over the
state[,]” but instead “attempt[s] to reassert the control of the state.” Heinrich, 284
22
S.W.3d at 372. To fall within the ultra vires exception, the suit “must allege that a
state official acted without legal authority or failed to perform a purely ministerial
act, rather than attack the officer’s exercise of discretion.” Patel v. Tex. Dep’t of
Licensing & Regulation, 469 S.W.3d 69, 76 (Tex. 2015) (citing Heinrich, 284
S.W.3d at 372). Further, the suit must seek prospective relief and must be brought
against the state official in his or her official capacity, not against the governmental
entity itself. Heinrich, 284 S.W.3d at 373. The governmental entity retains its
immunity from suit for an ultra vires claim because the unlawful acts of officials are
not acts of the State. Patel, 469 S.W.3d at 76. Ultra vires claims that meet these
requirements “do not implicate sovereign immunity in the first instance and, thus,
are not barred even absent legislative consent.” Tex. Educ. Agency v. Am.
Youthworks, Inc., 496 S.W.3d 244, 256 (Tex. App.—Austin 2016, pet. filed).
On the other hand, governmental immunity applies to and protects political
subdivisions of the State against suits that attempt to control state action. Satterfield
& Pontikes Constr., Inc., 472 S.W.3d at 431; see also Houston Belt & Terminal Ry.
Co., 487 S.W.3d at 163–64 (“Governmental immunity is premised in part on
preventing suits that attempt to control state action by imposing liability on the
state.”); Multi-Cty. Water Supply Corp. v. City of Hamilton, 321 S.W.3d 905, 908
(Tex. App.—Houston [14th Dist.] 2010, pet. denied) (noting that governmental
23
immunity “‘protects a governmental unit from lawsuits that seek to control the unit’s
lawful actions by a final judgment made by a court of law’”) (quoting City of
Houston v. Houston Firefighters’ Relief & Ret. Fund, 196 S.W.3d 271, 277 (Tex.
App.—Houston [1st Dist.] 2006, no pet.)). Claims, including those for declaratory
judgment, that seek to establish a contract’s validity, to enforce performance under
a contract, or to impose contractual liabilities are claims that attempt to control state
action by imposing liability on the State. Satterfield & Pontikes Constr., Inc., 472
S.W.3d at 431; see also IT-Davy, 74 S.W.3d at 855–56; Multi-Cty. Water Supply
Corp., 321 S.W.3d at 908. Accordingly, such claims are barred by governmental
immunity and cannot be maintained absent a statutory waiver of immunity or
legislative consent to suit. IT-Davy, 74 S.W.3d at 856; Pharmserv, Inc. v. Tex.
Health & Human Servs. Comm’n, No. 03-13-00526-CV, 2015 WL 1612006, at *9
(Tex. App.—Austin Apr. 9, 2015, no pet.) (mem. op.).
Section 37.006(b) of the DJA contains a limited waiver of governmental
immunity, but it is limited to claims against governmental entities that challenge the
validity of an ordinance or statute. See Tex. Civ. Prac. & Rem. Code Ann. §
37.006(b) (West 2015); Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 622 (Tex.
2011); Heinrich, 284 S.W.3d at 373 n.6. The Texas Supreme Court has recognized
this waiver of immunity because the DJA requires a claimant to make the relevant
24
governmental entity a party to a declaratory judgment suit that challenges the
validity of an ordinance or statute. See Tex. Civ. Prac. & Rem. Code Ann. §
37.006(b) (“In any proceeding that involves the validity of a municipal ordinance or
franchise, the municipality must be made a party and is entitled to be heard, and if
the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney
general of the state must also be served with a copy of the proceeding and is entitled
to be heard.”); Heinrich, 284 S.W.3d at 373 n.6 (“For claims challenging the validity
of ordinances or statutes, . . . the [DJA] requires that the relevant governmental
entities be made parties, and thereby waives immunity.”).
a. Claim for declaratory judgment
The trial court construed Stines’s claim for declaratory judgment as seeking a
declaration “as to the applicability of Chapter 174 of the [Texas Local Government
Code] to deputy constables.” Based on this interpretation, the trial court concluded
that Stines’s declaratory judgment claim falls within the limited waiver of immunity
contained in section 37.006(b) of the DJA.4 We disagree with the trial court’s
4 In its January 20, 2016 letter ruling, the trial court relied on Texas Education
Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994), to conclude that the DJA waives the
County’s immunity from suit for Stines’s declaratory judgment claim. In Leeper, the
Texas Supreme Court held that section 37.006(b) of the DJA waives a governmental
entity’s immunity from suit for declaratory judgment claims challenging the validity
of an ordinance or statute or seeking construction of a legislative pronouncement.
893 S.W.2d at 446.
25
interpretation of Stines’s claim for declaratory relief, as well as its conclusion that
the DJA waives the County’s immunity from suit for that claim.
Section VI of Stines’s petition requests the following declaration:
In light of [the County’s] failure to adhere to the terms of the
Agreement, [Stines] seeks a declaratory judgment pursuant to the
Uniform Declaratory Judgment Acts, Chapter 37, Texas Civil Practice
& Remedies Code, declaring [Stines’s] right to compel [the County] to
participate in binding arbitration of his wrongful discharge from [the
County] in accordance with the Agreement.
The introductory paragraph of the petition describes this claim as “seeking the
construction of a Collective Bargaining Agreement.” Further, the petition’s prayer
for relief describes the declaratory relief requested as a declaration “that the
Agreement requires [the County] to participate in binding arbitration of [Stines’s]
wrongful discharge claims against [the County].” Stines’s petition contains no
reference to Chapter 174 of the Texas Local Government Code or any specific
provision thereunder. Even construing Stines’s pleadings liberally in his favor, we
conclude that his claim for a declaratory judgment does not seek a declaration
concerning the applicability of Chapter 174 of the Texas Local Government Code to
deputy constables, as the trial court concluded. Instead, it seeks a declaration of the
parties’ contractual rights and obligations under the Agreement for the purpose of
enforcing the County’s performance under the Agreement. See Town of Highland
Park v. Iron Crow Constr., Inc., 168 S.W.3d 313, 317 (Tex. App.—Dallas 2005, no
26
pet.) (concluding that a declaratory judgment action against a town to compel
arbitration pursuant to a contractual arbitration clause was a suit seeking to enforce
the town’s performance under a contract and, thus, implicated the town’s
governmental immunity). Because a claim against a governmental entity to enforce
performance under a contract effectively seeks to control state action, it is barred by
governmental immunity absent a statutory waiver of immunity or legislative consent
to suit. See IT-Davy, 74 S.W.3d at 856; Mustang Special Util. Dist. v. Providence
Village, 392 S.W.3d 311, 316 (Tex. App.—Fort Worth 2012, no pet.); Multi-Cty.
Water Supply Corp., 321 S.W.3d at 908; Town of Highland Park, 168 S.W.3d at
317.
Here, the trial court concluded that section 37.006(b) of the DJA waived the
County’s immunity from suit for Stines’s declaratory judgment claim. However, as
noted, the waiver of immunity contained in section 37.006(b) applies only to claims
challenging the validity of a statute or ordinance. Sefzik, 355 S.W.3d at 622;
Heinrich, 284 S.W.3d at 373 n.6; see also Tex. Civ. Prac. & Rem. Code Ann. §
37.006(b). It does not apply to claims, such as those alleged by Stines, to construe
or enforce performance under a contract. Accordingly, Stines did not plead facts
sufficient to demonstrate that his declaratory judgment claim falls within the DJA’s
limited waiver of immunity. We therefore conclude that the trial court erred in ruling
27
that the DJA waives the County’s immunity from suit for Stines’s declaratory
judgment claim in this case.
Further, even if we were to conclude that the trial court correctly construed
Stines’s declaratory judgment claim as seeking a declaratory judgment as to the
applicability of Chapter 174 of the Texas Local Government Code to deputy
constables, it would not affect our conclusion that the DJA does not waive the
County’s immunity from suit for that claim. The waiver of immunity contained in
section 37.006(b) of the DJA applies only to claims challenging the validity of a
statute or ordinance. Sefzik, 355 S.W.3d at 622; Heinrich, 284 S.W.3d at 373 n.6.
The DJA “does not waive the state’s sovereign immunity when the plaintiff seeks a
declaration of his or her rights under a statute or other law.” Sefzik, 355 S.W.3d at
621; see also Tex. Transp. Comm’n v. City of Jersey Village, 478 S.W.3d 869, 885
(Tex. App.—Houston [14th Dist.] 2015, pet. denied) (concluding that Sefzik
abrogated sub silentio the Texas Supreme Court’s holding in Leeper that section
37.006(b) of the DJA waives a governmental entity’s immunity from suit for claims
seeking a declaration of the parties’ rights under a statute or other law). A declaratory
judgment claim seeking a declaration regarding the applicability of Chapter 174 to
deputy constables does not challenge the validity of Chapter 174 or any other statute.
Instead, it seeks a declaration of Stines’s rights, if any, under Chapter 174.
