IN THE TENTH COURT OF APPEALS
No. 10-12-00109-CV
CITY OF BRUCEVILLE-EDDY, TEXAS, Appellant v.
DANIEL FERGUSON, Appellee
From the 82nd District Court Falls County, Texas Trial Court No. 38094
MEMORANDUM OPINION
Daniel Ferguson was terminated as the Chief of Police for the City of Bruceville-
Eddy by the City Council effective August 11, 2011. Ferguson ultimately sued the City
for declaratory relief. In response, the City filed a motion to dismiss for lack of
jurisdiction asserting immunity from suit. The trial court denied the motion, and the
City appealed. Because the trial court erred in denying the City’s motion, the trial
court’s order is reversed and a judgment is rendered that Ferguson’s claims be
dismissed. IMMUNITY AND THE UNIFORM DECLARATORY JUDGMENTS ACT
In three issues, the City contends that the trial court erring in denying its motion
to dismiss for lack of jurisdiction. In its first issue, the City argues that it is immune
from a suit for money damages and immunity has not been waived by the Uniform
Declaratory Judgments Act.
Sovereign immunity protects the State and its various divisions, such as agencies
and boards, from suit and liability, whereas governmental immunity provides similar
protection to the political subdivisions of the State, such as counties, cities, and school
districts. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011) (citing
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)). No one disputes
that the City is afforded the protections of governmental immunity. When dealing with
these immunities, the Legislature has been required to express its intent to waive
immunity clearly and unambiguously. Id. (citing Univ. of Tex. Med. Branch at Galveston
v. York, 871 S.W.2d 175, 177 (Tex. 1994) and TEX. GOV'T CODE ANN. § 311.034 (West
Supp. 2011) (codifying the clear and unambiguous standard)).
An order which grants or denies a plea questioning the trial court’s jurisdiction is
reviewed de novo. See State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). When such a
plea challenges the pleadings, we determine if the pleader has alleged facts that
affirmatively demonstrate the court's jurisdiction to hear the cause. Tex. Dep't of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Ass'n of Bus. v. Tex. Air Control
City of Bruceville-Eddy v. Ferguson Page 2 Bd., 852 S.W.2d 440, 446 (Tex. 1993). We construe the pleadings liberally in favor of the
plaintiff and look to the pleader’s intent. Id.
Ferguson’s suit was filed pursuant to the Uniform Declaratory Judgments Act;
and while the UDJA waives immunity for certain claims, such as challenges to the
validity of a municipal ordinance or statute, it is not a general waiver of immunity. TEX.
CIV. PRAC. & REM. CODE ANN. § 37.006(b) (West 2008); Tex. Parks & Wildlife Dep't v.
Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011); City of El Paso v. Heinrich, 284 S.W.3d 366,
373 n.6 (Tex. 2009). The UDJA does not alter or enlarge a trial court's jurisdiction;
rather, it is "merely a procedural device for deciding cases already within a court's
jurisdiction." Sawyer Trust, 354 S.W.3d at 888 (quoting Tex. Ass'n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)); Heinrich, 284 S.W.3d at 370. And a
litigant's request for declaratory relief does not alter a suit's underlying nature.
Heinrich, 284 S.W.3d at 370. Accordingly, immunity will bar an otherwise proper UDJA
suit that has the effect of establishing a right to relief against the State or its political
subdivisions for which the Legislature has not waived immunity. Sawyer Trust, 354
S.W.3d at 388.
Ferguson does not challenge the validity of a municipal ordinance or statute.
Instead, he requests a declaration that the City violated sections 614.022-.023 of the
Texas Government Code and requests reinstatement as of the time of his termination
including an award for salary and monetary benefits from the time he was terminated
City of Bruceville-Eddy v. Ferguson Page 3 to the time he is reinstated. This is a suit for money damages, and the City is immune
from such a suit. See City of Dallas v. Albert, 354 S.W.3d 368, 378 (Tex. 2011); City of El
Paso v. Heinrich, 284 S.W.3d 366, 368 (Tex. 2009); City of Houston v. Williams, 216 S.W.3d
827, 828-29 (Tex. 2007). Further, there is nothing in sections 614.022-.023 that clearly and
unambiguously waives the City’s immunity. See TEX. GOV’T CODE ANN. §§ 614.022-.023
(West 2012) (signed complaint against peace officer to be given to officer within a
reasonable time; no disciplinary action may be taken without a copy of the complaint
given to the officer).
