Conditionally Granted and Opinion Filed May 10, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-01144-CV
IN RE DALLAS COUNTY, TEXAS AND DALLAS COUNTY CONSTABLE BILL GIPSON, Relators
Original Proceeding from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-19270
MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Carlyle Opinion by Justice Partida-Kipness In this original proceeding, relators Dallas County and Dallas County
Constable Bill Gipson seek mandamus relief from the trial court’s order compelling
them to respond to discovery requests propounded by real parties in interest Bryan
Woodard and Lonny Yarbrough. Relators contend that they are entitled to such relief
because the trial court compelled discovery before considering their pleadings-based
jurisdictional challenges. We stayed the trial court’s order granting real parties’
motion to compel. After reviewing the petition, response, reply, and the record, we
conditionally grant the petition. BACKGROUND
Real parties in interest Bryan Woodard and Lonny Yarbrough are former
Dallas County deputy constables. In November 2018, relator Bill Gipson won the
election for the Dallas County Constable for Precinct 2. Following the election,
Gipson notified Woodard, Yarbrough, and other deputy constables that they would
not be re-sworn as deputy constables when he took office. Although Woodard and
Yarbrough attempted to appeal their adverse employment determinations through
the Dallas County grievance system, they were denied a grievance hearing based on
their dates of hire. Specifically, the County determined they were not covered by the
Dallas County civil service system because they were hired after August 19, 2003.
Woodard and Yarbrough thereafter sued Dallas County and Constable Gipson
for wrongful termination. In their first amended petition (the operative pleading),
Woodard and Yarbrough alleged they were denied their property rights in
employment, denied equal protection under the law because they were not entitled
to grieve adverse employment actions like employees hired before August 19, 2003,
and suffered violations of their grievance rights under section 617.005 of the Texas
Government Code. They further asserted that Dallas County and Constable Gipson
are not immune from suit or from liability because their actions and omissions
deprived and/or damaged real parties’ property rights without due course of law,
denied real parties equal protection under law, and failed to comply with section
617.005 of the Texas Government Code.
–2– Dallas County and Constable Gipson each filed an answer and plea to the
jurisdiction. In their pleas, they asserted that a governmental unit may only be sued
upon a clear and unequivocal waiver of immunity, and that real parties’ pleadings
fail to show such a waiver. They specifically argued that:
Real parties were at-will employees with no property interest to support a due process violation or wrongful termination claim;
Real parties failed to allege ultra vires acts for which relators may be held liable;
Real parties were never covered under the civil service system, and, thus, their allegations do not implicate section 617.005 of the Texas Government Code;
Section 617.005 of the Texas Government Code only provides civil servants with the right to present grievances about wages, hours of employment, or conditions of work, and not about terminations; and
It is the Dallas County Civil Service Commission, and not relators, that determines who is covered by the grievance system.
Shortly after relators filed their pleas to the jurisdiction, Woodard and Yarbrough
filed a motion to compel responses to their discovery requests.
The suit was initially assigned to Judge Aiesha Redmond of the 160th District
Court of Dallas County. Judge Redmond began to hear the pleas to the jurisdiction,
but when real parties’ counsel asked her to consider recusing herself, she stopped
the hearing and recused herself. The case was transferred to Judge Staci Williams of
the 101st District Court of Dallas County.
–3– On November 29, 2021, Judge Williams held a hearing on the motion to
compel discovery. The pending pleas to the jurisdiction were set to be heard on a
later date. At the hearing, Judge Williams advised the parties that she would hear the
motion to compel, but that she reserved her ability to hold the motion to compel in
abeyance until she heard the pleas to the jurisdiction. After hearing the parties’
arguments, the court took the matter under advisement, but asked the parties to
narrow down the discovery requests to immunity-related topics.
On December 2, 2021, before hearing the pleas to the jurisdiction, Judge
Williams issued her order compelling discovery. The order directed relators to
respond to various discovery requests. The order also required Constable Gipson and
a corporate representative for Dallas County to appear for depositions. This
mandamus proceeding followed.