28
Accordingly, we conclude that the DJA’s limited waiver of immunity does not apply
to Stines’s declaratory judgment claim, even if the trial court properly construed that
claim as seeking a declaration regarding the applicability of Chapter 174 to deputy
constables. See Sefzik, 355 S.W.3d at 621.
b. Claim for mandamus relief
The trial court also concluded that the DJA waives the County’s immunity
from suit with respect to Stines’s claim for mandamus relief. Specifically, the trial
court construed Stines’s mandamus claim as a request for ancillary relief under
section 37.011 of the DJA. The trial court then concluded that because such a claim
can be combined with Stines’s declaratory judgment claim, and because his
declaratory judgment claim falls within the waiver of immunity contained in section
37.006(b) of the DJA, section 37.006(b) also waives the County’s immunity from
suit for Stines’s mandamus claim. Again, we disagree with the trial court.
Stines’s petition seeks a writ of mandamus “requiring [the County] to
participate in binding arbitration of his wrongful discharge from [the County] in
accordance with the Agreement.” By its plain language, Stines’s mandamus claim
seeks to compel the County to perform its alleged contractual obligations under the
Agreement and, thus, seeks to control state action. See IT-Davy, 74 S.W.3d at 855–
56; Town of Highland Park, 168 S.W.3d at 317. It is therefore barred by
29
governmental immunity absent a statutory waiver of immunity or legislative consent
to suit. See, e.g., Tex. Music Library & Research Ctr. v. Tex. Dep’t of Transp., No.
13-13-00600-CV, 2014 WL 3802992, at *17 (Tex. App.—Corpus Christi July 31,
2014, pet. denied) (mem. op.) (concluding that governmental immunity barred claim
for mandamus relief because, inter alia, the essence of the plaintiff’s suit was “an
attempt to control state action by seeking to establish the existence and validity of a
contract . . . , enforce performance thereunder, and thereby impose liability on the
state”); Hinojosa v. Tarrant Cty., 355 S.W.3d 812, 816 (Tex. App.—Amarillo 2011,
no pet.) (explaining that absent a waiver, governmental immunity bars claims for
mandamus relief that seek “to control state action by imposing liability on the
State”); see also IT-Davy, 74 S.W.3d at 855–56.
At least one court of appeals has concluded that the DJA waives a
governmental entity’s immunity from suit for a claim for ancillary injunctive relief
under section 37.011 of the DJA when it is combined with a claim for a declaratory
judgment for which the DJA waives immunity. See Hays Cty. v. Hays Cty. Water
Planning P’ship, 106 S.W.3d 349, 359 (Tex. App.—Austin 2003, no pet.). However,
even assuming that this is a correct statement of the law and that the trial court
properly construed Stines’s mandamus claim as seeking ancillary relief under
section 37.011—questions we need not decide here—we conclude that this theory
30
of waiver does not apply so as to waive the County’s immunity for Stines’s
mandamus claim because, as we have already concluded, Stines’s claim for
declaratory judgment does not fall within the DJA’s limited waiver of immunity in
section 37.006(b). Further, Stines’s mandamus claim does not itself fall within
section 37.006(b)’s waiver of immunity because it is not a claim for a declaratory
judgment that challenges the validity of a statute or ordinance. See Sefzik, 355
S.W.3d at 622; Heinrich, 284 S.W.3d at 373 n.6; see also Tex. Civ. Prac. & Rem.
Code Ann. § 37.006(b). We therefore conclude that the trial court erred by
concluding that the DJA waives the County’s immunity from suit for Stines’s claim
for mandamus relief.
c. Claim for Attorney’s Fees
Stines’s petition also alleges a claim against the County for attorney’s fees
under section 37.009 of the DJA.5 The trial court determined that this claim is not
barred by governmental immunity because Stines asserted it in connection with a
5 On appeal, Stines argues that his claim for attorney’s fees has been brought
under section 174.252 of the Texas Local Government Code. However, Stines’s
petition expressly states that he is seeking “to recover reasonable and necessary
attorney’s fees that are equitable and just under Texas Civil Practice & Remedies
Code section 37.009 because this is a suit for declaratory relief.” Stines’s petition
contains no reference to section 174.252. Even construing Stines’s pleadings
liberally, we conclude that Stines’s petition alleges a claim for attorney’s fees under
section 37.009 of the DJA, not section 174.252 of the Local Government Code.
31
declaratory judgment claim that falls within the waiver of immunity contained in
section 37.006(b) of the DJA. In Texas Education Agency v. Leeper, the Texas
Supreme Court concluded that the DJA waives a governmental entity’s immunity
from suit for a claim for attorney’s fees under section 37.009 of the DJA when it is
asserted in connection with a claim for declaratory judgment that falls within the
waiver of immunity contained in section 37.006(b) of the DJA. 893 S.W.2d 432, 446
(Tex. 1994). However, as we have already explained, Stines’s claim for declaratory
relief does not fall within section 37.006(b)’s limited waiver of immunity because it
does not challenge the validity of an ordinance or statute. See Sefzik, 355 S.W.3d at
622; Heinrich, 284 S.W.3d at 373 n.6; see also Tex. Civ. Prac. & Rem. Code Ann.
§ 37.006(b). Therefore, we conclude that the trial court erred by concluding that the
DJA waives the County’s governmental immunity from suit for Stines’s claim for
attorney’s fees.6
6 In addition to his claims for declaratory judgment, mandamus relief, and
attorney’s fees, Stines’s pleadings also seek an award of “actual damages” against
the County. However, the trial court’s order denying the County’s plea to the
jurisdiction does not expressly address this claim. Instead, it construes Stines’s
petition as asserting claims for a declaratory judgment, injunctive relief, and
attorney’s fees and then states that the plea is denied. However, by construing
Stines’s petition as asserting only certain types of claims and then stating, based on
those claims, that the plea is denied, it appears that the trial court ruled that it only
had jurisdiction over the claims identified in the order and, thus, that it did not have
jurisdiction over Stines’s damages claim. Nevertheless, to the extent the absence of
language in the order expressly dismissing Stines’s damages claim can reasonably
32
In summary, Stines has not pleaded facts sufficient to show that the DJA
waives the County’s immunity from suit for the claims asserted in this case. See
Miranda, 133 S.W.3d at 227. We therefore conclude that the trial court erred by
denying the County’s plea to the jurisdiction on the basis that the DJA waived the
County’s immunity from suit. We sustain issue two.
2. Waiver by Chapter 174 of the Local Government Code
In his response to the County’s plea to the jurisdiction, Stines argued that
Chapter 174 of the Texas Local Government Code, titled the Fire and Police
be construed as a ruling by the trial court that it had jurisdiction over that claim, we
disagree with that ruling. Stines’s petition does not clearly allege the factual or legal
basis for his damages claim. The only references to that claim in his pleadings are in
section III of the petition, which states that Stines “seeks monetary relief of over
$100,000, but not more than $200,000,” and in the petition’s prayer for relief, which
states that Stines is seeking an award of “actual damages” from the trial court. On
appeal, Stines does not dispute that his damages claim implicates the County’s
governmental immunity. Instead, he asserts on appeal that the trial court has subject
matter jurisdiction over his damages claim because it seeks “back pay” or “lost
wages” under section 174.252 of the Texas Local Government Code and section
174.252 waives the County’s immunity for such a claim. However, Stines’s petition
contains no reference to section 174.252. It also does not allege any of the statutory
elements required for a claim under section 174.252. See Tex. Loc. Gov’t Code Ann.
§ 174.252 (West 2016). Therefore, even construing Stines’s petition liberally in his
favor, we conclude that it does not allege a claim for back pay under section 174.252.
Moreover, even if his petition did allege such a claim, we conclude, as discussed in
more detail below, that Chapter 174 does not apply to deputy constables and, thus,
does not waive immunity for Stines’s claims in this case. We therefore conclude that
Stines has failed to allege facts that affirmatively demonstrate the trial court’s
jurisdiction over his damages claim against the County. See Miranda, 133 S.W.3d
at 227.
33
Employee Relations Act (“FPERA”), waives the County’s immunity from suit for
his claims for declaratory judgment, mandamus relief, damages, and attorney’s fees
in this case. See Tex. Loc. Gov’t Code Ann. §§ 174.001–.253 (West 2016).
Specifically, Stines contends that sections 174.008, 174.251, and 174.252 of the
FPERA constitute express statutory waivers of immunity from suit, and that because
his claims fall within these statutory waivers, governmental immunity does not bar
his suit against the County. The County challenges this ground as part of its third
issue on appeal, asserting that the FPERA does not apply to deputy constables and
does not waive the County’s immunity from suit in this case.7
As a general rule, “Texas law prohibits a state political subdivision from
collective bargaining with public employees.” Dallas Area Rapid Transit v.
Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 661 (Tex. 2008).
7 The trial court did not specifically rule on whether sections 174.008, 174.251,
and 174.252 of the FPERA waive the County’s immunity from suit in this case.
However, we must affirm the trial court’s order denying the County’s plea to the
jurisdiction if it can be upheld on any legal theory that was properly before the trial
court. See Guar. Cty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986);
Carroll Indep. Sch. Dist. v. Nw. Indep. Sch. Dist., 245 S.W.3d 620, 625 n.19 (Tex.
App.—Fort Worth 2008, pet. denied). Because the County argued in its plea to the
jurisdiction that section 174.008 does not apply to Stines’s claims in this case, and
because Stines argued in his response to the County’s plea that sections 174.008,
174.251, and 174.252 operate to waive the County’s immunity from suit for his
claims, we will consider this ground in this appeal.
