Sheriff Leo Samaniego, in His Individual and Official Capacity, and El Paso County, Texas v. Janet Keller, Antonio Escobedo and Linda Hartt-Goggin

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ SHERIFF LEO SAMANIEGO, IN HIS INDIVIDUAL AND OFFICIAL § CAPACITY, and EL PASO COUNTY, No. 08-08-00104-CV TEXAS, § Appeal from Appellants, § 168th District Court v. § of El Paso County, Texas JANET KELLER, § ANTONIO ESCOBEDO, and (TC # 2005-8306) LINDA HARTT-GOGGIN, §

Appellees. §

OPINION

Sheriff Leo Samaniego, in his official capacity, and El Paso County appeal from an order

denying a plea to the jurisdiction and motion to dismiss based on non-compliance with the notice

requirement found in Section 89.0041(a) of the Texas Local Government Code. We dismiss in part

and reverse and render in part.

FACTUAL SUMMARY

Janet Keller, Antonio Escobedo, and Linda Hart-Goggin, Appellees, were employed by the

El Paso County Sheriff’s Office until December 31, 2004.1 When they were not reappointed by

Sheriff Samaniego on January 1, 2005, Appellees appealed pursuant to the collective bargaining

agreement. On August 22, 2005, the El Paso County Civil Service Commission ruled that it did not

1 According to the pleadings, Keller and Escobedo were employed as detention corporals assigned to the jail division and Hartt-Goggin was a deputy sheriff. have jurisdiction to hear the appeals because the three employees had not been terminated, but rather

had not been reappointed at the end of their terms. Appellees filed suit against Sheriff Samaniego

and El Paso County on November 30, 2005, alleging retaliatory discharge under Chapter 451 of the

Texas Labor Code. The suit also included an appeal of the Civil Service Commission’s decision

pursuant to Section 158.037 of the Texas Local Government Code. El Paso County filed a plea to

the jurisdiction and a motion to dismiss pursuant to Section 89.0041 of the Texas Government Code

alleging that the trial court lacked jurisdiction because Appellees did not deliver written notice of

the suit to the county judge and the county or district attorney having jurisdiction to defend the

county in a civil suit. At the hearing on the plea, the County and Sheriff Samaniego offered evidence

that Appellees did not give the statutory notice within thirty days of filing suit. The trial court denied

the plea to the jurisdiction and the motion to dismiss. This appeal follows.

NOTICE AS A JURISDICTIONAL REQUIREMENT

In its first issue on appeal, El Paso County2 contends that the trial court abused its discretion

by denying the plea to the jurisdiction and motion to dismiss because the undisputed evidence

established that Appellees failed to give the requisite notice.3

Standard of Review

A plea to the jurisdiction contests a trial court’s subject matter jurisdiction. Bland

Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); City of El Paso v. Maddox,

276 S.W.3d 66, 70 (Tex.App.--El Paso 2008, pet. denied). Whether a court has subject matter

2 Sheriff Samaniego died while this case was pending. It is well established that a suit against an official in his official capacity is effectively a suit against the governmental entity. El Paso County v. Alvarado, 290 S.W .3d 895, 897 n.2 (Tex.App.--El Paso 2009, no pet.). For convenience, we will refer to the Appellants as El Paso County throughout the opinion.

3 During oral argument, the County abandoned this contention based upon our recent decision in El Paso County v. Alvarado, 290 S.W .3d 895, 898-99 (Tex.App.--El Paso 2009, no pet.). Because we must clarify a portion of that opinion, we will address the issue in part. jurisdiction is a question of law which we review de novo. Texas Department of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Maddox, 276 S.W.3d at 70. Similarly, whether

undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction is also a question

of law subject to de novo review. Id. If the relevant evidence is undisputed or fails to raise a fact

question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of

law. Id. at 228. This standard generally mirrors that of summary judgment under TEX .R.CIV .P.

166a(c). Id.