STANDARD OF REVIEW
Entitlement to mandamus relief requires relators to show that the trial court
has clearly abused its discretion and that they have no adequate appellate remedy. In
re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
APPLICABLE LAW
“In Texas, sovereign immunity deprives a trial court of subject matter
jurisdiction for lawsuits in which the state or certain governmental units have been
sued unless the state consents to suit.” Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 224 (Tex. 2004). Sovereign immunity from suit defeats a trial
–4– court’s subject matter jurisdiction and is properly asserted in a plea to the
jurisdiction. Id. at 225–26. “The burden is on the plaintiff to affirmatively
demonstrate the trial court’s jurisdiction.” Heckman v. Williamson Cty., 369 S.W.3d
137, 150 (Tex. 2012).
When a plea raises jurisdictional issues, “[t]he trial court must determine at
its earliest opportunity whether it has the constitutional or statutory authority to
decide the case before allowing the litigation to proceed.” Miranda, 133 S.W.3d. at
226. “A trial court abuses its discretion when it subjects a governmental unit to pre-
trial discovery and the costs incident to litigation without ruling on a plea to the
jurisdiction.” In re Lamar Univ., No. 09-18-00241-CV, 2018 WL 3911062, at *3
(Tex. App.—Beaumont Aug. 16, 2018, orig. proceeding) (mem. op.) (per curium);
see also In re Brown, No. 05-20-00639-CV, 2020 WL 4047965, at *4 (Tex. App.—
Dallas July 20, 2020, orig. proceeding) (mem. op.) (concluding that trial court
abused discretion by deferring ruling on plea to jurisdiction that did not challenge
existence of jurisdictional facts); City of Galveston v. Gray, 93 S.W.3d 587, 591–92
(Tex. App.—Houston [14th Dist.] 2002, orig. proceeding) (concluding that trial
court abused discretion in refusing to rule on city’s and county’s respective pleas to
jurisdiction and allowing plaintiff to conduct discovery on liability).
A plea to the jurisdiction may be presented as either an attack on the
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Conditionally Granted and Opinion Filed May 10, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-01144-CV
IN RE DALLAS COUNTY, TEXAS AND DALLAS COUNTY CONSTABLE BILL GIPSON, Relators
Original Proceeding from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-19270
MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Carlyle Opinion by Justice Partida-Kipness In this original proceeding, relators Dallas County and Dallas County
Constable Bill Gipson seek mandamus relief from the trial court’s order compelling
them to respond to discovery requests propounded by real parties in interest Bryan
Woodard and Lonny Yarbrough. Relators contend that they are entitled to such relief
because the trial court compelled discovery before considering their pleadings-based
jurisdictional challenges. We stayed the trial court’s order granting real parties’
motion to compel. After reviewing the petition, response, reply, and the record, we
conditionally grant the petition. BACKGROUND
Real parties in interest Bryan Woodard and Lonny Yarbrough are former
Dallas County deputy constables. In November 2018, relator Bill Gipson won the
election for the Dallas County Constable for Precinct 2. Following the election,
Gipson notified Woodard, Yarbrough, and other deputy constables that they would
not be re-sworn as deputy constables when he took office. Although Woodard and
Yarbrough attempted to appeal their adverse employment determinations through
the Dallas County grievance system, they were denied a grievance hearing based on
their dates of hire. Specifically, the County determined they were not covered by the
Dallas County civil service system because they were hired after August 19, 2003.
Woodard and Yarbrough thereafter sued Dallas County and Constable Gipson
for wrongful termination. In their first amended petition (the operative pleading),
Woodard and Yarbrough alleged they were denied their property rights in
employment, denied equal protection under the law because they were not entitled
to grieve adverse employment actions like employees hired before August 19, 2003,
and suffered violations of their grievance rights under section 617.005 of the Texas
Government Code. They further asserted that Dallas County and Constable Gipson
are not immune from suit or from liability because their actions and omissions
deprived and/or damaged real parties’ property rights without due course of law,
denied real parties equal protection under law, and failed to comply with section
617.005 of the Texas Government Code.