34
Specifically, section 617.002 of the Texas Government Code states that “[a]n official
of the state or of a political subdivision of the state may not enter into a collective
bargaining contract with a labor organization regarding wages, hours, or conditions
of employment of public employees.” Tex. Gov’t Code Ann. § 617.002(a) (West
2012). A contract that is entered into in violation of section 617.002(a) is void and
unenforceable. Id. § 617.002(b).
The FPERA, however, creates a limited exception to this general rule. See
City of San Antonio v. San Antonio Park Rangers Ass’n, 850 S.W.2d 189, 190 (Tex.
App.—San Antonio 1992, writ denied). The FPERA specifically permits “fire
fighters, police officers, or both . . . to organize and bargain collectively with their
public employer regarding compensation, hours, and other conditions of
employment” upon the adoption of the FPERA by a political subdivision to which
the FPERA applies.8 Tex. Loc. Gov’t Code Ann. § 174.023. Once a political
subdivision adopts the FPERA, a majority of firefighters of the fire department of
the political subdivision, or a majority of police officers of the police department of
8 Counties are political subdivisions to which the FPERA applies. Comm’rs
Court of El Paso Cty. v. El Paso Cty. Sheriff’s Deputies Ass’n, 620 S.W.2d 900,
901–02 (Tex. App.—El Paso 1981, writ ref’d n.r.e.). There is no contention on
appeal that the FPERA has not been adopted by the County’s governing body in
accordance with the terms of the FPERA. See Tex. Loc. Gov’t Code Ann. §§
174.051–.052 (West 2016).
35
the political subdivision, may select an association to function as its exclusive
bargaining agent. Id. §§ 174.101, 174.102. If the firefighters or police officers of a
political subdivision are represented by such an association, the public employer and
the association “shall bargain collectively[,]” and the association may enter into a
collective bargaining agreement with the public employer on behalf of the
firefighters or police officers. Id. § 174.105. If a public employer and an association
reach a collective bargaining agreement under the FPERA, the agreement “is binding
and enforceable against a public employer, an association, and a fire fighter or police
officer covered by the agreement.” Id. § 174.109.
If a public employer and an association reach an impasse in collective
bargaining or are unable to settle after the appropriate lawmaking body fails to
approve a contract reached through collective bargaining, the public employer or the
association may request arbitration to resolve the issues in dispute. Id. § 174.153. To
the extent both parties agree to arbitrate, an arbitration board selected in accordance
with the FPERA shall hold a hearing, make written findings, and render a written
arbitration award on the issues presented to the board. Id. §§ 174.154, 174.155,
174.158. If a majority decision of an arbitration board is supported by competent,
material, and substantial evidence, it is final and binding on the parties and may be
enforced in court by either party or by the arbitration board. Id. § 174.159. Because
36
the FPERA provides the right to collectively bargain and to participate in the
statute’s alternative dispute resolution procedures, the FPERA specifically prohibits
strikes and slowdowns by firefighters and police officers, as well as lockouts of
firefighters and police officers. Id. §§ 174.002, 174.202.
a. Waiver under sections 174.008 and 174.251
Stines argues that sections 174.008 and 174.251 of the FPERA expressly
waive the County’s immunity from suit in this case. Section 174.251 contains the
general judicial enforcement provision for the FPERA. See id. § 174.251 (entitled
“Judicial Enforcement Generally”). Specifically, section 174.251 provides that:
A district court for the judicial district in which a municipality is
located, on the application of a party aggrieved by an act or omission
of the other party that relates to the rights or duties under this chapter,
may issue a restraining order, temporary or permanent injunction,
contempt order, or other writ, order, or process appropriate to enforce
this chapter.
Id. To waive immunity from suit, a statute must contain a clear and unambiguous
expression of waiver. Rolling Plains Groundwater Conservation Dist. v. City of
Aspermont, 353 S.W.3d 756, 759 (Tex. 2011). Section 174.251 of the FPERA does
not itself state that it waives sovereign or governmental immunity and does not
specifically authorize a suit against a political subdivision or a public employer. See
Tex. Loc. Gov’t Code Ann. § 174.251; cf. Wichita Falls State Hosp., 106 S.W.3d at
697–98 (“[I]f the Legislature requires that the State be joined in a lawsuit for which
37
immunity would otherwise attach, the Legislature has intentionally waived the
State’s sovereign immunity.”). However, section 174.008 of the FPERA provides
that “[t]his chapter is binding and enforceable against the employing public
employer, and sovereign or governmental immunity from suit and liability is waived
only to the extent necessary to enforce this chapter against that employer.” Tex. Loc.
Gov’t Code Ann. §174.008. Construing sections 174.008 and 174.251 together, we
conclude that the FPERA clearly and unambiguously waives immunity from suit for
claims (1) brought under section 174.251 (2) to enforce the FPERA (3) against the
employing public employer. See id. §§ 174.008, 174.251.
For a claim to be brought under section 174.251, it must, among other things,
be asserted by “a party aggrieved by an act or omission of the other party that relates
to the rights or duties under [the FPERA.]” Id. § 174.251. Thus, Stines’s claims fall
within the waiver of immunity created by sections 174.008 and 174.251 only if they
complain about alleged acts or omissions of the County that relate to the rights or
duties under the FPERA. See id. We therefore examine whether the alleged acts or
omissions of the County that form the basis of Stines’s claims relate to the rights or
duties under the FPERA.
As noted, the FPERA authorizes only firefighters and police officers to
organize and bargain collectively with their public employer regarding
38
compensation, hours, and other conditions of employment.9 See id. § 174.023. The
FPERA defines the term “police officer” to mean “a paid employee who is sworn,
certified, and full-time, and who regularly serves in a professional law enforcement
capacity in the police department of a political subdivision.” Id. § 174.003(3). The
County contends that Stines’s claims do not relate to the rights or duties under the
FPERA because deputy constables are not “police officers” under the FPERA.
Specifically, the County argues that deputy constables do not satisfy the definition
of “police officer” under section 174.003(3) because they do not serve in “the police
department” of a county. The County contends that “the police department” of a
county has been held by Texas courts to be the sheriff’s office and that because
deputy constables serve in the constable’s office, and not in the sheriff’s office, they
do not satisfy the definition of “police officer” under the statute. Stines responds that
“the police department” of a county is not limited to the sheriff’s office and that
because a constable’s office is similar to a sheriff’s office in several respects, a
constable’s office should also be considered a “police department” of a county for
purposes of the FPERA. Both parties also argue that the legislative intent behind the
9 Stines does not contend that deputy constables are “fire fighters” under the
FPERA.
39
enactment of the FPERA, as stated in section 174.002 of the statute, supports their
respective interpretations of section 174.003(3).
Several Texas courts have determined that the sheriff’s office is “the police
department” of a county for purposes of the FPERA. For example, in
Commissioners’ Court of El Paso County v. El Paso County Sheriff’s Deputies
Association, the El Paso Court of Appeals held that deputy sheriffs meet the
definition of “policemen” under the FPERA and are thus “included and covered by
the Act.” 620 S.W.2d 900, 902 (Tex. App.—El Paso 1981, writ ref’d n.r.e.).
Thereafter, in Webb County v. Webb County Deputies Association, the San Antonio
Court of Appeals concluded that jailers and detention officers employed in the
sheriff’s office also qualify as “policemen” under the FPERA. 768 S.W.2d 953, 955
(Tex. App.—San Antonio 1989, no writ).
On the other hand, in City of San Antonio, the San Antonio Court of Appeals
concluded that city park rangers do not constitute “policemen” under the FPERA.
850 S.W.2d at 192–93. In that case, the court concluded that although city park
rangers regularly serve in a professional law enforcement capacity, they do not do
so in “the police department” of the city. Id. In reaching this conclusion, the court
reviewed the legislative history of the FPERA and determined that the Legislature
did not intend to include all protective service employees, but only firemen and city
40
policemen. Id. at 192. The court also explained that the word “the” in the phrase “in
the police department” connotes a singular entity, which, when applied to the city,
was the San Antonio Police Department. Id. at 192–93. The court concluded that
because the park rangers were employed in the San Antonio Park Rangers
Department, which was a separate entity from the San Antonio Police Department,
they did not serve “in the police department” of the city. Id. at 193.
The parties have cited, and we have located, only two cases that have
addressed whether deputy constables constitute “police officers” under the FPERA.
In Wolff v. Deputy Constables Association of Bexar County, the San Antonio Court
of Appeals concluded that deputy constables are not “police officers” under the
FPERA “because they do not serve in the ‘police department’ of the county or the
Sheriff’s Office.” 441 S.W.3d 362, 366 (Tex. App.—San Antonio 2013, no pet.).
The court explained that
[j]ust as the park rangers [in City of San Antonio] were employed by the
Parks Department of the City of San Antonio, and not by the City of
San Antonio Police Department, the Deputy Constables are employed
by the Constable’s Office of Bexar County, not by the “police
department” of Bexar County or the Sheriff’s Office.
Id. The court clarified that “all law enforcement agents considered ‘police officers’
under the Act, including deputy sheriffs, jailers, and detention officers, are employed
by the police department of the county or the Sheriff’s Office.” Id.
