Zachary D. Leonard v. City of Burkburnett, Texas, Lawrence Cutrone and Eddie Stahr

• Court: Court of Appeals of Texas
• Decided: November 2, 2023
• Docket: 02-22-00266-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00266-CV ___________________________

ZACHARY D. LEONARD, Appellant

V.

CITY OF BURKBURNETT, TEXAS; LAWRENCE CUTRONE; EDDIE STAHR; MICHAEL GUEVARA; AND FRED TILLMAN, Appellees

On Appeal from the 30th District Court Wichita County, Texas Trial Court No. DC30-CV2021-0581

Before Kerr, Bassel, and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

Appellant Zachary D. Leonard, formerly employed as a police officer by

Appellee City of Burkburnett, Texas (the City), filed a lawsuit against the City and

certain individuals either currently or formerly employed by it—Appellees Lawrence

Cutrone, Eddie Stahr, Michael Guevara, and Fred Tillman (collectively, the Individual

Defendants)1—following the 2019 termination of his employment. Appellees filed

pleas to the jurisdiction, requesting that the trial court dismiss all of Leonard’s claims

brought against them for lack of subject matter jurisdiction. Through two separate

orders, the trial court granted the pleas to the jurisdiction and dismissed all of

Leonard’s claims. Leonard raises twelve issues in this appeal; underlying all of his

complaints is the general argument that the trial court erred by granting the pleas to

the jurisdiction and dismissing all of his claims against Appellees. We will affirm in

part and reverse and remand in part.

1 Cutrone was the City Manager while this suit was pending in the trial court, and Stahr is the former Chief of Police. As of November 2022, Tillman was the Chief of Police, and Guevara the City Attorney. Although we refer to Cutrone, Stahr, Guevara, and Tillman collectively as the Individual Defendants, Leonard purported to sue them in both their official capacities and their individual capacities. In our discussion, we will address Leonard’s claims against the Individual Defendants in both capacities.

2 II. BACKGROUND

A. Leonard is employed by the City as a police officer, organizes efforts to obtain civil-service protection for the City’s police-department employees, injures a teenager during a soccer game, and is fired by the City.

As alleged in his live petition, Leonard began his employment as a police

officer for the City in 2005. While employed by the City, Leonard was a founding

member of the Burkburnett Police Association (the Association), and he served

numerous terms as the Secretary-Treasurer of the Association. In 2018, the

Association identified alleged morale issues and leadership deficiencies in the City’s

police department. That same year, the Association undertook an effort to obtain

voter approval for civil-service protection for the City’s police-department employees.

Leonard “was the primary participant in the effort to obtain approval for civil

service.” According to Leonard, the City’s leadership—including Stahr, the City’s

police chief at the time—opposed the Association’s efforts to obtain voter approval

for civil-service protection. As alleged by Leonard, City leaders retaliated against

Association members by making “threats of shift changes . . . and demotions.”

In December 2018—while public debate concerning the civil-service issue was

ongoing—Leonard participated in an alumni soccer game at Burkburnett High

School. During that soccer game, Leonard collided with a teenager on the opposing

team, causing the teenager to suffer injuries. The teenager’s parent filed a complaint

with the City’s police department concerning the incident. According to Leonard,

3 Stahr told him that he would be subjected to an internal affairs investigation and a

criminal investigation 2 due to the incident.

2 Throughout his pleadings in the trial court, including in his live petition, Leonard alleged that he was subjected to “a retaliatory internal affairs investigation” and a “retaliatory criminal investigation” due to the soccer-game incident, that he was arrested and charged with assault stemming from that incident, that the “frivolous criminal prosecution” stemming from the incident was later dropped, that he was pursuing an expunction relating to his arrest and charge, and that Appellees had opposed his expunction with “overt acts . . . intended to violate [his] civil rights.” On appeal, Leonard filed in this court a “Motion to Request that Oral Argument Not be Uploaded to the Court’s Website and to Request Redactions of the Record and Appellees’ Brief” (the Motion). In the Motion, Leonard stated that an expunction order had been granted in his favor in July 2022 and that Appellees and others had violated that order by discussing expunged matters in their brief. He requested that we not upload oral argument of this appeal to our website, and he asked that we “order appropriate redactions of the appellate record and . . . of Appellees’ Brief,” as consistent with the expunction order. In light of the Motion, we ordered that the submission of the appeal would take place without oral argument, and we ordered Leonard to “provide us references to the specific language in the appellate record and Appellees’ Brief that he request[ed] to be redacted.” In response, Leonard filed an amended motion (the Amended Motion) in which he provided a laundry list of hundreds of statements contained in the clerk’s record, reporter’s record, Appellees’ brief, and filings in our court that he sought to be redacted.