–2– Dallas County and Constable Gipson each filed an answer and plea to the
jurisdiction. In their pleas, they asserted that a governmental unit may only be sued
upon a clear and unequivocal waiver of immunity, and that real parties’ pleadings
fail to show such a waiver. They specifically argued that:
Real parties were at-will employees with no property interest to support a due process violation or wrongful termination claim;
Real parties failed to allege ultra vires acts for which relators may be held liable;
Real parties were never covered under the civil service system, and, thus, their allegations do not implicate section 617.005 of the Texas Government Code;
Section 617.005 of the Texas Government Code only provides civil servants with the right to present grievances about wages, hours of employment, or conditions of work, and not about terminations; and
It is the Dallas County Civil Service Commission, and not relators, that determines who is covered by the grievance system.
Shortly after relators filed their pleas to the jurisdiction, Woodard and Yarbrough
filed a motion to compel responses to their discovery requests.
The suit was initially assigned to Judge Aiesha Redmond of the 160th District
Court of Dallas County. Judge Redmond began to hear the pleas to the jurisdiction,
but when real parties’ counsel asked her to consider recusing herself, she stopped
the hearing and recused herself. The case was transferred to Judge Staci Williams of
the 101st District Court of Dallas County.
–3– On November 29, 2021, Judge Williams held a hearing on the motion to
compel discovery. The pending pleas to the jurisdiction were set to be heard on a
later date. At the hearing, Judge Williams advised the parties that she would hear the
motion to compel, but that she reserved her ability to hold the motion to compel in
abeyance until she heard the pleas to the jurisdiction. After hearing the parties’
arguments, the court took the matter under advisement, but asked the parties to
narrow down the discovery requests to immunity-related topics.
On December 2, 2021, before hearing the pleas to the jurisdiction, Judge
Williams issued her order compelling discovery. The order directed relators to
respond to various discovery requests. The order also required Constable Gipson and
a corporate representative for Dallas County to appear for depositions. This
mandamus proceeding followed.
STANDARD OF REVIEW
Entitlement to mandamus relief requires relators to show that the trial court
has clearly abused its discretion and that they have no adequate appellate remedy. In
re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
APPLICABLE LAW
“In Texas, sovereign immunity deprives a trial court of subject matter
jurisdiction for lawsuits in which the state or certain governmental units have been
sued unless the state consents to suit.” Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 224 (Tex. 2004). Sovereign immunity from suit defeats a trial
–4– court’s subject matter jurisdiction and is properly asserted in a plea to the
jurisdiction. Id. at 225–26. “The burden is on the plaintiff to affirmatively
demonstrate the trial court’s jurisdiction.” Heckman v. Williamson Cty., 369 S.W.3d
137, 150 (Tex. 2012).
When a plea raises jurisdictional issues, “[t]he trial court must determine at
its earliest opportunity whether it has the constitutional or statutory authority to
decide the case before allowing the litigation to proceed.” Miranda, 133 S.W.3d. at
226. “A trial court abuses its discretion when it subjects a governmental unit to pre-
trial discovery and the costs incident to litigation without ruling on a plea to the
jurisdiction.” In re Lamar Univ., No. 09-18-00241-CV, 2018 WL 3911062, at *3
(Tex. App.—Beaumont Aug. 16, 2018, orig. proceeding) (mem. op.) (per curium);
see also In re Brown, No. 05-20-00639-CV, 2020 WL 4047965, at *4 (Tex. App.—
Dallas July 20, 2020, orig. proceeding) (mem. op.) (concluding that trial court
abused discretion by deferring ruling on plea to jurisdiction that did not challenge
existence of jurisdictional facts); City of Galveston v. Gray, 93 S.W.3d 587, 591–92
(Tex. App.—Houston [14th Dist.] 2002, orig. proceeding) (concluding that trial
court abused discretion in refusing to rule on city’s and county’s respective pleas to
jurisdiction and allowing plaintiff to conduct discovery on liability).