41
In Jefferson County Constables Association v. Jefferson County, however, the
Corpus Christi Court of Appeals expressly disagreed with the holding in Wolff and
concluded that deputy constables fall within the definition of “police officer” under
the FPERA. 512 S.W.3d 434 (Tex. App.—Corpus Christi 2016, pet. granted). In that
case, the court concluded that deputy constables are paid employees who are sworn,
certified, and full-time and who regularly serve in a professional law enforcement
capacity within the meaning of section 174.003(3). Id. at 439. Then, turning to the
question of whether deputy constables serve in “the police department” of a county,
the court specifically compared deputy constables to deputy sheriffs, which, it noted,
have been held by several Texas courts to be “police officers” under the FPERA. Id.
at 439-40. In making this comparison, the court noted that “[t]he offices of sheriff
and constable are both established and regulated by the Texas constitution and by
statute” and that the statutory provisions concerning sheriffs and constables are both
included under Subtitle B of the Texas Local Government Code, titled
“Commissioners Court and County Officers.” Id. at 440. The court also noted that,
by statute, deputy constables are required to “qualify in the manner provided for
deputy sheriffs” and that both deputy sheriffs and deputy constables “are empowered
to preserve the peace within the county.” Id. The court additionally noted that “[t]he
office of sheriff and constable each have the duty to execute all process and precepts
42
directed to their office by legal authority.” Id. The court then stated that “[g]iven the
liberal construction required by the FPERA, we find no meaningful distinction
between deputy sheriffs and deputy constables with respect to the FPERA’s
definition of ‘police officers.’” Id.
In reaching this conclusion, the court in Jefferson County Constables
Association specifically rejected the county’s argument that the “FPERA’s
requirement that police officers serve in ‘the police department of a political
subdivision’ means there can be only one qualifying police department for a political
subdivision.” Id. The court agreed “that this limiting language would exclude certain
peace officers who do not serve in what can be categorized as a ‘police department.’”
Id. (citing City of San Antonio, 850 S.W.2d at 192–93). However, the court explained
that it did “not interpret such language as operating to exclude deputy constables,
who work in a county law enforcement office established by the Texas
Constitution.” Id.
The County argues that the court in Wolff correctly decided that deputy
constables do not constitute “police officers” under the FPERA because they are not
employed in the sheriff’s office and, thus, do not serve in “the police department” of
a county. By contrast, Stines argues that the court in Jefferson County Constables
Association correctly decided that the “police department” of a county is not limited
43
to the sheriff’s office and that deputy constables also serve in “the police
department” of a county for purposes of the FPERA.
The resolution of this issue requires us to construe the meaning of the phrase
“in the police department of a political subdivision” in section 174.003(3) of the
FPERA. See Tex. Loc. Gov’t Code Ann. § 174.003(3). The FPERA does not define
the term “the police department” or the phrase “the police department of a political
subdivision.” See id. § 174.003. “Undefined terms in a statute are typically given
their ordinary meaning.” In re Hall, 286 S.W.3d 925, 928 (Tex. 2009). However,
courts may not give an undefined statutory term a meaning that is out of harmony or
inconsistent with other provisions in the statute. Id. at 928–29; Tex. Dep’t of Transp.
v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). Therefore, “if a different, more
limited, or precise definition is apparent from the term’s use in the context of the
statute, we apply that meaning.” In re Hall, 286 S.W.3d at 929.
The term “police department” is commonly defined as “a governmental
department concerned with the administration of the police force.” WEBSTER’S
THIRD INT’L DICTIONARY 1754 (2002). The common meaning of “police force,” in
turn, is “a professional body of trained officers and men entrusted by a government
with the maintenance of public peace and order, the enforcement of laws, and the
prevention and detection of crime.” Id. However, in reviewing the FPERA as a
44
whole, we conclude that a more limited or precise definition of the phrase “the police
department of a political subdivision” is apparent from the context of the statute. See
In re Hall, 286 S.W.3d at 929. Section 174.002, which contains the express
legislative policy behind the enactment of the FPERA, states:
(a) The policy of this state is that a political subdivision shall provide
its fire fighters and police officers with compensation and other
conditions of employment that are substantially the same as
compensation and conditions of employment prevailing in
comparable private sector employment.
(b) The policy of this state is that fire fighters and police officers,
like employees in the private sector, should have the right to
organize for collective bargaining, as collective bargaining is a
fair and practical method for determining compensation and
other conditions of employment. Denying fire fighters and police
officers the right to organize and bargain collectively would lead
to strife and unrest, consequently injuring the health, safety, and
welfare of the public.
(c) The health, safety, and welfare of the public demands that strikes,
lockouts, and work stoppages and slowdowns of fire fighters and
police officers be prohibited, and therefore it is the state’s duty
to make available reasonable alternatives to strikes by fire
fighters and police officers.
(d) Because of the essential and emergency nature of the public
service performed by fire fighters and police officers, a
reasonable alternative to strikes is a system of arbitration
conducted under adequate legislative standards. Another
reasonable alternative, if the parties fail to agree to arbitrate, is
judicial enforcement of the requirements of this chapter
regarding compensation and conditions of employment
applicable to fire fighters and police officers.
45
(e) With the right to strike prohibited, to maintain the high morale
of fire fighters and police officers and the efficient operation of
the departments in which they serve, alternative procedures must
be expeditious, effective, and binding.
Tex. Loc. Gov’t Code Ann. § 174.002. As section 174.002 makes clear, one of the
evils that the Legislature sought to remedy by enacting the FPERA was injury to the
“health, safety, and welfare of the public” caused by strikes, lockouts, work
stoppages, and slowdowns of firefighters and police officers. See id. The Legislature
determined that strikes by these types of public employees would be harmful to the
public “[b]ecause of the essential and emergency nature of the public services” that
they perform. See id. The Legislature sought to remedy this evil by enacting the
FPERA to prohibit strikes by firefighters and police officers and to provide those
employees with: (1) the right to organize and bargain collectively, and (2) reasonable
alternatives to strikes, including “a system of arbitration conducted under adequate
legislative standards” and judicial enforcement of the FPERA to the extent the
parties fail to agree to arbitrate. See id. Thus, construing section 174.003(3) in the
context of the statute as a whole, including the express legislative policies stated in
section 174.002, we conclude that the Legislature intended for the term “the police
department of a political subdivision” to refer only to the department of law
enforcement officers of a political subdivision who provide “essential and
emergency” services to the public and whose absence due to strikes, lockouts, work
46
stoppages, or slowdowns would cause injury to “the health, safety, and welfare of
the public.”
With this construction of section 174.003(3) in mind, we agree with other
courts that have concluded that the sheriff’s office is “the police department” of a
county for purposes of the FPERA. See Wolff, 441 S.W.3d at 366; see also Webb
Cty. Deputies Ass’n, 768 S.W.2d at 954–55; Comm’rs’ Court of El Paso Cty., 620
S.W.2d at 902. The sheriff of a county is considered to be the county’s “chief law
enforcement officer.” Aaron v. State, 275 S.W.2d 693, 697 (Tex. Crim. App. 1954).
Further, in addition to designating sheriffs and their deputies as peace officers, the
Texas Code of Criminal Procedure specifically states that the sheriff “shall be a
conservator of the peace in his county, and shall arrest all offenders against the laws
of the State, in his view or hearing, and take them before the proper court for
examination or trial.” Tex. Code Crim. Proc. Ann. arts. 2.12(1) (West Supp. 2016),
2.17 (West 2005). It also states that the sheriff “shall quell and suppress all assaults
and batteries, affrays, insurrections and unlawful assemblies” and “shall apprehend
and commit to jail all offenders, until an examination or trial can be had.” Id. art.
2.17. In addition, section 351.041 of the Texas Local Government Code provides
that “[t]he sheriff of each county is the keeper of the county jail” and “shall safely
keep all prisoners committed to the jail by a lawful authority, subject to an order of
47
the proper court.” Tex. Loc. Gov’t Code Ann. § 351.041(a) (West 2005). Although
“[t]he sheriff may appoint a jailer to operate the jail and meet the needs of the
prisoners . . . the sheriff shall continue to exercise supervision and control over the
jail.” Id. § 351.041(b). Additionally, the sheriff may, with the approval of the
commissioners court, employ guards to ensure the safekeeping of prisoners and the
security of the jail, and has the authority to summon guards of a sufficient number
to prevent an escape from jail or the rescue of a prisoner. See id. § 85.005(a), (b)
(West 2008); Tex. Code Crim. Proc. Ann. art. 16.21 (West 2015). Deputy sheriffs
are statutorily authorized to perform the acts and duties of the sheriff. See Tex. Loc.
Gov’t Code Ann. § 85.003(e) (West 2008); Tex. Code Crim. Proc. Ann. art. 2.20
(West 2005). Accordingly, we conclude that the statutory powers and duties of a
sheriff and his deputies make clear that the sheriff’s office is a department of law
enforcement officers of the county who provide “essential and emergency” services
to the public and whose absence due to strikes, lockouts, work stoppages, or
slowdowns would cause injury to “the health, safety, and welfare of the public.” See
Comm’rs’ Court of El Paso Cty., 620 S.W.2d at 902 (stating that the policy
provisions behind the enactment of the FPERA, as stated in the former version of
section 174.002, apply to deputy sheriffs).