Ferguson asserts, however, that section 180.006(c) of the Texas Local Government
Code waives immunity for the recovery of back pay. TEX. LOC. GOV’T CODE ANN. §
180.006(c) (West 2008). Ferguson’s pleadings, even read liberally, do not allege a cause
of action pursuant to section 180.006 which might waive the City’s immunity. 1
Further, Ferguson relies on the Dallas Court of Appeals’ opinion in City of
Seagoville v. Lytle for the proposition that because part of his declaratory judgment
action sought his reinstatement, he did not seek an award of money damages and that
portion is not barred by immunity. City of Seagoville v. Lytle, 227 S.W.3d 401, 410 (Tex.
App.—Dallas 2007, no pet.). His reliance on Lytle is misplaced. As the Dallas Court of
Appeals later acknowledged, Lytle was issued before the Supreme Court’s opinion in
Heinrich discussing the limitations of a waiver of immunity per the UDJA and has no
1Ferguson asserts in his brief that he mentioned section 180.006 to the trial court at the hearing on the City’s motion. However, no record was made of that hearing.
City of Bruceville-Eddy v. Ferguson Page 4 applicability. City of Dallas v. Turley, 316 S.W.3d 762, 771 (Tex. App.—Dallas 2010, pet.
denied). Because Ferguson does not challenge the validity of an ordinance or statute,
the City’s immunity is not waived for any part of Ferguson’s suit.
Finally, Ferguson asserts that if we determine his declaratory judgment claims
are actually ultra vires claims that should have been brought against city officials, then
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IN THE TENTH COURT OF APPEALS
No. 10-12-00109-CV
CITY OF BRUCEVILLE-EDDY, TEXAS, Appellant v.
DANIEL FERGUSON, Appellee
From the 82nd District Court Falls County, Texas Trial Court No. 38094
MEMORANDUM OPINION
Daniel Ferguson was terminated as the Chief of Police for the City of Bruceville-
Eddy by the City Council effective August 11, 2011. Ferguson ultimately sued the City
for declaratory relief. In response, the City filed a motion to dismiss for lack of
jurisdiction asserting immunity from suit. The trial court denied the motion, and the
City appealed. Because the trial court erred in denying the City’s motion, the trial
court’s order is reversed and a judgment is rendered that Ferguson’s claims be
dismissed. IMMUNITY AND THE UNIFORM DECLARATORY JUDGMENTS ACT
In three issues, the City contends that the trial court erring in denying its motion
to dismiss for lack of jurisdiction. In its first issue, the City argues that it is immune
from a suit for money damages and immunity has not been waived by the Uniform
Declaratory Judgments Act.
Sovereign immunity protects the State and its various divisions, such as agencies
and boards, from suit and liability, whereas governmental immunity provides similar
protection to the political subdivisions of the State, such as counties, cities, and school
districts. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011) (citing
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)). No one disputes
that the City is afforded the protections of governmental immunity. When dealing with
these immunities, the Legislature has been required to express its intent to waive
immunity clearly and unambiguously. Id. (citing Univ. of Tex. Med. Branch at Galveston
v. York, 871 S.W.2d 175, 177 (Tex. 1994) and TEX. GOV'T CODE ANN. § 311.034 (West
Supp. 2011) (codifying the clear and unambiguous standard)).
An order which grants or denies a plea questioning the trial court’s jurisdiction is
reviewed de novo. See State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). When such a
plea challenges the pleadings, we determine if the pleader has alleged facts that
affirmatively demonstrate the court's jurisdiction to hear the cause. Tex. Dep't of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Ass'n of Bus. v. Tex. Air Control
City of Bruceville-Eddy v. Ferguson Page 2 Bd., 852 S.W.2d 440, 446 (Tex. 1993). We construe the pleadings liberally in favor of the
plaintiff and look to the pleader’s intent. Id.
Ferguson’s suit was filed pursuant to the Uniform Declaratory Judgments Act;
and while the UDJA waives immunity for certain claims, such as challenges to the
validity of a municipal ordinance or statute, it is not a general waiver of immunity. TEX.
