Bryan Woodard and Lonny Yarbrough v. Dallas County, Texas and Bill Gipson

• Court: Court of Appeals of Texas
• Decided: November 22, 2024
• Docket: 05-22-01141-CV
• Status: Published

Opinion

Affirmed and Opinion Filed November 22, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01141-CV

BRYAN WOODARD AND LONNY YARBROUGH, Appellants V. DALLAS COUNTY, TEXAS AND BILL GIPSON, Appellees

On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-19270

MEMORANDUM OPINION Before Justices Goldstein, Garcia, and Miskel Opinion by Justice Goldstein This is an appeal from the trial court’s grant of appellees Dallas County and

Bill Gipson’s plea to the jurisdiction on grounds of sovereign or governmental

immunity. In six issues, appellants Bryan Woodard and Lonny Yarbrough (the

Deputies) contend that the trial court erred (1) by dismissing their claims without

affording them an opportunity to replead; (2) by dismissing their non-monetary

claims as those sought prospective rather than retrospective relief and therefore not

barred by sovereign or governmental immunity; (3) by dismissing their claims to

compel grievance hearings in violation of the Texas Constitution, state statutes and Dallas County ordinances; (4) by dismissing their claims against Gipson because

they alleged his conduct was ultra vires; (5) by deciding fact questions in its

dismissal determination where it should have considered only the sufficiency of their

pleadings; and (6) because its findings of fact preclude certain implied findings. We

affirm in this memorandum opinion. See TEX. R. APP. P. 47.2(a); 47.4.1

BACKGROUND

The facts are well-known to the parties and were set forth in large part in our

opinion conditionally granting Dallas County and Gipson’s petition for writ of

mandamus. See In re Dallas Cnty., No. 05-21-01144-CV, 2022 WL 1467987, at *1

(Tex. App.—Dallas May 10, 2022, orig. proceeding) (mem. op.). Briefly, the

Deputies’ positions as Dallas County deputy constables were terminated in 2018

when, upon being elected as Dallas County Constable for Precinct 2, Gipson

declined to swear them in for his term. The Deputies attempted to appeal their

adverse employment decision but were denied a grievance hearing. They sued Dallas

County and Gipson for wrongful termination and violations of enumerated

1 To the extent either party relies upon, addresses or asserts sovereign immunity, we note to clarify that Dallas County is a political subdivision of the State and Gipson is a public official of the County. “Courts often use the terms sovereign immunity and governmental immunity interchangeably. However, they involve two distinct concepts. Sovereign immunity refers to the State’s immunity from suit and liability. In addition to protecting the State from liability, it also protects the various divisions of state government, including agencies, boards, hospitals, and universities. Governmental immunity, on the other hand, protects political subdivisions of the State, including counties, cities, and school districts.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003) (citations omitted). We will endeavor not to conflate the pertinent immunities that protects distinct entities here but note that the analysis regarding consent to, or waiver of immunity from, suit is essentially the same for either sovereign or governmental immunity requiring identification of the source, nature and scope of the immunity—whether constitutional, common law or statutory—and any application or legislative abrogation of same. –2– constitutional rights. Dallas County and Gipson filed separate pleas to the

jurisdiction, asserting that the Deputies’ claims were barred by governmental

immunity. The Deputies then filed their first amended petition and served discovery

requests on Dallas County and Gipson. Dallas County and Gipson objected to, and

filed a motion to quash, the discovery requests. The Deputies filed a motion to

compel, which the trial court granted. Dallas County and Gipson then filed a petition

for writ of mandamus from that order.

On mandamus review, we considered whether the trial court erred in granting

additional discovery before proceeding to a hearing on Dallas County’s and

Gipson’s pleas to the jurisdiction. See id. at *3. We concluded that it did, reasoning:

Based on our review, the pleas to the jurisdiction constitute a pleadings- based jurisdictional challenge because they do not dispute any of the alleged facts relating to the decisions to not swear in Woodard and Yarbrough as deputy constables following the election and to deny them a grievance hearing.

Id. We concluded that the trial court “abused its discretion by compelling any

discovery before considering the pleas to the jurisdiction.” Id. (emphasis in original).

We directed the trial court to vacate its order compelling discovery within fifteen

days of our opinion and to hear the pending pleas to the jurisdiction at its earliest

opportunity. Id. at *4.

About two weeks before we issued our mandamus opinion, Dallas County and

Gipson scheduled their pleas to the jurisdiction for a hearing to take place on July

21, 2022. On July 14, the Deputies filed their second amended petition. The

–3– following day, Dallas County and Gipson filed a supplement to their pleas to the

jurisdiction. The trial court heard the pleas to the jurisdiction on July 21 and, the

next day, entered an order granting the pleas and dismissing all of the Deputies’

claims with prejudice. On July 26, the Deputies filed a request for findings of fact

and conclusions of law. The trial court granted their request and entered its findings

of fact and conclusions of law on August 12. This appeal followed.

DISCUSSION

The Deputies raise six issues on appeal contending in five issues that the trial

court erred by dismissing the Deputies’:

claims without allowing [the Deputies] any opportunity to amend their pleadings after a ruling on the jurisdictional plea, when there was no finding that amendment was futile, nor that [the Deputies’] pleading affirmatively negated jurisdiction.

claims in equity, which are not barred by sovereign immunity or government immunity. [The Deputies’] claims for declaratory judgment, mandamus relief, injunctive relief, and for reinstatement, are not claims for “retrospective relief”, nor are they “damage claims for violation[s] of the Texas Constitution”, as [the Deputies] expressly pled they “are not seeking money damages.”

claims to compel grievance hearings, because the undisputed facts demonstrate that neither Woodward or Yarborough was allowed a grievance hearing, while both the Deputies allege a constitutional right to petition the government; statutory grievance rights under TEXAS GOVERNMENT CODE § 617.005; and departmental grievance rights under Dallas County ordinance.

declaratory judgment claims against [Gipson] based on [Gipson and Dallas County’s] argument that “[the Deputies] do not allege ultra vires acts by [Gipson]”, when the Deputies alleged “[Gipson’s] actions and omissions were ultra vires actions and omissions.”

–4– claims by deciding fact questions, when the only issue for the trial court to decide was the sufficiency of the pleadings.

In the sixth issue the Deputies contend that the trial court’s findings of fact preclude

any implied findings in this case on appeal.

I. APPLICABLE LAW

Governmental immunity protects political subdivisions of the State, including

counties, from suit unless the State consents. Empower Texans, Inc. v. Dallas Cnty.,

648 S.W.3d 664, 669 (Tex. App.—Dallas 2022, pet. denied) (citing Reata Constr.

Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006) (op. on reh’g)).