48
We do not, however, agree with Stines’s contention that a county constable’s
office can also be considered “the police department” of a county for purposes of the
FPERA. While it is true that deputy constables are peace officers and serve, at least
in part, in a law enforcement capacity, see Tex. Code Crim. Proc. Ann. arts. 2.12(2)
(West Supp. 2016), 2.13 (West 2005); Wolff, 441 S.W.3d at 366, we conclude that a
county constable’s office is not a department of a county that provides the critical,
emergency services to the public that are contemplated by the FPERA. Chapter 86
of the Texas Local Government Code, which governs the office of the constable in
Texas, expressly sets forth the general powers and duties of the constable as follows:
(a) A constable shall execute and return as provided by law each
process, warrant, and precept that is directed to the constable and
is delivered by a lawful officer. Notices required by Section
24.005, Property Code, relating to eviction actions are process
for purposes of this section that may be executed by a constable.
(b) A constable may execute any civil or criminal process
throughout the county in which the constable’s precinct is
located and in other locations as provided by the Code of
Criminal Procedure or by any other law.
(c) A constable expressly authorized by statute to perform an act or
service, including the service of civil or criminal process,
citation, notice, warrant, subpoena, or writ, may perform the act
or service anywhere in the county in which the constable’s
precinct is located.
(d) Regardless of the Texas Rules of Civil Procedure, all civil
process may be served by a constable in the constable’s county
or in a county contiguous to the constable’s county, except that a
49
constable who is a party to or interested in the outcome of a suit
may not serve any process related to the suit. All civil process
served by a constable at any time or place is presumed to be
served in the constable’s official capacity if under the law the
constable may serve that process in the constable’s official
capacity. A constable may not under any circumstances retain a
fee paid for serving civil process in the constable’s official
capacity other than the constable’s regular salary or
compensation. Any fee paid to a constable for serving civil
process in the constable’s official capacity shall be deposited
with the county treasurer of the constable’s county.
(e) The constable shall attend each justice court held in the precinct.
Tex. Loc. Gov’t Code Ann. § 86.021 (West Supp. 2016). Section 86.011 of the Local
Government Code authorizes the appointment of deputy constables and provides that
deputy constables “handle the business of the constable’s office that originates in the
constable’s precinct.” Id. § 86.011(a) (West 2008). Thus, the general powers and
duties of constables and their deputies, as enumerated by the Legislature, involve
serving civil and criminal process and attending the justice courts held in their
precinct. See id. §§ 86.011, 86.021. We recognize that many constable departments
also provide valuable law enforcement services the same as those of sheriff
departments. However, the primary statutory duties of a constable, while
constituting valuable and important services to the county and the public, are not the
type of critical emergency services to the public encompassed by the narrow
definition enacted by the Legislature when it created the FPERA.
50
A strike, lockout, work stoppage, or slowdown by deputy constables would
not likely cause the severity of injury to “the health, safety, and welfare of the
public[,]” as contemplated by the FPERA. The law provides for others, besides
deputy constables, to serve civil and criminal process in Texas. See, e.g., Tex. Code
Crim. Proc. Ann. arts. 2.12 (identifying thirty-five categories of persons who
constitute a “peace officer”), 2.13(b)(2) (providing that peace officers “shall . . .
execute all lawful process issued to the officer by any magistrate or court”); Tex.
Loc. Gov’t Code Ann. § 85.021(a) (West 2008) (providing that “[t]he sheriff shall
execute all process and precepts directed to the sheriff by legal authority and shall
return the process or precept to the proper court on or before the date the process or
precept is returnable”), § 86.021 (providing that the powers and duties relating to the
execution and return of civil and criminal process as stated in section 86.021 apply
to the constable himself); Tex. R. Civ. P. 103 (providing that civil process may be
served by (1) any sheriff or constable or other person authorized by law, (2) any
person authorized by law or by written order of the court who is not less than
eighteen years of age, (3) any person certified under order of the Supreme Court, or
(4) by the clerk of the court in which the case is pending, if service by registered or
certified mail or service by publication is requested); Tex. R. Civ. P. 176.5
(providing that “[a] subpoena may be served at any place within the State of Texas
51
by any sheriff or constable of the State of Texas, or any person who is not a party
and is 18 years of age or older”). Additionally, should deputy constables strike, the
county sheriff’s office will continue to provide emergency law enforcement services
to the public on behalf of the county, as well as other essential public services,
including operation and supervision of the county jail. See Tex. Code Crim. Proc.
Ann. § 2.17; Tex. Loc. Gov’t Code Ann. § 351.041. Thus, unlike the effect of a strike
by the employees of the sheriff’s office or the fire department of a county, a strike
by deputy constables would not cause the emergency services of the county to cease
to function as contemplated by the FPERA.
Although the court in Jefferson County Constables Association concluded that
deputy constables serve in “the police department” of a county for purposes of the
FPERA, the court in that case did not analyze the definition of the term “police
officer” in the context of the entire statute, including the stated policy provisions
behind the enactment of the FPERA as set forth in section 174.002. 512 S.W.3d 434,
440. As the Texas Supreme Court has explained, however, courts must “determine
legislative intent by reading the statute as a whole and interpreting the legislation to
give effect to the entire act and not just its isolated portions.” Tex. Nat. Res.
Conservation Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368, 378 (Tex. 2005).
We therefore decline Stines’s invitation to adopt the reasoning of the court in
52
Jefferson County Constables Association as it relates to whether deputy constables
constitute “police officers” under the FPERA.
We conclude that deputy constables do not serve “in the police department of
a political subdivision” and, thus, are not “police officers” under section 174.003(3)
of the FPERA, because: (1) a county constable’s office does not provide the critical,
emergency services to the public that are contemplated by the FPERA; and (2) a
strike, lockout, work stoppage, or slowdown by deputy constables would not likely
cause injury to “the health, safety, and welfare of the public.” See Tex. Loc. Gov’t
Code Ann. §§ 174.002, 174.003(3). It follows, then, that because deputy constables
are not “police officers” under the FPERA, they have no right under the FPERA to
organize, bargain collectively, or enter into a collective bargaining agreement with
their public employer. See id. § 174.023; Tex. Gov’t Code Ann. § 617.002.
Accordingly, Stines’s claims in this case, which complain about the County’s
performance under the Agreement, do not complain about acts or omissions “that
relate[] to the rights or duties under [the FPERA,]” as required for a claim to be
brought under section 174.251 and to fall within the waiver of immunity created by
sections 174.008 and 174.251 of the FPERA. See Tex. Loc. Gov’t Code Ann. §§
174.008, 174.251. We therefore conclude that the waiver of immunity created by
sections 174.008 and 174.251 does not apply to Stines’s claims in this case.
53
b. Waiver under section 174.252
Stines also contends that section 174.252 of the FPERA constitutes an express
statutory waiver of the County’s immunity from suit in this case. Section 174.252,
titled “Judicial Enforcement When Public Employer Declines Arbitration[,]”
provides:
(a) If an association requests arbitration as provided by Subchapter
E and a public employer refuses to engage in arbitration, on the
application of the association, a district court for the judicial
district in which a majority of affected employees reside may
enforce the requirements of Section 174.021 as to any unsettled
issue relating to compensation or other conditions of
employment of fire fighters, police officers, or both.
(b) If the court finds that the public employer has violated Section
174.021, the court shall:
(1) order the public employer to make the affected employees
whole as to the employees’ past losses;
(2) declare the compensation or other conditions of
employment required by Section 174.021 for the period,
not to exceed one year, as to which the parties are
bargaining; and
(3) award the association reasonable attorney’s fees.
(c) The court costs of an action under this section, including costs
for a master if one is appointed, shall be taxed to the public
employer.
Id. § 174.252. However, even assuming that section 174.252—either by its own
terms or in combination with section 174.008—constitutes a waiver of a public
54
employer’s immunity from suit for claims brought under section 174.252 to enforce
the FPERA against a public employer, we conclude that it does not apply to Stines’s
claims in this case.
As we have already explained, the FPERA does not apply to deputy constables
because they do not meet the definition of “police officer” under section 174.003(3).
See id. § 174.003(3). However, even if we were to assume that deputy constables are
“police officers” under the statute, we would nevertheless conclude that section
174.252 does not waive the County’s immunity from suit for Stines’s claims in this
case. Section 174.252, by its express terms, applies only when an association has
requested arbitration “as provided by Subchapter E” of the FPERA and the public
employer refuses to arbitrate. Id. § 174.252(a). Subchapter E’s arbitration provisions
apply only to arbitration for collective bargaining impasses; they do not apply to
arbitration of disputes pursuant to the contractual terms of a fully-negotiated
collective bargaining agreement. Id. §§ 174.153, 174.156; see also Jefferson Cty.
Constables Ass’n, 512 S.W.3d at 441, n.3 (concluding that “Chapter 174’s
arbitration provisions apply only to arbitration for collective bargaining impasses”
and not to arbitration under a fully-negotiated collective bargaining agreement); City
of Laredo v. Mojica, 399 S.W.3d 190, 194 (Tex. App.—San Antonio 2012, pet.
55
denied) (concluding that the “FPERA applies only to arbitration for collective
bargaining impasses”).