CIV. PRAC. & REM. CODE ANN. § 37.006(b) (West 2008); Tex. Parks & Wildlife Dep't v.
Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011); City of El Paso v. Heinrich, 284 S.W.3d 366,
373 n.6 (Tex. 2009). The UDJA does not alter or enlarge a trial court's jurisdiction;
rather, it is "merely a procedural device for deciding cases already within a court's
jurisdiction." Sawyer Trust, 354 S.W.3d at 888 (quoting Tex. Ass'n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)); Heinrich, 284 S.W.3d at 370. And a
litigant's request for declaratory relief does not alter a suit's underlying nature.
Heinrich, 284 S.W.3d at 370. Accordingly, immunity will bar an otherwise proper UDJA
suit that has the effect of establishing a right to relief against the State or its political
subdivisions for which the Legislature has not waived immunity. Sawyer Trust, 354
S.W.3d at 388.
Ferguson does not challenge the validity of a municipal ordinance or statute.
Instead, he requests a declaration that the City violated sections 614.022-.023 of the
Texas Government Code and requests reinstatement as of the time of his termination
including an award for salary and monetary benefits from the time he was terminated
City of Bruceville-Eddy v. Ferguson Page 3 to the time he is reinstated. This is a suit for money damages, and the City is immune
from such a suit. See City of Dallas v. Albert, 354 S.W.3d 368, 378 (Tex. 2011); City of El
Paso v. Heinrich, 284 S.W.3d 366, 368 (Tex. 2009); City of Houston v. Williams, 216 S.W.3d
827, 828-29 (Tex. 2007). Further, there is nothing in sections 614.022-.023 that clearly and
unambiguously waives the City’s immunity. See TEX. GOV’T CODE ANN. §§ 614.022-.023
(West 2012) (signed complaint against peace officer to be given to officer within a
reasonable time; no disciplinary action may be taken without a copy of the complaint
given to the officer).
Ferguson asserts, however, that section 180.006(c) of the Texas Local Government
Code waives immunity for the recovery of back pay. TEX. LOC. GOV’T CODE ANN. §
180.006(c) (West 2008). Ferguson’s pleadings, even read liberally, do not allege a cause
of action pursuant to section 180.006 which might waive the City’s immunity. 1
Further, Ferguson relies on the Dallas Court of Appeals’ opinion in City of
Seagoville v. Lytle for the proposition that because part of his declaratory judgment
action sought his reinstatement, he did not seek an award of money damages and that
portion is not barred by immunity. City of Seagoville v. Lytle, 227 S.W.3d 401, 410 (Tex.
App.—Dallas 2007, no pet.). His reliance on Lytle is misplaced. As the Dallas Court of
Appeals later acknowledged, Lytle was issued before the Supreme Court’s opinion in
Heinrich discussing the limitations of a waiver of immunity per the UDJA and has no
1Ferguson asserts in his brief that he mentioned section 180.006 to the trial court at the hearing on the City’s motion. However, no record was made of that hearing.
City of Bruceville-Eddy v. Ferguson Page 4 applicability. City of Dallas v. Turley, 316 S.W.3d 762, 771 (Tex. App.—Dallas 2010, pet.
denied). Because Ferguson does not challenge the validity of an ordinance or statute,
the City’s immunity is not waived for any part of Ferguson’s suit.
Finally, Ferguson asserts that if we determine his declaratory judgment claims
are actually ultra vires claims that should have been brought against city officials, then
we should remand the case so he can amend his pleadings. See Heinrich, 284 S.W.3d at
371-72 (holding that a suit seeking a declaratory judgment that a governmental official
acted without legal or statutory authority, such as where a statute or the constitution
requires that a contract be performed in a certain way, is an ultra vires claim that must
be brought against the official). But Heinrich clarified that only prospective, not
retrospective, relief is available in an ultra vires claim. City of Dallas v. Albert, 354
S.W.3d 368, 379 (Tex. 2011); Id. at 376. Because Ferguson sought only retrospective
relief, that is, reinstatement as of the time of his termination and back pay, his
declaratory judgment claims must be dismissed. See id.
The City was immune from suit as pled by Ferguson; and thus, the trial court
erred in denying the City’s motion to dismiss. The City’s first issue is sustained.
Because of our disposition of the City’s first issue, we need not address the City’s
remaining issues.
City of Bruceville-Eddy v. Ferguson Page 5 CONCLUSION
The trial court’s order denying the City’s motion to dismiss for lack of
jurisdiction is reversed and a judgment is rendered that Ferguson’s claims be dismissed.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Reversed and rendered Opinion delivered and filed November 1, 2012 [CV06]
City of Bruceville-Eddy v. Ferguson Page 6