Governmental immunity from suit deprives the trial court of subject-matter

jurisdiction over claims against governmental entities unless the party suing the

governmental entity establishes the State’s consent to suit. Id. at 669–70. Such

consent to suit must generally be found in the actions of the legislature. Id. at 670.

Any purported statutory waiver of immunity should be strictly construed in favor of

retention of immunity. Id. (citing PHI, Inc. v. Juvenile Justice Dep’t, 593 S.W.3d

296, 303 (Tex. 2019)). Therefore, a statute shall not be construed as a waiver of

immunity unless the waiver is effected by clear and unambiguous language. Id.

Governmental immunity also bars suits against government officers. Houston

Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 157 (Tex. 2016). An

exception exists, however, for officers acting outside the scope of their authority. Id.

at 161. To fall within this so called “ultra vires” exception, “a suit must not complain

of a government officer’s exercise of discretion, but rather must allege, and –5– ultimately prove, that the officer acted without legal authority or failed to perform a

purely ministerial act.” Id.

II. STANDARD OF REVIEW

Immunity from suit is properly asserted when the State files a plea to the

jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.

2004). A plea to the jurisdiction is a dilatory plea that contests the trial court’s

authority to determine the subject matter of the cause of action. Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review a trial court’s ruling on a

plea to the jurisdiction de novo. Miranda, 133 S.W.3d at 228; City of Plano v. Hatch,

584 S.W.3d 891, 895 (Tex. App.—Dallas 2019, no pet.). In performing this review,

we do not look to the merits of the case but consider only the pleadings and evidence

relevant to the jurisdictional inquiry. City of Seagoville v. Lytle, 227 S.W.3d 401,

408 (Tex. App.—Dallas 2007, no pet.).

To defeat a plea to the jurisdiction, the plaintiff suing the state or its officers

must plead facts that, if true, affirmatively demonstrate that sovereign or

governmental immunity either does not apply or has been waived. Matzen v.

McLane, 659 S.W.3d 381, 388 (Tex. 2021) (sovereign immunity); see also Perez v.

Turner, 653 S.W.3d 191, 198 (Tex. 2022) (governmental immunity). When a plea

to the jurisdiction challenges the pleadings, we must determine if the pleader has

alleged sufficient facts to demonstrate affirmatively the trial court’s jurisdiction to

hear the cause. Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 927

–6– (Tex. 2015); Hatch, 584 S.W.3d at 895. To make this determination we look to the

pleader’s intent, construe the pleadings liberally in favor of jurisdiction, and accept

the allegations in the pleadings as true. Hatch, 584 S.W.3d at 895. This jurisdictional

inquiry “touches the merits,” because courts lack jurisdiction over facially invalid

claims. Abbott v. Mexican American Legislative Caucus, 647 S.W.3d 681, 699 (Tex.

2022). While we must construe the allegations in favor of the plaintiff, we are not

bound by legal conclusions. Brown v. Daniels, No. 05-20-00579-CV, 2021 WL

1997060, at *7 (Tex. App.—Dallas May 19, 2021, no pet.) (mem. op.).

Where the pleadings do not allege sufficient facts to demonstrate affirmatively

the trial court’s jurisdiction but do not affirmatively demonstrate an incurable

jurisdictional defect, the issue is one of pleading sufficiency, and the plaintiffs

should be given an opportunity to amend. Miranda, 133 S.W.3d at 226–27. If the

pleadings affirmatively negate the existence of jurisdiction, then a plea to the

jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.

Id. at 227. We review a trial court’s decision to deny an amendment to the pleadings

for abuse of discretion. Coastal Habitat All. v. Pub. Util. Comm’n of Tex., 294

S.W.3d 276, 283 (Tex. App.—Austin 2009, no pet.) (citing State Bar of Tex. v.

Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994)).

–7– III. DISCUSSION

A. Issue 1: Opportunity to Replead

In their first issue, the Deputies contend that the trial court erred by ruling on

jurisdiction without giving them an opportunity to replead. They argue that they

should have had that opportunity because the trial court did not expressly find, in its

findings of fact and conclusions of law, that repleading would have been futile or

that their live pleadings affirmatively negated jurisdiction. Dallas County and

Gipson do not address the absence of these findings and conclusions, but instead

respond that repleading was unnecessary because their challenges to jurisdiction

were “based on the nature of the claims as opposed to the facts pled in support of

those claims.” Dallas County and Gipson also contend that the Deputies’ request for

an opportunity to replead is barred by the “law of the case” doctrine.

We begin with the law-of-the-case doctrine, which is defined as that principle

under which questions of law decided on appeal to a court of last resort will govern

the case throughout its subsequent stages. Hudson v. Wakefield, 711 S.W.2d 628,

630 (Tex. 1986). The doctrine does not apply, however, when the issues or facts

presented at successive appeals are not substantially the same. Renate Nixdorf GmbH

& Co. KG v. TRA Midland Properties, LLC, No. 05-17-00577-CV, 2019 WL 92038,

at *7 (Tex. App.—Dallas Jan. 3, 2019, pet. denied) (mem. op.). Here, Dallas County

and Gipson argue that our determination in In re Dallas County—namely, that their

pleas to the jurisdiction constitute pleadings-based jurisdictional challenges—is

–8– binding in this appeal. However, our determination in the mandamus proceeding was

based on the Deputies’ pleadings and pleas to the jurisdiction that were on file at that

time. Once we issued our opinion, the Deputies amended their pleadings without

leave of court and over no objection. Dallas County and Gipson then filed a

supplement to their pleas to the jurisdiction. Therefore, the law-of-the-case doctrine

does not apply, and we must determine anew whether Dallas County and Gipson’s

supplemented pleas to the jurisdiction raise pleadings-based challenges to the

Deputies’ second amended petition.

We conclude that they do. As we explained in In re Dallas County, “[a] plea

to the jurisdiction may be presented as either an attack on the sufficiency of the

pleadings, or an evidentiary attack on the existence of jurisdictional facts.” In re

Dallas Cnty., 2022 WL 1467987, at *3 (citing Miranda, 133 S.W.3d at 226–27).