Further, a plain reading of section 174.252 unambiguously indicates that it
applies only to claims: (1) brought by an association (2) against a public employer
(3) to enforce the requirements of Section 174.021 as to any unsettled issue relating
to compensation or other conditions of employment of firefighters, police officers,
or both. See Tex. Loc. Gov’t Code Ann. § 174.252. Section 174.021 of the FPERA
provides:
A political subdivision that employs fire fighters, police officers, or
both, shall provide those employees with compensation and other
conditions of employment that are:
(1) substantially equal to compensation and other conditions of
employment that prevail in comparable employment in the
private sector; and
(2) based on prevailing private sector compensation and conditions
of employment in the labor market area in other jobs that require
the same or similar skills, ability, and training and may be
performed under the same or similar conditions.
Id. § 174.021.
Here, the claims asserted against the County have been brought by Stines, not
an association, as required under section 174.252. See id. § 174.252(a). Further,
although Stines alleges in his petition that the County has refused to participate in
arbitration, he does not contend that the County has refused to participate in
56
arbitration “as provided by Subchapter E” of the FPERA—i.e., arbitration of a
collective bargaining impasse. Instead, he alleges that the County has refused to
participate in arbitration of his wrongful discharge claim pursuant to the contractual
terms of a fully negotiated collective bargaining agreement. Finally, even construing
Stines’s pleadings liberally, Stines’s claims do not seek to enforce the requirements
of section 174.021. In other words, Stines does not allege that the County has failed
to provide him or other “police officers” with compensation or other conditions of
employment that are: (1) “substantially equal to compensation and other conditions
of employment that prevail in comparable employment in the private sector”; or (2)
“based on prevailing private sector compensation and conditions of employment in
the labor market area in other jobs that require the same or similar skills, ability, and
training and may be performed under the same or similar conditions.” See Tex. Loc.
Gov’t Code Ann. § 174.021. Instead, Stines alleges that the County failed to
participate in arbitration of his wrongful discharge claim as required by the terms of
the Agreement. Accordingly, to the extent section 174.252 can be construed as a
limited statutory waiver of immunity from suit for claims brought under section
174.252 against a public employer, we conclude that it does not waive the County’s
immunity from suit in this case.
57
Because we conclude that Stines has failed to allege facts that affirmatively
demonstrate that the FPERA waives the County’s immunity from suit for Stines’s
claims in this case, we sustain the portion of the County’s third issue that challenges
this ground. See Miranda, 133 S.W.3d at 227.
3. Waiver by Contract
Stines also argued in his response to the County’s plea to the jurisdiction that
certain language in the Agreement expressly waives the County’s immunity from
suit for his claims in this case. Stines bases this argument on the following provision
in the “Preamble” of the Agreement:
This Agreement is made and entered into by and between the County
of Jefferson and the Precincts 1, 2, 4, 6, 7, and 8 Constables of said
County, in the State of Texas, and the Jefferson County Deputy
Constables Association, hereinafter referred to as the “Association,” in
accordance with all applicable state and federal statutes, including the
Fire and Police Employee Relations Act of Texas (Chapter 174 of the
Texas Local Government Code).
(Emphasis added). Stines argues that by including this language in the Agreement,
the parties adopted or incorporated Chapter 174 by reference into the Agreement and
that the County thereby contractually agreed to be bound by Chapter 174, including
its statutory waivers of immunity. The County challenges this ground as part of its
fourth issue on appeal, asserting that in the absence of express legislative
58
authorization, as is the case here, a County cannot contract to waive its immunity
from suit.10
As we have already concluded, the FPERA does not apply to deputy
constables because they do not meet the definition of “police officer” under section
174.003(3), and the FPERA does not waive the County’s immunity from suit for
Stines’s claims. See Tex. Loc. Gov’t Code Ann. § 174.003(3). However, to the extent
Stines argues that the parties had the ability to voluntarily agree by contract to be
bound by the FPERA, even though the FPERA would not otherwise apply to them,
and that by doing so, the County contractually agreed to waive its immunity from
suit to the extent permitted by the FPERA, we disagree.
A governmental entity that enters into a contract waives its immunity from
liability on the contract, but it does not waive its immunity from suit. Tooke v. City
of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Instead, a waiver of immunity from suit
10 The trial court did not rule on the grounds raised in the County’s fourth
issue—namely, (1) whether that the County’s waived its immunity from suit by
entering into the Agreement, which expressly states that it is made and entered into
in accordance with the FPERA; and (2) whether the County waived its immunity
from suit by accepting benefits under the Agreement. However, as noted, we must
affirm the trial court’s order denying the County’s plea to the jurisdiction if it can be
upheld on any legal theory that was properly before the trial court. See Reyna, 709
S.W.2d at 648; Carroll Indep. Sch. Dist., 245 S.W.3d at 625 n.19. Stines raised both
of these theories of waiver in his response to the County’s plea to the jurisdiction.
Therefore, we will consider these grounds here.
59
for a claimed breach of contract requires a clear and unambiguous expression of the
Legislature.11 Travis Cty. v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248 (Tex. 2002),
superseded by statute on other grounds, Tex. Loc. Gov’t Code Ann. § 262.007 (West
2016), as recognized in Tooke, 197 S.W.3d at 342; IT-Davy, 74 S.W.3d at 858; see
also Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 660 (Tex. 2008)
(quoting IT-Davy, 74 S.W.3d at 853) (“‘[I]t is the Legislature’s sole province to
waive or abrogate sovereign immunity.’”). As noted, the Legislature may waive a
governmental entity’s immunity from suit either by statute or legislative resolution.
Little-Tex, 39 S.W.3d at 594; Potter Cty. v. Tuckness, 308 S.W.3d 425, 430 (Tex.
App.—Amarillo 2010, no pet.).
Even if the language in the Agreement on which Stines relies could properly
be construed as an agreement between the parties to waive the County’s immunity
from suit, it does not constitute a waiver of immunity by the Legislature. Only the
Legislature, not contracting parties, may waive a governmental entity’s immunity
from suit. See IT-Davy, 74 S.W.3d at 858 (rejecting argument that an administrative
11 Although Stines has alleged claims for declaratory and mandamus relief, as
opposed to a claim for breach of contract, he essentially alleges that the County
breached the terms of the Agreement by refusing to participate in arbitration of his
wrongful discharge claim, and seeks to enforce the County’s performance of its
alleged contractual obligations by compelling the County to submit to arbitration
under the terms of the Agreement.
60
agent could waive a state agency’s sovereign immunity by agreeing to contractual
terms requiring all claims or disputes related to the contract to be decided by
arbitration or in court and explaining that “[o]nly the Legislature can waive
sovereign immunity from suit in a breach-of-contract claim”); City of New Braunfels
v. Carowest Land, Ltd., 432 S.W.3d 501, 521 (Tex. App.—Austin 2014, no pet.)
(citing IT-Davy, 74 S.W.3d at 857–58 and noting that the Texas Supreme Court “has
squarely rejected the notion that a governmental entity with authority to enter
contracts, or an agent acting on its behalf, can contractually waive immunity from
suit, as Carowest insists occurred here”); City of Willow Park, Tex. v. E.S. & C.M.,
Inc., 424 S.W.3d 702, 709 (Tex. App.—Fort Worth 2014, pet. denied) (concluding
that only the Legislature can waive immunity from suit and that parties to a contract
cannot, between themselves, voluntarily agree (1) to waive an entity’s immunity
from suit or, conversely, (2) to abrogate the Legislature’s express intention to waive
such immunity); Webb Cty. v. Khaledi Props., Ltd., No. 04-12-00251-CV, 2013 WL
3871060, at *2 (Tex. App.—San Antonio July 24, 2013, no pet.) (mem. op.)
(“Immunity from a breach of contract suit may be waived only by the Legislature,
not by the contracting parties.”); Labrado v. Univ. of Tex. at El Paso, No. 03-10-
00009-CV, 2012 WL 43385, at *3 (Tex. App.—Austin Jan. 5, 2012, no pet.) (mem.
op.) (“Only the Legislature, not contracting parties, may waive a governmental unit’s
61
immunity.”); Tuckness, 308 S.W.3d at 430 (“Absent express legislative
authorization, the County could not contract to waive its immunity from suit.”).
Because the language in the Agreement does not constitute a valid waiver of the
County’s immunity from suit, we sustain the portion of the County’s fourth issue
that challenges this ground.
4. Waiver by Conduct
Stines also argued in his response to the County’s plea to the jurisdiction that
the County waived its immunity from suit through its conduct. Specifically, Stines
contends that the County waived its immunity by accepting Stines’s services as a
deputy constable and then declining to honor its own obligations under the
Agreement. The County challenges this ground in the remaining portion of its fourth
issue, asserting that “[t]here is no waiver-by-conduct exception to sovereign
immunity for a breach of contract.”
The so-called “waiver-by-conduct” exception to immunity from suit
originated in a footnote to the Texas Supreme Court’s majority opinion in Federal
Sign v. Texas Southern University, 951 S.W.2d 401, 408 n.1 (Tex. 1997). In that
case, the Court considered whether the State waives its immunity from suit by
entering into a contract with a private citizen for goods and services. Fed. Sign, 951
S.W.2d at 404, 408. The Court concluded that in such circumstances, the State
62
waives its immunity from liability only. Id. The State’s act of contracting does not
waive its immunity from suit, and thus an individual must obtain legislative consent
before it may sue the State on a breach of contract claim. Id. In a footnote, however,
the Court suggested that “[t]here may be other circumstances where the State may
waive its immunity by conduct other than simply executing a contract so that it is
not always immune from suit when it contracts.” Id. at 408 n.1.