Section 89.0041

Section 89.0041 requires a person filing suit against a county or county official in his or her

official capacity to deliver written notice to the county judge and to the county or district attorney

having jurisdiction to defend the county in a civil suit. TEX .LOCAL GOV ’T CODE ANN . § 89.0041(a)

(Vernon 2008). The written notice must be delivered within thirty days after suit is filed and must

contain the style and cause number of the suit, the court in which the suit was filed, the date on

which the suit was filed, and the name of the person filing suit. TEX .LOCAL GOV ’T CODE ANN .

§ 89.0041(b). If a person fails to give notice, the governmental defendants are entitled to dismissal

upon filing a motion to dismiss. TEX .LOCAL GOV ’T CODE ANN . § 89.0041(c). In 2005, the

Legislature amended Section 311.034 of the Government Code to provide that: “Statutory

prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits

against a governmental entity.” TEX .GOV ’T CODE ANN . § 311.034 (Vernon Supp. 2009).

This court has held that Section 89.0041(a)’s requirement that notice be given after suit is

filed is not jurisdictional because a notice provision is jurisdictional under Section 311.034 only if

it is a prerequisite to a suit. Alvarado, 290 S.W.3d at 898-99. Other appellate courts have reached

the same conclusion. See Roccaforte v. Jefferson County, 281 S.W.3d 230, 232-33 (Tex.App.-- Beaumont 2009, pet. filed); County of Bexar v. Bruton, 256 S.W.3d 345, 349 (Tex.App.--San

Antonio 2008, no pet.); Dallas County v. Coskey, 247 S.W.3d 753, 755-56 (Tex.App.--Dallas 2008,

pet. denied). We adhere to our holding.

Appellate Court Jurisdiction

In Alvarado, we dismissed for want of jurisdiction that portion of the appeal complaining of

the trial court’s ruling on the County’s motion to dismiss but we affirmed the trial court’s order

insofar as it denied the County’s plea to the jurisdiction. Id. at 898-99, citing TEX .CIV .PRAC.&REM .

CODE ANN . § 51.014(a)(8). Section 51.014(a)(8) allows an appeal from an interlocutory order that

“grants or denies a plea to the jurisdiction by a governmental unit.” TEX .CIV .PRAC.&REM .CODE

ANN . § 51.014(a)(8)(Vernon 2008). The Texas Supreme Court has held, however, that not every

plea to the jurisdiction can be appealed pursuant to Section 51.014(a)(8). Texas Department of

Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004); University of Texas Southwestern

Medical Center v. Loutzenhiser, 140 S.W.3d 351, 365-66 (Tex. 2004).4 We must look to the

substance of the issue raised in the plea to determine if an interlocutory appeal is permitted. Simons,

140 S.W.3d at 349; Loutzenhiser, 140 S.W.3d at 365-66. The reference in Section 51.014(a)(8) to

“plea to the jurisdiction” is not to a particular procedural vehicle but to the substance of the issue

raised. Simons, 140 S.W.3d at 349. Thus, an interlocutory appeal may be taken from a refusal to

dismiss for want of jurisdiction whether the jurisdictional argument is presented by plea to the

jurisdiction or some other vehicle such as a motion for summary judgment. Id. An interlocutory

appeal cannot be taken from the denial of a plea to the jurisdiction that does not raise an issue that

4 The Legislature effectively overruled Loutzenhiser’s holding that Section 101.101’s notice requirement is not jurisdictional by amending Section 311.034 of the Government Code. T EX .G OV ’T C O D E A N N . § 311.034. The rule stated in Simons and Loutzenhiser that not every plea to the jurisdiction can be appealed pursuant to Section 51.014(a)(8) is still good law. can be jurisdictional. Id. In Simons, the Supreme Court determined that the notice requirement

found in Section 101.101 of the Government Code is not jurisdictional such that an interlocutory

appeal is not permitted. Id. at 349. Instead, the proper disposition is for the appellate court to

dismiss the appeal for want of jurisdiction. Id.