When a plea to the jurisdiction challenges the pleadings, we consider whether the

pleader has met his or her burden of pleading facts that affirmatively demonstrate

the court’s jurisdiction to hear the cause. Id. (citing Tex. Ass’n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). We construe the pleadings liberally

in favor of the pleader and look to the pleader’s intent. Id. (citing Tex. Ass’n of Bus.,

852 S.W.2d at 446). If the pleadings fail to contain sufficient facts that affirmatively

demonstrate the trial court’s jurisdiction but also do not affirmatively demonstrate

an incurable defect, the issue is one of pleading sufficiency and the plaintiffs should

be given the opportunity to amend. Id. (citing Miranda, 133 S.W.3d at 226–27). If

–9– the pleadings affirmatively negate the existence of jurisdiction, then a plea to the

jurisdiction may be granted without giving the plaintiffs an opportunity to amend.

Id. (citing Miranda 133 S.W.3d at 227).

The allegations in this case did not materially change between the first and

second amended petitions. The Deputies continue to allege that they were terminated

when Gipson declined to swear them in once he took office. They further allege that

they were denied their timely requested grievance hearings by Gipson and Dallas

County. They claim that they were thus forced to obtain employment elsewhere at

lower wages. Gipson and Dallas County do not dispute these factual allegations, but

rather argue that the Deputies were not entitled to grievance hearings and that their

claims are barred by governmental immunity.

We again conclude that Dallas County’s and Gipson’s pleas to the jurisdiction

constitute pleadings-based challenges to the trial court’s jurisdiction. See id. Because

the jurisdictional challenges are based solely on the sufficiency of the pleadings and

those pleadings affirmatively negate jurisdiction, as further set forth below, in

conjunction with no disputed fact issues, the trial court did not abuse its discretion

in failing to grant the Deputies an opportunity to replead.

B. Issues 2 and 3: Dismissal of Claims

In their second issue, the Deputies complain that the trial court erred in

dismissing their equitable and declaratory claims because such claims sought

prospective, not retrospective relief. In their third issue, they complain that the trial

–10– court erred in dismissing their claims to compel grievance hearings because they

properly alleged violations of their constitutional right to petition and their statutory

grievance rights. In response, Dallas County and Gipson eschew any discussion of

prospective or retrospective relief and instead argue simply that the Deputies failed

to carry their burden to plead waiver of immunity for their equitable- and

declaratory-relief claims because they have not pleaded viable constitutional claims.

1. Prospective Versus Retrospective Relief

We address prospective versus retrospective relief as raised in the trial court

despite the silence of Gipson and Dallas County on the issue. In City of El Paso v.

Heinrich, the supreme expounded on the differences between claims for

retrospective and prospective relief where immunity is implicated. See 284 S.W.3d

366, 373 (Tex. 2009). There, a widow of a deceased police officer sued after

discovering a reduction in the monthly payout of her survival benefits under her

husband’s pension plan. See id. at 369. The widow sued the city, the pension fund,

the fund’s board of trustees, and individual members of the board, alleging that they

violated the statute governing the pension fund by reducing her benefits

retroactively. Id. She sought declaratory relief and an injunction restoring her

benefits to the previous amount. Id. On appeal, the widow conceded that her claims

against the city, the pension fund, and the board of trustees were subject to

governmental immunity. She argued, however, that her ultra vires claims against the

board members were not barred because she alleged that the reduction in her benefits

–11– were unauthorized by law and she sought only equitable and injunctive relief as

opposed to money damages. Id. at 370.

The supreme court explained that, as a general rule, the state is immune from

suit unless it waives such immunity. See id. An exception applies, however, for suits

against state officials who act without legal or statutory authority (i.e., who engage

in ultra vires conduct). See id. But even if the plaintiff alleges ultra vires conduct,

the remedy sought by the plaintiff “may implicate immunity.” See id. at 373–74. The

court then explained at length why sovereign immunity bars claims for retrospective

monetary relief, but not necessarily claims for prospective equitable and declaratory

relief even if such remedies might involve monetary expenditures by the state. See

id. at 374–76. The rule from Heinrich is thus a “qualification” to an exception:

sovereign immunity generally bars suits against the state and its officers; such

officers are not immune from claims alleging that they acted illegally or without

authority; so long as the plaintiff seeks prospective, not retrospective, relief. See

generally id.

Here, the Deputies argue that their claims should have survived dismissal

because they sought only prospective relief. But as Dallas County and Gipson

correctly recognize, the primary issue is whether the Deputies’ pleadings

affirmatively demonstrate that sovereign and governmental immunity either do not

apply or have been waived. See Matzen, 659 S.W.3d at 388. If they have not, it is

immaterial whether the Deputies seek prospective or retroactive relief. On this

–12– rationale, Dallas County and Gipson argue that the Deputies failed to demonstrate

waiver of sovereign and governmental immunity for their equitable and declaratory

claims. We therefore consider whether the Deputies effectively pleaded

inapplicability or waiver of immunity2 for each of their claims, reaching the remedy

issue—i.e., whether the remedy sought is prospective or retroactive—only where

applicable.

2. The Deputies’ Claims

“Before determining whether appellants’ claims are barred by governmental

immunity, we must first determine what those claims are.” Bell v. City of Grand

Prairie, 221 S.W.3d 317, 323 (Tex. App.—Dallas 2007, no pet.). We consider

whether a trial court has jurisdiction on a claim-by-claim basis. See Amador v. City

of Irving, No. 05-19-00278-CV, 2020 WL 1316921, at *8 (Tex. App.—Dallas Mar.

20, 2020, no pet.) (mem. op.) (citing Heckman v. Williamson Cnty., 369 S.W.3d 137,

152–53 (Tex. 2012)).

In their second amended petition, the Deputies included claims for wrongful

termination, equal protection, due course of law, violation of Section 617.005 of the

2 Deputies frame immunity in the second amended petition as sovereign immunity. As we previously noted, governmental immunity is the applicable immunity. See Taylor, 106 S.W.3d at 694 n.3; see also Patel v. Trevino, No. 01-20-00445-CV, 2022 WL 3720135, at *5 (Tex. App.—Houston [1st Dist.] Aug. 30, 2022, no pet.) (“A suit against a government employee in her official capacity is a suit against her government employer; therefore, an employee sued in her official capacity has the same governmental immunity, derivatively, as her government employer.” (citation omitted)). Although the parties do not distinguish between the two immunities, as related to the distinct entities to which they apply, nor articulate the particular source, consent or waiver, of sovereign immunity, we discern from the live pleading and arguments contained therein, that governmental immunity, as applicable to Dallas County and Gipson, is the applicable immunity being challenged. –13– Government Code, declaratory judgment, injunctive relief, mandamus relief, and

reinstatement. These claims fall into two categories: (1) claims related to the

termination of their employment, and (2) claims related to their grievance rights.