However, in the years since its decision in Federal Sign, the Texas Supreme
Court has repeatedly declined requests to recognize a waiver-by-conduct exception
in a breach-of-contract suit against a governmental entity, and has emphasized that
waivers of immunity generally should be left to the Legislature. See Sharyland
Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 414 (Tex. 2011); Tex. A&M
Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007); Catalina Dev., Inc. v. Cty.
of El Paso, 121 S.W.3d 704, 705–06 (Tex. 2003); IT-Davy, 74 S.W.3d at 857; Little-
Tex, 39 S.W.3d at 598. As such, the Court “has never gone further than its suggestion
in Federal Sign that such a waiver might conceivably occur under some set of facts
it has not yet seen.” Carowest Land, 432 S.W.3d at 521. The Court has also expressly
rejected the notion that a governmental entity waives its immunity from suit merely
by accepting benefits under a contract. Koseoglu, 233 S.W.3d at 840; Tex. A&M
Univ.-Kingsville v. Lawson, 87 S.W.3d 518, 520–21 (Tex. 2002); Little-Tex, 39
63
S.W.3d at 598. Similarly, this Court has repeatedly rejected requests to recognize a
waiver-by-conduct exception in the context of a breach-of-contract claim, as well as
other types of claims. See City of Conroe v. TPProperty LLC, 480 S.W.3d 545, 564–
65 (Tex. App.—Beaumont 2015, no pet.) (refusing to apply waiver-by-conduct
exception to breach of contract claims); Hardin Cty. Sheriff’s Dep’t v. Smith, 290
S.W.3d 550, 554 (Tex. App.—Beaumont 2009, no pet.) (noting that the Texas
Supreme Court has declined to create a waiver-by-conduct exception to the
sovereign immunity rule and refusing to apply such an exception in a tort suit
involving claims for negligence, gross negligence, and intentional infliction of
emotional distress); City of Roman Forest v. Stockman, 141 S.W.3d 805, 813 (Tex.
App.—Beaumont 2004, no pet.) (explaining that “[i]mmunity from suit is not
waived merely by accepting some of the benefits of a contract” and rejecting request
to apply waiver-by-conduct exception to breach-of-contract claim).
We note, however, that at least one intermediate appellate court has concluded
that a governmental entity may waive its immunity from suit by its conduct in
“extraordinary factual circumstances.” Tex. S. Univ. v. State St. Bank & Tr. Co., 212
S.W.3d 893, 907 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). The facts in
State Street were as follows: (1) after soliciting bids for a comprehensive energy
conservation project, Texas Southern University (“TSU”) notified Viron, a
64
contractor, that the university’s board of regents had approved an agreement for
Viron to audit the university’s energy system; (2) university officials instructed
Viron to commence work on the audit; (3) TSU’s general counsel notified a TSU
official that the energy audit agreement was “acceptable for final execution,” and
the university president executed the energy audit agreement; (4) Viron completed
the energy audit; (5) as a result of the audit’s findings, Viron submitted a proposal
to TSU offering to commence work on six energy conservation projects on the TSU
campus; (6) the TSU Board of Regents authorized approval of the projects, and the
university’s president executed an agreement requiring Viron to provide services
and equipment to TSU in connection with the projects; (7) TSU and Viron also
entered into an equipment lease agreement to finance the purchase of equipment
needed to complete the projects; and (8) in a letter attached to the equipment lease
agreement, TSU’s general counsel represented to Viron that the equipment lease
agreement was “duly authorized by all necessary action on the part[] of [TSU]” and
that the equipment lease agreement was “legal, valid, and binding” and “enforceable
in accordance with its terms.” Id. at 897–99, 907–08. After Viron provided
approximately $13 million in equipment and services to TSU in connection with the
projects, TSU claimed that its agreements with Viron were not valid and refused to
make any payments due. Id. Thereafter, Viron filed suit, and TSU attempted to
65
invoke sovereign immunity to bar Viron’s claims. Id. at 897. Viron responded that
the facts of the case were sufficient to justify a finding that TSU waived its immunity
from suit by its conduct. Id. at 908. In addition, Viron argued that the injustice was
even worse because the case also included an additional fact that did not appear in
any previous case: “The government officials lured Viron into the [equipment lease
agreement] with false promises that the contract would be valid and enforceable,
then disclaimed any obligation on the contract by taking the position that the contract
was not valid after all.” Id. The court of appeals agreed with Viron and concluded
that under the extraordinary factual circumstances of that case, TSU had waived its
immunity from suit based on its conduct. Id.
Even if we were to assume that such an exception exists, the facts alleged in
Stines’s pleadings do not warrant its application in this case. Unlike the plaintiff in
State Street, Stines does not allege that he, or the Deputy Constables Association on
his behalf, was misled or “lured” into the Agreement by false promises that the
County never intended to fulfill. See MBP Corp. v. Bd. of Trs. of Galveston Wharves,
297 S.W.3d 483, 493 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Further,
Stines does not allege that he has conferred millions of dollars’ worth of benefits
upon the County, only to be denied any return consideration under the Agreement.
See City of Freeport v. Briarwood Holdings, L.L.C., No. 01-11-01108-CV, 2013 WL
66
1136576, at *4 (Tex. App.—Houston [1st Dist.] Mar. 19, 2013, no pet.) (mem. op.).
To the contrary, the only conduct of which Stines complains is the County’s refusal
to participate in arbitration of his wrongful discharge claim under the terms of the
Agreement. He does not allege that the County failed or refused to perform other
obligations under the Agreement, including compensating him for his services in
accordance with the Agreement’s terms during the time he was employed by the
County. We therefore conclude that this case is distinguishable from State Street and
does not involve the type of “extraordinary factual circumstances” that existed in
that case.
Further, since State Street was decided, the Texas Supreme Court has
reaffirmed its stance against a waiver-by-conduct exception in governmental
immunity cases. See Sharyland Water Supply Corp., 354 S.W.3d at 414. In
Sharyland, the Court stated that “[c]reating a waiver-by-conduct exception would
force the State to expend its resources to litigate the waiver-by-conduct issue before
enjoying sovereign immunity’s protections—and this would defeat many of the
doctrine’s underlying policies.” Id. (quoting IT-Davy, 74 S.W.3d at 857). The Court
also noted that “the Legislature [has] enacted comprehensive schemes that allow
contracting parties to resolve breach-of-contract claims against the government” and
that “[b]y providing these avenues of redress, the Legislature has balanced
67
competing private and public interests—a balance that would be thwarted if we
allowed waiver-by-conduct exceptions in breach-of-contract actions against the
government.” Id. In light of the Texas Supreme Court’s opinion in Sharyland and
the specific facts of this case, we conclude that the County did not waive its
immunity from suit by its conduct in this case. We therefore sustain the remaining
portion of the County’s fourth issue.
Because we sustain issue two, the portion of issue three that addresses
governmental immunity, and issue four, we also sustain issue one, in which the
County contends generally that Stines failed to plead and prove a valid waiver of the
County’s immunity from suit.12
IV. Conclusion
We conclude that each of Stines’s claims against the County is barred by
governmental immunity. Accordingly, we reverse the trial court’s order denying the
County’s plea to the jurisdiction, vacate the trial court’s order granting Stines’s
12 Because we conclude that governmental immunity bars Stines’s claims, it
is unnecessary to address the second jurisdictional issue raised by the County (and
the remaining portion of the County’s third issue)—namely, whether Stines lacks
standing to assert his claims in this case. See Tex. R. App. P. 47.1; Multi-Cty. Water
Supply Corp., 321 S.W.3d at 909 n.4. Further, because the trial court lacked
jurisdiction over Stines’s claims in this case, its order granting Stines’s request for a
declaratory judgment and request for a writ of mandamus was void. See Houston
Pipeline Co., 213 S.W.3d at 429. We therefore do not reach the County’s fifth issue,
which complains about one of the trial court’s fact findings in that order.
68
request for a declaratory judgment and request for writ of mandamus, and render
judgment granting the County’s plea to the jurisdiction and dismissing the trial
court’s cause for want of jurisdiction.
REVERSED AND RENDERED.
_____________________________
CHARLES KREGER
Justice
Submitted on June 16, 2016
Opinion Delivered June 22, 2017
Before McKeithen, C.J., Kreger and Johnson, JJ.
1
DISSENTING OPINION
I respectfully disagree with the majority on the central question in this case:
whether Chapter 174 of the Texas Local Government Code, titled the Fire and Police
Employee Relations Act (“FPERA”), applies to Stines, a Jefferson County deputy
constable. See Tex. Loc. Gov’t Code Ann. §§ 174.001-174.253 (West 2016). The
FPERA defines the term “police officer” to mean “a paid employee who is sworn,
certified, and full-time, and who regularly serves in a professional law enforcement
capacity in the police department of a political subdivision.” Id. § 174.003(3). I
conclude that Stines meets that definition.