We deny Leonard’s Motion and his Amended Motion. In reaching that decision, we note that most of the portions of the record that Leonard asks to be redacted are statements that he himself made in the record (for example, statements he made in a petition, an affidavit, or a response to a plea to the jurisdiction). Thus, Leonard himself has put at issue in this case the circumstances regarding the investigation of the soccer-game incident, his arrest, his prosecution, and his expunction proceeding. Although Leonard argues in his Amended Motion that this suit is not a proceeding that arises out of the arrest, the gist of his claims is that City officials––opposed to his Association involvement and civil-service system support–– conspired to have sham criminal charges brought against him to mask the true reason that they terminated his employment. Having put the subject matter of the expunged records front and center in his lawsuit, he cannot now hide behind the expunction order, and we decline to make his requested redactions. See Goss v. Hous. Cmty. Newspapers, 252 S.W.3d 652, 656 (Tex. App.—Houston [14th Dist.] 2008, no pet.)

4 In April 2019, Leonard was fired by Cutrone—the City Manager at the time—

allegedly due to the soccer-game incident. According to Leonard, Cutrone conducted

no investigation, completed no interviews, and reviewed no evidence prior to firing

him. Leonard also received a “General Discharge” on his Texas Commission on Law

Enforcement (TCOLE) Form F-5, “Separation of Licensee.” See Tex. Occ. Code

Ann. § 1701.452. Leonard alleges that Tillman—Stahr’s successor as the City’s police

chief—“did not review any documents, statements, or evidence before designating

Leonard’s F-5 as a General Discharge” and made that designation based solely on

instructions from Cutrone and Guevara—the City’s attorney.

Leonard appealed his termination to Cutrone but was dissatisfied with the

purported lack of “any hearing on his grievance” and with the City’s alleged failure to

follow proper procedure regarding the appeal of his termination as outlined in the

City’s Personnel Policy Handbook.3 Leonard also challenged the “General

(“[B]y bringing this lawsuit regarding his arrest, Goss put the expunged records at issue, and thus appellees are entitled to use them.”); City of Fort Worth v. D.T., 165 S.W.3d 425, 430 (Tex. App.—Fort Worth 2005, no pet.) (“Fort Worth may release, disseminate, or use any of its records that are classified as ‘expunged records’ for the purpose of defending itself in a proceeding arising out of the arrest to the same extent as any entity or member of the general public in the same situation.”); W.V. v. State, 669 S.W.2d 376, 379 (Tex. App.—Dallas 1984, writ ref’d n.r.e.) (“If the petitioner should file a civil action arising out of his arrest, he necessarily by his own allegations makes the materials contained in the expunged records, as well as the contents of the expunction file, a matter of public record subject to discovery proceedings.”). 3 Leonard never explains what this procedure entails, nor does he allege how Appellees failed to follow it. Leonard acknowledges that he spoke at a February 2021

5 Discharge” designation on his F-5, appealing that designation to the State Office of

Administrative Hearings (SOAH).

B. Leonard files his original petition against the City, Cutrone, and Stahr.

In March 2021, Leonard filed his original petition against the City, Cutrone,

and Stahr, alleging the following claims: (1) denial of his rights without due course of

law; (2) denial of equal protection under the law; (3) denial of his right to free speech;

(4) denial of his right to freely associate and assemble;4 (5) wrongful termination;

(6) denial of his right to petition; (7) violation of Section 617.005 of the Government

Code; and (8) civil conspiracy (collectively, the Eight Claims). Included in his

description of the Eight Claims is the allegation that Stahr and Cutrone engaged in

official oppression. Leonard’s petition also included a claim against the City for an

alleged violation of the Texas Open Meetings Act (TOMA). Leonard sought

declaratory relief, injunctive relief, mandamus relief, and attorney’s fees, but he

expressly denied “seeking money damages.”

meeting of the Board of Commissioners concerning his termination, but he alleges that because his grievance was not an agenda item, the Board was prohibited by law from acting on it. 4 For ease of discussion, we will refer generally to the right to assemble when discussing Leonard’s claims concerning his right to freely associate and assemble. See Zaatari v. City of Austin, 615 S.W.3d 172, 195–98 (Tex. App.––Austin 2019, pet. denied) (discussing the interplay of the right of assembly secured in the Texas Constitution and the right to associate, which is “instrumental to the First Amendment’s free speech, assembly, and petition guarantees” (quoting Osterberg v. Peca, 12 S.W.3d 31, 46 (Tex. 2000))).

6 C. The City, Cutrone, and Stahr file an answer, special exceptions, and a plea to the jurisdiction; Leonard responds to the plea to the jurisdiction and files his first amended petition; and the trial court grants the plea to the jurisdiction with respect to the Eight Claims.