As to the first category, the Deputies “claim the existence of property rights

in their employment.” Under their wrongful-termination claim, they aver that they

were deprived of these rights and seek “injunctive relief and/or mandamus relief”

including reinstatement of their employment and benefits, as well as expunction of

any negative information in their personnel files. They also assert that their

termination constituted a violation of their right to due course of law. Under their

claim titled “equitable remedy of reinstatement,” they argue that they are entitled to

reinstatement of their employment due to the violations of their constitutional rights.

Under the second category, the Deputies complain that Dallas County’s denial

of their request for formal grievance proceedings violates their First Amendment

right to petition the government for redress of their grievances. Similarly, they claim

that Section 617.005 of the Government Code affords them the right to have their

grievances heard by someone in a position of authority and that any ordinance,

regulation, rule, or policy that deprives them of that right violates Section 617.005.

They further claim that their equal-protection rights were violated as Dallas County

offers grievance procedures to deputy constables hired prior to 2003 but not post-

2003 hires. Relatedly, they claim that any Dallas County law or ordinance that

–14– deprives them of access to the civil service system’s grievance procedures is

unconstitutional as it violates their equal-protection rights.

Some of the Deputies’ claims fall into both categories. Their claim for

declaratory judgment requests that the court declare that (1) their termination was

without cause, without due course of law, and an unconstitutional taking of their

property; and (2) their “exclusion from the Dallas County grievance procedures

violates the guarantee of equal protection under law.” Similarly, their claim for

injunctive relief requests an injunction that both (1) prohibits Dallas County from

excluding them from its grievance procedures, and (2) compels Dallas County to

reinstate them to their former positions. Finally, their request for a writ of mandamus

seeks to correct Dallas County’s and Gipson’s allegedly illegal conduct and

infringement of the Deputies’ constitutional and statutory rights.

3. Wrongful Termination and Due Course of Law

Underpinning the Deputies’ wrongful-termination and due-course-of-law

claims is the premise that they had property rights in their employment as deputy

constables. They allege that these property rights were illegally “taken”3 without due

process or due course of law when Gipson declined to swear them in upon taking

3 To the extent the Deputies attempt to assert a constitutional takings claim predicated on the “taking” of their property rights in continued employment, we conclude the trial court did not err in dismissing such claim. See Seals v. City of Dallas, 249 S.W.3d 750, 759 (Tex. App.—Dallas 2008, no pet.) (noting that courts have refused to interpret the takings clause to protect an employee’s interest in public employment); see also Brantley v. Tex. Youth Comm’n, 365 S.W.3d 89, 106 (Tex. App.—Austin 2011, no pet.) (holding that appellants did not and could not assert a viable takings claim predicated on the “taking” of a public employee’s property right in continued employment). –15– office. Dallas County and Gipson respond that the Deputies were at-will employees

and therefore had no property interest in their continued employment. We agree with

Dallas County and Gipson.

The Fourteenth Amendment provides that no state shall “deprive any person

of life, liberty, or property, without due process of law[.]” U.S. CONST. amend. XIV,

§ 1. The Texas Constitution similarly provides: “No citizen of this State shall be

deprived of life, liberty, property, privileges or immunities, or in any manner

disfranchised, except by the due course of the law of the land.” TEX. CONST. art. I,

§ 19. These two provisions are “for the most part, coextensive.” Mitchell v. MAP

Res., Inc., 649 S.W.3d 180, 189 n.7 (Tex. 2022). Where, as here, the parties “do not

identify any differences in text or application that are relevant to the issues raised[,]

. . . we treat the requirements of both Constitutions as identical.” Id. “A two-part test

governs a due-process claim: we must determine whether petitioners ‘(1) ha[ve] a

liberty or property interest that is entitled to procedural due process protection; and

(2) if so, we must determine what process is due.’” Mosley v. Tex. Health & Human

Servs. Comm’n, 593 S.W.3d 250, 264 (Tex. 2019) (brackets in original) (quoting

Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995)).

The United States Supreme Court has recognized that certain public

employees have property interests in their continued employment. See Bd. of

Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972). Examples include “a

public college professor dismissed from an office held under tenure provisions,”

–16– “college professors and staff members dismissed during the terms of their contracts,”

and “a teacher recently hired without tenure or a formal contract, but nonetheless

with a clearly implied promise of continued employment.” See id. at 576–77

(collecting cases) (internal citations omitted).

The case at bar presents no such property interest in continued employment

and is critically distinguishable from the cases cited in Roth for the simple reason

that the Deputies were at-will employees. In County of Dallas v. Wiland, the Texas

Supreme Court explained the import of the at-will doctrine: “For well over a century,

the general rule in this State, as in most American jurisdictions, has been that absent

a specific agreement to the contrary, employment may be terminated by the

employer or the employee at will, for good cause, bad cause, or no cause at all.” 216

S.W.3d 344, 347 (Tex. 2007).

Generally, at-will deputy constables have no property interest in their

continued employment. In Renken v. Harris County, for example, the court affirmed

summary judgment against a deputy constable on his wrongful-termination claim,

concluding that that public employees like deputy sheriffs and deputy constables

“have no legal entitlement to their jobs as public employees” and could be fired “for

many reasons or for no articulate reason at all.” 808 S.W.2d 222, 225 (Tex. App.—

Houston [14th Dist.] 1991, no writ). Similarly, the court in Gillis v. Wooten held that

a deputy constable’s wrongful termination claim failed because his at-will

employment status meant that he had no property interest in continued employment.

–17– See No. 14-03-01134-CV, 2004 WL 1406299, at *4 (Tex. App.—Houston [14th

Dist.] June 24, 2004, no pet.) (mem. op.) (“Without a property interest, Gillis’s

claims related to his termination fail.”).

Courts have also held that the mere existence of grievance procedures do not

alter the at-will employment status. See Haynes v. City of Beaumont, 35 S.W.3d 166,

179–80 (Tex. App.—Texarkana 2000, no pet.) (stating city grievance procedures

alone do not create substantive property rights or alter employees’ at-will status);

Cote v. Rivera, 894 S.W.2d 536, 541 (Tex. App.—Austin 1995, no writ) (“Providing

employees procedural rights that protect due process . . . does not create a property

interest in the employee’s job. . . . An employee who is afforded these rights may

retain at-will status. . . . In other words, the existence of procedures cannot be used

to ‘bootstrap’ an employee into having an entitlement.”); Renken, 808 S.W.2d at 225

(stating deputy constable had no legal entitlement to his job and that mere existence

of grievance procedures did not create property interest in employment).