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. See Miranda, 133 S.W.3d at 226–27. When a plea to the
–5– jurisdiction challenges the pleadings, courts determine if the pleader has met his or
her burden of pleading facts that affirmatively demonstrate the court’s jurisdiction
to hear the cause. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446
(Tex. 1993). Courts construe the pleadings liberally in favor of the plaintiffs and
look to the pleaders’ intent. Id. If the pleadings fail to contain sufficient facts that
affirmatively demonstrate the trial court’s jurisdiction but also do not affirmatively
demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency
and the plaintiffs should be given the 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 giving the plaintiffs an opportunity
to amend. Id. at 227.
When a jurisdictional challenge is evidence-based, however, the jurisdictional
question may be inextricably bound with the merits of the case. Id. at 226. As a
result, a determination regarding the trial court’s subject matter jurisdiction may
require considering evidence. Id. In such situations, the trial court has discretion to
decide whether the jurisdictional determination “should be made at a preliminary
hearing or await a fuller development of the case, mindful that this determination
must be made as soon as practicable.” Id. at 227. The discretion-to-defer issue is
“based on the ultimate question of whether there are apparent genuine issues of
intertwined material fact (which would justify a ‘delay’ in the form of a denial of the
plea to the jurisdiction to allow for ultimate jury/fact finder resolution) or potential
–6– genuine issues of intertwined material fact that have not yet been fully developed
(which would justify a ‘delay’ in the form of an abatement for targeted discovery).”
Tex. Tech Univ. Health Scis.–El Paso v. Flores, 587 S.W.3d 831, 838 n.2 (Tex.
App.—El Paso 2019) (emphasis in original), rev’d on other grounds, 612 S.W.3d
299, 314 (Tex. 2020).
ANALYSIS
Dallas County and Constable Gipson contend the trial court abused its
discretion by compelling discovery before hearing their pleas to the jurisdiction. We
agree. 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.
Without any fact-dependent jurisdictional arguments requiring further
discovery, the trial court was obligated to hear the pleas to the jurisdiction at the
earliest opportunity before considering whether to compel discovery. See City of
Kemah v. Vela, 149 S.W.3d 199, 205 (Tex. App.—Houston [14th Dist.] 2004, pet.
denied) (holding trial court erred in denying plea to jurisdiction to allow additional
discovery because facts were undisputed and “no additional discovery is needed for
us to conclude that, as a matter of law, sovereign immunity is not waived”). Because
relators’ jurisdictional challenges are solely based on the sufficiency of the pleadings
and there is no fact issue to be resolved, we conclude the trial court abused its
–7– discretion by compelling any discovery before considering the pleas to the
jurisdiction. Further, even if this were a situation where the court was permitted to
compel targeted discovery (and it is not), we conclude that the ordered discovery is
not confined to jurisdictional issues.
Dallas County and Constable Gipson also lack an adequate remedy by appeal.
The trial court’s discovery order effectively requires them to suffer the burden and
expense of litigation before their claims of immunity from suit have been
determined—a harm that cannot be adequately remedied on appeal.
Accordingly, Dallas County and Constable Gipson have demonstrated their
entitlement to mandamus relief because the trial court erroneously compelled
discovery before considering their pleadings-based jurisdictional challenges, and
they lack an adequate appellate remedy. Having reached this conclusion, we decline
to consider their remaining arguments.
CONCLUSION
We conclude the trial court abused its discretion by compelling discovery
before hearing relators’ pleadings-based jurisdictional challenges, and the trial
court’s order leaves relators without an adequate remedy by appeal. Accordingly,
we conditionally grant the petition for writ of mandamus and lift the stay imposed
by our order dated December 23, 2021. We direct the trial court to vacate its
December 2, 2021 order on real parties’ first motion to compel discovery within
–8– fifteen days of this opinion and to hear the pending pleas to the jurisdiction at its
earliest opportunity. A writ will issue only if the trial court fails to comply.
/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS JUSTICE
211144F.P05
–9–