Because non-compliance with Section 89.0041’s notice requirement is not a jurisdictional

issue, we lack jurisdiction to review the denial of the plea or the denial of the motion to dismiss

based on the lack of notice. See Simons, 140 S.W.3d at 349. We misspoke in Alvarado when we

affirmed the trial court’s order instead of dismissing the appeal. In this case, we dismiss for want

of jurisdiction that portion of the appeal challenging the trial court’s ruling on the plea to the

jurisdiction and the motion to dismiss based on the lack of notice under Section 89.0041(a).5

UNTIMELY APPEAL OF

CIVIL SERVICE COMMISSION’S DECISION

In its second issue, the County challenges the trial court’s denial of the plea to the jurisdiction

based on Appellees’ failure to timely appeal the Civil Service Commission’s decision by filing a

petition in district court within thirty days. Section 158.037(a) of the Texas Local Government Code

provides:

(a) An employee who, on a final decision by the commission, is demoted, suspended, or removed from a position may appeal the decision by filing a petition in a district court in the county within 30 days after the date of the decision.

TEX .LOCAL GOV ’T CODE ANN . § 158.037(a)(Vernon 2008).

The right to appeal the decision of an administrative agency is a statutory right. Bouldin v.

Bexar County Sheriff’s Civil Service Commission, 12 S.W.3d 527, 529 (Tex.App.--San Antonio

5 The parties address a number of issues related to substantial compliance with the notice requirement. Because we lack jurisdiction to review the trial court’s ruling on the motion to dismiss, we express no opinion on these issues. 1999, no pet.). The applicable statutory provisions are mandatory and exclusive and must be

complied with fully for the district court to have jurisdiction of the appeal. Id. The event which

triggers the appellate period set forth in Section 158.037(a) is the date of the final decision of the

Civil Service Commission. Id. Section 158.037(a) does not define what constitutes a “final

decision”, but the Texas Supreme Court has defined a final agency order as one (1) that is definitive;

(2) promulgated in a formal manner; (3) with which the agency expects compliance; and (4) that

imposes an obligation, denies a right, or fixes some legal relationship as a consummation of the

administrative process. Texas-New Mexico Power Co. v. Texas Indus. Energy Consumers, 806

S.W.2d 230, 232 (Tex. 1991).

At the hearing on August 22, 2005, the Civil Service Commission determined by a

unanimous vote that it did not have jurisdiction of the appeals6, but it did not reduce its ruling to

writing. The transcription of that meeting reflects that Appellees were present. In the hearing on

the plea to the jurisdiction, the trial court expressed concern that the Commission’s decision had not

been reduced to writing. The court took the plea to the jurisdiction under advisement and later

entered an order denying the plea without specifying the basis for the ruling.

Appellees have cited no authority requiring that the Commission’s ruling be in writing to

trigger the appellate period set forth in Section 158.037(a). The transcript of the hearing reflects that

one of the commissioners tendered a formal motion that the Commission find it did not have

jurisdiction of the appeals. The motion was seconded, and it carried by a unanimous vote of the

commissioners. Thus, the ruling of the Commission was definitive and promulgated in a formal

manner. See Texas-New Mexico Power, 806 S.W.2d at 232. It is also clear that the Commission

expected compliance with its ruling. Id. We conclude that the Commission’s decision was final on

6 All parties agreed during oral argument that the Commission’s determination was erroneous. August 22, 2005. Section 158.037 required Appellees to appeal by filing a petition in district court

within thirty days, but they failed to do so.

Appellees counter that the time limitation does not apply because they were not demoted,

suspended, or removed from their employment positions as contemplated by Section 158.037(a).

The statute presumes that the employee has suffered an adverse employment decision. Appellees

suffered an adverse employment decision when they were not re-appointed. While the Commission

may have erroneously determined that it lacked jurisdiction because of a semantical distinction, the

employees were nevertheless required to initiate a lawsuit to address the merits of their complaints.

Judicial review mandates compliance with the statutory procedural requisites. We sustain Issue

Two, reverse the trial court’s order denying that portion of the plea to the jurisdiction, and render

judgment granting the plea to the jurisdiction related to the appeal filed pursuant to Section 158.037.

March 17, 2010 ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, J., and Macias, Judge Macias, Judge, sitting by assignment