A public employee’s at-will status does not end our inquiry. As the supreme

court noted in Wiland, “at-will employment may be modified” by, for example,

“agreement with the employer, as in a personnel manual” or “through civil service

systems.” Wiland, 216 S.W.3d at 348. In that case, the court considered whether

county employees such as deputy constables “may be dismissed only for cause.” Id.

at 354. The supreme court noted that Dallas County had, at the time, created a civil

service system under Chapter 158 of the Local Government Code. See id. at 348

–18– n.11 (citing TEX. LOCAL GOV’T CODE ANN. § 158.001 et. seq.). The county had

issued a civil service manual in which it included deputy constables in its definition

of “employee” and provided that an employee may be terminated for “just cause.”

See id. The manual also afforded county employees grievance rights when faced

with adverse employment decisions. But the manual also included a disclaimer

stating that “nothing in the [manual] is to be construed as a contract of employment

or a provision guaranteeing the specific term or tenure of employment.” See id. at

349. The supreme court noted the conflicting provisions and acknowledged that the

issue of whether the manual changed the deputies’ at-will status was a “close

question.” See id. at 354. The court rejected the notion that the deputy constables

had substantive due process rights in their continued government employment, but

ultimately held that the deputies’ procedural due process rights were violated

because they were not allowed to participate in formal grievance proceedings. See

id. at 358.

We take note as instructive Justice Brister’s separate opinion, joined by three

justices, in which he disagreed that it was a close question. See id. at 364 (Brister, J.,

concurring in part and dissenting in part). Justice Brister would have held that

“Public employees have a property interest in continued employment if the

government has agreed to fire them only ‘for cause.’” Id. at 363. Justice Brister

summarized the history of Dallas County’s civil service system as follows:

–19– Even governments should be careful what they ask for. After a Dallas district court held that Dallas County deputy constables were at-will employees, Dallas legislators obtained passage of a state law and Dallas County officials adopted a new code extending civil-service protection to them. But when three deputies were discharged in 2001, the County insisted they were still at-will employees, despite all its efforts to the contrary.

Dallas County should be held to its word. If the County wants deputy constables to be terminable-at-will, it must say so, as it did by amending its civil service code to drop them again in 2003. But we cannot amend that code as it stood in 2001, and should not allow the County to pretend that changing the code one way and then back again meant nothing in the interim.

Id. at 362 (emphasis added).

It is not disputed that Dallas County amended its code in 2003 to exclude

deputy constables from the definition of “employee” in the county’s civil service

manual. See id. (citing Order Amending Policy Manual, Order No.2003–1467

(Dallas County Comm’rs Ct. Aug. 19, 2003) (reclassifying deputy constables as

“Category A” employees not covered by civil service rules)). Thus, deputy

constables hired after 2003 are not afforded the right to participate in the civil service

system’s grievance procedures. Further, unlike deputy constables hired before that

date, there is no law, rule, or contract that alters their at-will status. Cf. id. at 348.

Here, it is undisputed that the Deputies were hired after 2003. They were

therefore at-will employees throughout their employment period and had no property

interest in continued employment. See id. Other than the bare assertion that they had

such an interest, the Deputies’ second amended petition alleges no facts that alters

their legal status as at-will employees. We conclude that the trial court did not err in –20– granting Dallas County’s and Gipson’s pleas to the jurisdiction on the Deputies’

claims for wrongful termination and due-course-of-law violations.

4. Equal Protection

Under their equal-protection claims, the Deputies argue that by denying them

access to the civil service grievance procedures, Dallas County denied their

fundamental First Amendment right to petition the government for redress of

grievances. Contending further that because Dallas County provides grievance rights

to employees hired before 2003 but not those hired after that date, they argue the

policy violates their equal protection rights. Dallas County and Gipson argue that

the civil service system neither infringes on the Deputies’ fundamental rights nor

denies them equal protection. We agree with Dallas County and Gipson.

The Equal Protection Clause provides that “[n]o State shall . . . deny to any

person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend.

XIV, § 1. At its core, the Fourteenth Amendment guarantees the equal treatment of

persons that are similarly situated. City of Cleburne v. Cleburne Living Ctr., 473

U.S. 432, 439 (1985); see also City of Dallas v. Jones 331 S.W.3d 781, 787 (Tex.

App.—Dallas 2010, pet. dism’d) (“It is critical [in an equal-protection challenge]

that the plaintiff allege he is being treated differently from those whose situation is

directly comparable in all material respects.” (emphasis added)). However, “the

equal protection of the laws must coexist with the practical necessity that most

legislation classifies for one purpose or another, with resulting disadvantage to

–21– various groups or persons.” Romer v. Evans, 517 U.S. 620, 631 (1996). To reconcile

the equal-protection principle with practical necessity, the Supreme Court has

developed differing levels of judicial scrutiny depending on the kind of classification

at issue. See id. If the law in question burdens a fundamental right or targets a suspect

class, courts review the law under the strict scrutiny standard. City of Cleburne, 473

U.S. at 439–40. Otherwise, courts will uphold the classification “so long as it bears

a rational relation to some legitimate end.” Romer, 517 U.S. at 631.

The Deputies argue that Dallas County’s civil service system classifies deputy

constables into two groups: those hired before 2003 and those hired after. With

respect to the latter group, the Deputies argue that the system burdens their

fundamental right to petition the government for redress of grievances because it

excludes them from the formal grievance procedures.

These exact arguments were considered and rejected by the Northern District

in Logan v. Dallas County, 331 F. Supp. 3d 640, 643 (N.D. Tex. 2017). There, a

deputy constable sued Dallas County after his employment was terminated and he

was denied participation in the civil service system’s grievance procedures. See id.

at 644. He filed suit and, like the Deputies here, asserted an equal protection claim

based on the deprivation of his fundamental right to petition the government for

redress of grievances. See id. at 647. The court first considered whether Logan

intended “to assert a straight up First Amendment . . . claim, or a[] fundamental

right/equal protection claim, or an equal protection/suspect class claim.” Id.

–22– (footnotes omitted). The court considered all three claims and, in a detailed analysis,

held that there was no equal-protection violation:

Turning first to the traditional equal protection argument, the classification here is constables hired before or after August 19, 2003. Logan cites no authority that discriminating among employees based on date of employment is a suspect classification. The Court holds that it is not. Therefore rational basis scrutiny is appropriate. This requires that the classification be rationally related to a legitimate state interest. See New Orleans v. Dukes, 427 U.S. 297, 303 (1976). Here the Commissioners Court could rationally have decided that eliminating civil service protection on a going forward basis would reduce the exposure of the county taxpayers to expensive litigation over civil service rights and procedures. Thus the elimination of civil service protection for Deputy Constables hired after August 19, 2003 survives rational basis scrutiny.