In Jefferson County Constables Association v. Jefferson County, 512 S.W.3d
434 (Tex. App.—Corpus Christi 2016, pet. granted) (a case transferred to the Corpus
Christi Court of Appeals from our Court pursuant to docket equalization), the Corpus
Christi Court of Appeals concluded that the Jefferson County deputy constables are
paid employees who are sworn, certified, and full-time and who regularly serve in a
professional law enforcement capacity within the meaning of section 174.003(3). Id.
at 439. As noted by the Corpus Christi Court, the offices of constable and sheriff,
“are both established and regulated by the Texas constitution and by statute.” Id. at
440; see Tex. Const. art. V, §§ 18 (constables), 23 (sheriffs); Tex. Loc. Gov’t. Code
Ann. §§ 85.001-85.023 (sheriffs) and 86.001-86.025 (constables) (West 2008 &
2
Supp. 2016). The statutory provisions concerning sheriffs and constables are both
included under Subtitle B of the Texas Local Government Code, titled
“Commissioners Court and County Officers.” Id. Deputy constables must “qualify
in the manner provided for deputy sheriffs[]” and both deputy sheriffs and deputy
constables are statutorily designated as “peace officers.” Tex. Loc. Gov’t Code Ann.
§ 86.011; Tex. Code Crim. Proc. Ann. art. 2.12(1), (2) (West Supp. 2016). As peace
officers, deputy constables are empowered to preserve the peace within their
jurisdiction, execute lawful process, give notice of all offenses committed within
their jurisdiction, and arrest offenders, without a warrant, where authorized by law.
Id. art. 2.13 (West 2005). The Corpus Christi Court concluded that “[g]iven the
liberal construction required by the FPERA, we find no meaningful distinction
between deputy sheriffs and deputy constables with respect to the FPERA’s
definition of ‘police officers.’” Jefferson Cty. Constables Ass’n, 512 S.W.3d at 440.
In reaching this conclusion, the Corpus Christi Court specifically rejected Jefferson
County’s argument that the “FPERA’s requirement that police officers serve in ‘the
police department of a political subdivision’ means there can be only one qualifying
police department for a political subdivision.” Id. I agree with the Corpus Christi
Court.
3
The majority implicitly disagrees with the conclusion reached by the Corpus
Christi Court of Appeals and adopts a result that aligns with the result reached by
the San Antonio Court of Appeals decision in Wolff v. Deputy Constables
Association of Bexar County, 441 S.W.3d 362, 366 (Tex. App.—San Antonio 2013,
no pet.). But, the majority does not appear to adopt the reasoning of the San Antonio
Court. In Wolff, the San Antonio Court based its decision in large part upon the
Legislature’s inclusion of “the” in the phrase “the police department of a political
subdivision,” concluding that the Bexar County deputy constables are employed by
constables and not by the “‘police department’ of Bexar County or the Sheriff’s
Office.” Id. at 366.
The majority takes a different approach than the San Antonio Court, but
reaches the same result. The majority states:
The resolution of this issue requires us to construe the meaning of the
phrase “in the police department of a political subdivision” in section
174.003(3) of the FPERA. See Tex. Loc. Gov’t Code Ann.
§ 174.003(3). The FPERA does not define the term “the police
department” or the phrase “the police department of a political
subdivision.” See id. § 174.003.
According to the majority, a “more limited or precise definition of the phrase ‘the
police department of a political subdivision’ is apparent from the context of the
statute[]” and the legislative purpose stated within the statute. The majority reasons
that based upon the express purpose of the statute, the Legislature intended
4
for the term “the police department of a political subdivision” to refer
only to the department of law enforcement officers of a political
subdivision who provide “essential and emergency” services to the
public and whose absence due to strikes, lockouts, work stoppages, or
slowdowns would cause injury to “the health, safety, and welfare of the
public.”
Notably, the majority does not conclude that the statute is ambiguous.
Furthermore, neither party in the case at bar argues that the statute is ambiguous, nor
did either party present any evidence to the trial court regarding the “primary duties”
of Stine or of Jefferson County constables or deputy constables, nor did they provide
any evidence to the trial court of whether or not deputy constables in Jefferson
County provide “essential and emergency services” to the public. The majority
concludes that the “primary statutory duties of a constable . . . are not the type of
critical emergency services to the public encompassed by the narrow definition
enacted by the Legislature when it created the FPERA.” I find no support in the
record before us for the majority’s conclusion, nor do I find the majority’s suggested
“more limited or precise definition of the phrase ‘the police department of a political
subdivision’” to be evident from the plain language in the statute. Additionally,
while it may not have been the intention of the majority to do so, I believe the
approach taken by the majority fails to acknowledge the important civil and criminal
law enforcement functions served by the dedicated men and women who serve as
deputy constables—peace officers who are “sworn, certified, and full-time, and []
5
who regularly serve[] in a professional law enforcement capacity[]” for the people
of Jefferson County, Texas.13 See Jefferson Cty. Constables Ass’n, 512 S.W.3d at
439 (quoting Tex. Loc. Gov’t Code Ann. § 174.003).
Accordingly, I respectfully disagree with the majority. I would affirm the trial
court’s ruling denying the plea to the jurisdiction filed by Jefferson County.14
13 According to the Justices of the Peace and Constables Association, the first
Constable was appointed in 1823. See Justices of the Peace & Constables
Association of Texas, Inc., https:www.jpca.com/history (last visited June 8, 2017).
Constables and their deputies provide valuable services that include acting as court
officers in Justice of the Peace Courts, serving process and warrants, and performing
various law enforcement functions. They are granted Constitutional authority to
enforce civil and criminal laws. See Tex. Const. art. V, § 18 (creating the office of
constable). For example, as a peace officer, a deputy constable may be authorized to
preserve the peace within the county; to make arrests for felonies or offenses against
the public peace that are committed in the officer’s view; to enforce state traffic
regulations; or to assist other law enforcement officers under interlocal agreements.
See Tex. Code Crim. Proc. Ann. arts. 2.13(a) (West 2005), 14.01 (West 2015); Tex.
Transp. Code Ann. § 701.002 (West 2011); Tex. Loc. Gov’t Code Ann. §§ 362.001-
362.003 (West 2005). The day-to-day activities of a particular Constable’s office
may vary depending upon the county and the precinct within each county, as well as
the particular circumstances. See generally Lorie Rubenser & Gloria Priddy,
Constables, Marshals, and More: Forgotten Offices in Texas Law Enforcement 40-
41(2011).
14 In its supplemental briefing with this Court, the Appellee argued that the
Corpus Christi Court of Appeals has specifically concluded that the collective
bargaining agreement between the Jefferson County Constables Association and
Jefferson County is covered by the FPERA. See Jefferson Cty. Constables Ass’n,
512 S.W.3d at 440. Appellee further argues that “it has now been fully litigated and
determined that the collective bargaining rights outlined in Texas Local Government
Code chapter 174 apply to deputy constables such as Appellee.” Jefferson County,
the Appellant in the case at bar (the Appellee in Jefferson County Constables
Association), did not file any supplemental briefing with this Court after the Corpus
6
_________________________
LEANNE JOHNSON
Justice
Submitted on June 16, 2016
Dissent Delivered June 22, 2017
Christi Court issued its opinion, although we note that the Supreme Court has
granted discretionary review of the Corpus Christi case. To the extent that
Appellee’s supplemental briefing is attempting to make an argument for issue
preclusion or collateral estoppel, I need not reach that issue because in my opinion
it would not grant Stines any greater relief on the controlling issue. Nevertheless, I
also note that collateral estoppel is an affirmative defense. See Calabrian Corp. v.
All. Specialty Chems., Inc., 418 S.W.3d 154, 158 (Tex. App.—Houston [14th Dist.]
2013, no pet.). The Jefferson Cty. Constables Ass’n case was on appeal at the time
Jefferson County filed its appeal in this case. As a general rule, a judgment is final
for the purposes of issue and claim preclusion despite the fact that an appeal may be
pending. See Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6 (Tex. 1986). The
judgment from the Corpus Christi Court of Appeals was rendered three months after
the notice of appeal was filed by Jefferson County in the Stines case. Issue preclusion
or collateral estoppel is a judicially created doctrine designed to promote judicial
efficiency, to protect parties from multiple lawsuits, and to prevent inconsistent
judgments by preventing relitigation of an ultimate issue. See Tex. Dep’t of Pub.
Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001). “When an issue of fact or law is
actually litigated and determined by a valid and final judgment, and the
determination is essential to the judgment, the determination is conclusive in a
subsequent action between the parties, whether on the same or a different claim.”
Restatement (Second) of Judgments § 27 (1982); see also John G. & Marie Stella
Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002); Barr v.
Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992)
(“Issue preclusion, or collateral estoppel, prevents relitigation of particular issues
already resolved in a prior suit.”). Whether collateral estoppel is applicable is a
question of law. McRae Expl. & Prod., Inc. v. Reserve Petroleum Co., 962 S.W.2d
676, 680 (Tex. App.—Waco 1998, pet. denied). Because I conclude that Stines, as a
Jefferson County deputy constable, is covered by the Fire and Police Employee
Relations Act, I need not consider the effect of collateral estoppel or issue preclusion
on Appellant’s arguments. See Tex. R. App. P. 47.1.

Outcome: REVERSED AND RENDERED.

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