Logan also at some points appears to make a straight up First Amendment claim, that he has a right to petition the county government and that denying him civil service rights takes away one avenue of petitioning the government. See U.S. CONST. amd. 1 (“Congress shall make no law respecting . . . the right of the people . . . to petition the Government for a redress of grievances.”). But Logan cites no authority for the proposition that the government has an affirmative duty to make available all possible avenues for petitioning the government. Indeed, Logan acknowledges the Fifth Circuit’s statement in Prof. Ass’n of Col. Educators v. El Paso Cty. Comm. Col. Dist., 730 F.2d 258 (5th Cir. 1984) (“P.A.C.E.”) that: “The Constitution does not require a public employer either to establish a grievance procedure or to respond to grievances lodged by its employees or their union.” Id. at 263 (citing Smith v. Arkansas State Hwy. Emps., 441 U.S. 463, 465 (1979)). Based on P.A.C.E., the Court finds that not making the avenue of civil service grievances available to Logan, standing alone, does not violate his First Amendment right to petition the government.

Finally, Logan appears to make an equal protection/fundamental rights variation on this argument: while Logan may not have a standalone right to civil service, the County is discriminating against him by permitting Deputy Constables hired before August 19, 2003 to petition the government through civil service grievances, but not those hired after that date; because the right to petition under the First Amendment –23– is a fundamental right, that categorization is subject to strict scrutiny, which it cannot survive. In support of that argument, Logan relies on the sentence in P.A.C.E. immediately after the one previously quoted: “Nevertheless, if a public employer voluntarily establishes a grievance procedure, then discriminates or retaliates against union members in administering that process, it violates the first amendment.” Id. The immediate problem with that argument is that the County did not exclude Logan from the civil service grievance process because he was a member of a union. The First Amendment right at issue in P.A.C.E. was the right of professors to associate with one another in a union. Id. at 262. That is not implicated here. Logan cites no authority for the proposition that the right to petition through a civil service grievance process is a fundamental right that triggers strict scrutiny. The Court holds that it is not. As discussed above, the withdrawal of civil service protection based on date of hire survives rational basis scrutiny.

Id. at 647–48.

We agree with the Logan court’s analysis. Under any reasonable reading of

their pleadings, the Deputies’ right to petition was never violated. They conceded

that they “were allowed meetings with the Interim Director of the Dallas County

Human Resources Department, Urmit Graham, to state their grievances.” They

complained, however, that Graham “admitted to [them] that he had no power, nor

any authority, to order [] Gipson” to swear them in as deputies. Whether that avenue

was more or less effective than the civil service grievance process is immaterial; like

Logan, the Deputies were given an opportunity to air their grievances to a

representative of the government. The First Amendment does not require that the

government act on their grievance or ensure it is resolved to their satisfaction. See

P.A.C.E., 730 F.2d 258, 263. As the Logan court observed, “the First Amendment

–24– right to petition does not carry with it a right to prevail.”4 Logan, 331 F. Supp. 3d at

648 n.7.

We conclude that the Deputies failed to plead a facially valid equal-protection

claim and the trial court did not err in granting Dallas County’s and Gipson’s pleas

to the jurisdiction as to that claim.

5. Government Code § 617.005

The Deputies next complain that Dallas County’s failure to afford them access

to the civil service system’s grievance procedure violated Section 617.005 of the

Government Code. Chapter 617 of the Government Code relates to collective

bargaining and strikes by public employees. It provides:

This chapter does not impair the right of public employees to present grievances concerning their wages, hours of employment, or conditions of work either individually or through a representative that does not claim the right to strike.

TEX. GOV’T CODE ANN. § 617.005. We recently held that a trial court did not err in

granting a plea to the jurisdiction and dismissing a plaintiff’s claim based on alleged

4 The Logan court noted another untenable problem with the Deputies’ position: Before addressing the specifics of Logan’s arguments, two global points are worth noting. First, Dallas County never took anything away from Logan. He never had civil service protection; it was eliminated for Deputy Constables years before Logan began to work for Dallas County. Second, the implication of Logan’s argument is that if a county ever offers civil service protection for any group of employees, it can never change its “mind” and retract that benefit. That would be a startling conclusion. Id. at 647. We agree. The import of the Deputies’ position is that an equal-protection challenge will lie any time the government includes what is often called a “grandfather clause” in a repeal of existing law. See Sklar v. Byrne, 727 F.2d 633, 639 (7th Cir. 1984) (“If compelling governmental interest scrutiny were appropriate based merely on a showing that newer residents would not benefit from the provision, then virtually any grandfather clause would be vulnerable under that exacting standard.”). –25– violations of Section 617.005 because that provision neither expressly waives

immunity nor creates a private right of action. See Burleson v. Collin Cnty. Cmty.

Coll. Dist., No. 05-21-00088-CV, 2022 WL 17817965, at *7 (Tex. App.—Dallas

Dec. 20, 2022, no pet.) (mem. op.) (citing City of Caldwell v. Lilly, No. 10-12-00102-

CV, 2012 WL 3242742, at *5 (Tex. App.—Waco Aug. 9, 2012, no pet.) (mem. op.)

(noting that “nothing in [chapter 617] clearly and unambiguously waives the City’s

immunity”); Johnson v. Waxahachie Indep. Sch. Dist., 322 S.W.3d 396, 400 (Tex.

App.—Houston [14th Dist.] 2010, no pet.) (no private right of action for damages

under government code section 617.005)). We conclude that the Deputies failed to

affirmatively establish waiver of immunity for their claims under Section 617.005.

6. Equitable Relief

In their second amended petition, the Deputies seek mandamus and injunctive

relief flowing from the alleged constitutional and statutory violations discussed

above. Regarding their wrongful termination and due course of law claims, for

example, their requests for injunctive and mandamus relief includes that their

employment and benefits be reinstated and that any negative information contained

in their personnel files be removed. Regarding their equal-protection and Section

617.005 claims, their requests for injunctive and mandamus relief includes that they

be allowed access to the grievance procedures of County’s civil service system.

Where a trial court properly dismisses the causes of action underlying a

plaintiff’s request for mandamus and injunctive relief, it also properly dismisses their

–26– requests for those remedies. Burleson, 2022 WL 17817965, at *2. Because we have

concluded that the trial court did not err in dismissing the underlying constitutional

and statutory claims, we must also conclude that these equitable remedies were also

properly dismissed.

7. Declaratory Relief

The Deputies next contend that the trial court erred in dismissing their claims

for declaratory relief under the Uniform Declaratory Judgments Act (UDJA).

In Heinrich, the supreme court acknowledged that although the State and its

political subdivisions are immune from suits for money damages absent waiver of

immunity, a private litigant “does not need legislative permission to sue the State for

a state official’s violations of state law.” Heinrich, 284 S.W.3d at 370 (quoting Fed.

Sign v. Tex. S. Univ., 951 S.W.2d 401, 404 (Tex. 1997)). The court explained the

rationale behind this exception:

A state official’s illegal or unauthorized actions are not acts of the State. Accordingly, an action to determine or protect a private party’s rights against a state official who has acted without legal or statutory authority is not a suit against the State that sovereign immunity bars. In other words, we distinguish suits to determine a party’s rights against the State from suits seeking damages. A party can maintain a suit to determine its rights without legislative permission.

Id. (quoting Fed. Sign, 951 S.W.2d at 404). Thus, courts have held that certain claims

for declaratory judgment and equitable relief are not subject to dismissal under

sovereign immunity. See Brown, 2021 WL 1997060, at *9 (“[S]uits for equitable or

injunctive relief may in some instances be brought to remedy violations of the Texas

–27– Constitution”); see, e.g., City of Fort Worth v. Jacobs, 382 S.W.3d 597, 599 (Tex.

App.—Fort Worth 2012, pet. dism’d) (holding that city was not immune from suit

alleging violations of the state constitution that sought equitable remedy of

reinstatement).

However, “[t]he fact that a plaintiff alleges unconstitutional conduct by an

official does not alone mean it has avoided immunity and invoked a trial court’s

jurisdiction.” Brown, 2021 WL 1997060, at *9. “A plaintiff must still plead a valid

constitutional violation.” Id. (citing Patel v. Tex. Dep’t of Licensing & Regul., 469

S.W.3d 69, 77 (Tex. 2015)). Thus, neither a request for declaratory relief challenging

the constitutionality of a statute nor a constitutional claim for equitable relief, alone,

is sufficient to waive immunity. See City of Houston v. Houston Firefighters’ Relief

& Ret. Fund, 667 S.W.3d 383, 396 (Tex. App.—Houston [1st Dist.] 2022, pet.

denied) (citing Abbott, 647 S.W.3d at 698).

Moreover, not every suit seeking declaratory judgment or alleging a

constitutional violation will overcome immunity. The UDJA provides that “[a]

person . . . whose rights, status, or other legal relations are affected by a statute . . .

may have determined any question of construction or validity arising under the . . .

statute . . . and obtain a declaration of rights, status, or other legal relations

thereunder.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a). The Texas Supreme

Court has explained that “the UDJA does not enlarge the trial court’s jurisdiction but

is ‘merely a procedural device for deciding cases already within a court’s

–28– jurisdiction.’” Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–22 (Tex. 2011)

(per curiam) (quoting Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384,

388 (Tex. 2011)). Accordingly, the UDJA “is not a general waiver of sovereign

immunity.” Sawyer Tr., 354 S.W.3d at 388. Instead, the UDJA only “waives

sovereign immunity in particular cases.” Sefzik, 355 S.W.3d at 622. “For example,

the state may be a proper party to a declaratory judgment action that challenges the

validity of a statute.” Id. However, “the UDJA 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.” Id. at 621. “Very likely, the same claim could be brought against the

appropriate state official under the ultra vires exception, but the state agency remains

immune.” Id. “Accordingly, the underlying action, if against the state or its political

subdivisions, must be one for which immunity has expressly been waived.” Id. at

622.

We concluded above that the Deputies’ constitutional claims as pleaded were

not facially valid and were therefore properly dismissed. Consequently, we conclude

that the trial court also did not err in dismissing their claims for declaratory relief.

8. Summary

We conclude that the trial court did not err in holding that the Deputies’

affirmative claims and their request for equitable relief in the form of mandamus,

declaratory and injunctive relief based on purported constitutional and statutory

violations were barred by governmental immunity. As a result, we do not reach the

–29– issue of whether the Deputies sought only prospective, rather than retrospective,

relief. We overrule the Deputies’ second and third issues.

C. Issue 4: Ultra Vires Claims

In their fourth issue, the Deputies complain that the trial court erred in

dismissing their claims for declaratory relief against Gipson based on his argument

that they failed to allege ultra vires acts. The Deputies claim that they did indeed

allege that Gipson’s conduct was ultra vires. Dallas County and Gipson respond that

the Deputies’ allegations fail to overcome immunity. We agree with Dallas County

and Gipson.

Notwithstanding sovereign or governmental immunity, Texas law recognizes

“ultra vires” claims seeking prospective injunctive relief against individual

government officials in their official capacities. Matzen, 659 S.W.3d at 388 (citing

Heinrich, 284 S.W.3d at 376). “Even if a government entity’s immunity has not been

waived by the Legislature, a claim may proceed against a government official in his

official capacity if the plaintiff successfully alleges that the official is engaging in

ultra vires conduct.” Id. (quoting Chambers–Liberty Cntys. Navigation Dist. v. State,

575 S.W.3d 339, 344 (Tex. 2019)). “The basic justification for this ultra vires

exception to sovereign immunity is that ultra vires acts—or those acts without

authority—should not be considered acts of the state at all.” Id. Consequently, ‘ultra

vires suits do not attempt to exert control over the state—they attempt to reassert the

–30– control of the state’ over one of its agents.” Id. (quoting Hall v. McRaven, 508

S.W.3d 232, 238 (Tex. 2017)).

“Plaintiffs who seek to bypass sovereign immunity using an ultra vires claim

must plead, and ultimately prove, that the defendant government official ‘acted

without legal authority or failed to perform a ministerial act.’” Id. (quoting Heinrich,

284 S.W.3d at 372). An officer acts without legal authority “if he exceeds the bounds

of his granted authority or if his acts conflict with the law itself.” Id. at 388 (quoting

Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex.

2016)). If, however, the actions alleged to be ultra vires were not truly outside the

officer’s authority or in conflict with the law, the plaintiff has not stated a valid ultra

vires claim and therefore has not bypassed sovereign immunity. Id. In such cases,

sovereign immunity continues to protect state officials from both suit and liability in

their official capacities. Id.

In their second amended petition, the Deputies included the following relevant

factual allegations regarding Gipson’s conduct:

On or about November 6, 2018, Defendant Gipson was elected as the Dallas County Constable for Precinct 2.

On or about November 16, 2018, Defendant Gipson notified Plaintiffs, and other deputy constables, they would not be re-sworn as deputy constables when he took office.

Each Plaintiff timely invoked his grievance rights and attempted to exercise available administrative remedies after receiving notice that he would be terminated.

Neither Plaintiff was given a grievance hearing by Defendant Gipson. –31– The second amended petition also includes a section titled “Waiver of Sovereign

Immunity,” in which the Deputies argued why they believed their suit was not

barred. Relevant to Gipson, the second amended petition asserts the following:

Defendants acted without legal or statutory authority and this action does not implicate the sovereign-immunity doctrine.

Defendant Gipson’s illegal actions and omissions were not in the course and scope of employment or agency with Defendant Dallas County, as the scope of Defendant Gipson’s employment or agency does not authorize, nor include illegal acts, and Defendant Gipson’s actions and omissions were ultra vires actions and omissions.

Under their causes of action, the Deputies explained why they believed Gipson’s

acts and omissions to be illegal: (1) Gipson’s termination of their employment

violated their property rights without due course of law; (2) Gipson’s refusal to hear

their grievances violated their First Amendment right to petition and their statutory

grievance right under Section 617.005.

Merely asserting a legal conclusion or labeling a defendant’s actions as “ultra

vires,” “illegal,” or “unconstitutional” does not suffice to plead an ultra vires claim—

what matters is whether the facts alleged constitute actions beyond the governmental

actor’s statutory authority, properly construed. See Fuentes v. Tex. Appraiser

Licensing & Certification Bd., No. 03-18-00660-CV, 2020 WL 1313734, at *3 (Tex.

App.—Austin Mar. 20, 2020, no pet.) (mem. op.).

As we explained above, the Deputies were at-will employees and therefore

had no property interest in their continued employment. See Wiland, 216 S.W.3d at

347; Renken, 808 S.W.2d at 225; Gillis, 2004 WL 1406299, at *4. As the elected –32– county official, Gipson had “virtually unbridled authority in hiring and firing [his]

employees.” See Renken, 808 S.W.2d at 225. He could therefore terminate the

Deputies’ employment “for many reasons or for no articulate reason at all.” See id.

We conclude that the Deputies failed to allege facts that constitute actions by

Gipson beyond his “properly construed” statutory authority. See Fuentes, 2020 WL

1313734, at *3.

We overrule the Deputies’ fourth issue.

D. Issue 5: Improper Findings

In their fifth issue, the Deputies complain that the trial court erred in

dismissing their claims because it “decided fact questions at the pleading stage, when

the proper issue was sufficiency of pleadings.”

Findings of fact and conclusions of law are appropriate whenever the trial

court receives and could consider evidence in reaching its judgment. See Phillips v.

McNeill, 635 S.W.3d 620, 626 (Tex. 2021). As we discussed above, Dallas County

and Gipson filed “pleadings-based” pleas to the jurisdiction. Therefore, the trial

court could not have considered any evidence in reaching its conclusion, and its

findings of fact and conclusions of law were inappropriate. See id.

Although we conclude that the trial court erred in entering findings of fact and

conclusions of law, the error is not reversible. As Dallas County and Gipson point

out, it was the Deputies who requested fact findings in the first place. Under the

“invited error” doctrine, “[a] party cannot ask something of the trial court and then

–33– complain that the court erred by granting the request.” Dao v. Garcia, 486 S.W.3d

618, 627 (Tex. App.—Dallas 2016, pet. denied). Additionally, because we have

concluded that dismissal of all of the Deputies’ claims was appropriate based on the

pleadings, any error by the trial court in coming to that same conclusion based on its

findings of fact was harmless. See TEX. R. APP. P. 44.1; see also City of Dallas v.

Nkansah, No. 05-18-00069-CV, 2018 WL 6599025, at *4 (Tex. App.—Dallas Dec.

17, 2018, pet. denied) (mem. op.) (applying harmless-error doctrine to trial court’s

consideration of evidence in deciding plea to the jurisdiction).

We overrule the Deputies’ fifth issue.

E. Issue 6: Implied Findings

In their sixth issue, the Deputies argue that the trial court’s findings of fact

and conclusions of law preclude us from presuming any findings the trial court failed

to make. Specifically, they note that the trial court made no finding that their

pleadings affirmatively negate jurisdiction or that allowing them to amend their

pleadings would be futile. They argue that because the trial court did not make these

findings, this Court cannot “imply these missing findings in support of the trial

court’s judgment.” They thus request that we remand this case and allow them an

opportunity to file amended pleadings.

We reject this argument. The Deputies cite to no case, and we have found

none, that stands for the proposition that, in the absence of express findings by the

trial court, an appellate court cannot determine whether the pleadings negate

–34– jurisdiction or that allowing amendments to the pleadings would be futile. Nor

should we expect to find such authority, given that the rule about omitted and

presumed findings applies to findings of fact. See TEX. R. CIV. P. 299. Conversely,

whether a plaintiff’s pleadings affirmatively negate jurisdiction, and whether such

pleading defects are incurable, are questions of law. See Miranda, 133 S.W.3d at

226 (“Whether a pleader has alleged facts that affirmatively demonstrate a trial

court’s subject matter jurisdiction is a question of law reviewed de novo.”); see also

In re Freestone Underground Storage, Inc., 429 S.W.3d 110, 115 (Tex. App.—

Texarkana 2014, orig. proceeding) (“Construing pleadings . . . [is an] issue[] of

law.”). Therefore, even if the trial court’s findings of fact and conclusions of law

were proper, and even if we were bound by the trial court’s fact findings, there is no

rule preventing us from correcting the trial court’s legal conclusions or supplying

legal conclusions that the trial court failed expressly to make. See Sheetz v.

Slaughter, 503 S.W.3d 495, 502 (Tex. App.—Dallas 2016, no pet.) (“We are not

bound by the trial court’s legal conclusions, but the conclusions of law will be upheld

on appeal if the judgment can be sustained on any legal theory supported by the

evidence.”); see also State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996) (“Conclusions of

law which are necessary, but not made, are deemed in support of the judgment.”).

We overrule the Deputies’ sixth issue.

–35– CONCLUSION

We affirm the trial court’s judgment.

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN 221141F.P05 JUSTICE

–36– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BRYAN WOODARD AND LONNY On Appeal from the 101st Judicial YARBROUGH, Appellants District Court, Dallas County, Texas Trial Court Cause No. DC-20-19270. No. 05-22-01141-CV V. Opinion delivered by Justice Goldstein. Justices Garcia and Miskel DALLAS COUNTY, TEXAS AND participating. BILL GIPSON, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellees DALLAS COUNTY, TEXAS AND BILL GIPSON recover their costs of this appeal from appellants BRYAN WOODARD AND LONNY YARBROUGH.

Judgment entered this 22nd day of November 2024.

–37–