The City, Cutrone, and Stahr answered Leonard’s lawsuit and filed special

exceptions.5 They also filed a plea to the jurisdiction, arguing that Leonard’s request

for injunctive relief was unverified in contravention of Rule 682 of the Rules of Civil

Procedure, that he had failed to plead a cognizable action in equity and thus had failed

to invoke a waiver of immunity, that his claim for the alleged violation of Section

617.005 of the Government Code was not actionable, that he had failed to invoke the

trial court’s jurisdiction under TOMA, that he had failed to properly plead any

declaratory judgment action for which immunity was waived, that his plea of “no

5 The trial court did not rule on these special exceptions. In his reply brief, Leonard contends that the trial court should have ruled on the special exceptions, primarily in support of his argument that he should have been given the opportunity to replead his allegations. Although the City, Cutrone, and Stahr filed these special exceptions in response to Leonard’s original petition, they did not file new special exceptions––or re-urge these special exceptions––in response to any of Leonard’s amended petitions. Thus, these special exceptions became moot, and the trial court did not err by failing to rule on them. See Wang v. Univ. of Tex. at Austin, No. 04-13- 00065-CV, 2013 WL 5570824, at *2 (Tex. App.––San Antonio Oct. 9, 2013, no pet.) (mem. op.). Moreover, to the extent that Leonard attempts to assert that Appellees’ argument that he failed to plead facially valid theories of recovery could only be raised via special exceptions rather than a plea to the jurisdiction, we overrule such a complaint. A governmental entity is not required to use special exceptions to challenge the facial validity of a plaintiff’s pleadings for immunity purposes and may instead do so in a plea to the jurisdiction. See Jefferson County v. Jackson, 557 S.W.3d 659, 673 n.12 (Tex. App.––Beaumont July 26, 2018, no pet.). Thus, despite Leonard’s arguments, the special exceptions filed by the City, Cutrone, and Stahr in their original answer are irrelevant to our analysis.

7 damages” was a sham to avoid immunity, and that he had failed to exhaust

administrative remedies with the Texas Workforce Commission’s Civil Rights

Division.

Leonard responded to the plea to the jurisdiction, contending that the trial

court had jurisdiction over his claims. Leonard also filed his first amended petition,

which asserted the same claims as his original petition but also included his signed

affidavit in support of the first amended petition’s allegations.

The trial court later held a hearing on the plea to the jurisdiction and took the

plea under advisement. Two weeks after the hearing, the trial court signed an order

granting the plea to the jurisdiction with respect to the Eight Claims and dismissing

the Eight Claims for want of subject matter jurisdiction. As to Leonard’s “remaining

claims not dismissed,” the trial court “allowed [Leonard] the opportunity to amend his

pleadings . . . no later than 5:00 PM on October 8, 2021.”

D. Leonard files his second amended petition; the City, Cutrone, and Stahr file their first amended plea to the jurisdiction.

At 4:59 p.m. on October 8, 2021, Leonard filed his second amended petition.

Despite the trial court’s previous dismissal of the Eight Claims, Leonard included all

of them in his second amended petition, including his allegations that Cutrone and

Stahr had engaged in official oppression. The second amended petition also included

a claim against the City for a TOMA violation, and it included a new claim against the

City, Cutrone, and Stahr for the purported violation of Section 614.023 of the

8 Government Code. Leonard continued to seek declaratory relief, injunctive relief,

mandamus relief, and his attorney’s fees.

Later that month, the City, Cutrone, and Stahr filed their first amended plea to

the jurisdiction. They argued that Leonard’s second amended petition wrongfully

included the Eight Claims that had already been dismissed by the trial court. They

also argued that Leonard had again failed to plead any cognizable cause of action for

which immunity had been waived and, thus, that he had not invoked the trial court’s

subject matter jurisdiction. Specifically, they addressed each of the claims brought by

Leonard in his second amended petition—including the Eight Claims—arguing that

each of his claims was not a viable cause of action over which the trial court had

jurisdiction.

E. Leonard files his third amended petition, adding Guevara to the suit; he later files his fourth amended petition, adding Tillman.

In February 2022, Leonard filed a third amended petition, in which he added

Guevara as a defendant. That petition again included the Eight Claims—alleged

against “Defendants.”6 It also included his claim for the alleged violation of

Section 614.023 of the Government Code, although it no longer included his claim

against the City for the purported TOMA violation. Leonard’s third amended

petition also added a claim against the “Defendants” for an alleged violation of

6 The petition does not define “Defendants” as a term, but it expressly refers to the City, Cutrone, Stahr, Tillman, and Guevara as a “Defendant.”

9 Chapter 101 of the Labor Code. Leonard again sought declaratory relief, injunctive

relief, mandamus relief, and attorney’s fees, and he added a request for the equitable

remedy of reinstatement.

The trial court later entered a scheduling order establishing certain deadlines in

the case, including a deadline of 5:00 p.m. on February 18, 2022, for Leonard to file

any amended pleadings. The trial court warned, “No additional amendments shall be

permitted to [Leonard] without [his] first obtaining leave of Court.”

At 4:59 p.m. on February 18, 2022, Leonard filed his fourth amended

petition—his live pleading at the time the trial court granted the first amended plea to

the jurisdiction. The fourth amended petition added Tillman as a defendant. It also

included the Eight Claims—once again, alleged against “Defendants”––and Leonard’s

claim for the alleged violation of Section 614.023 of the Government Code. The

fourth amended petition seemingly7 added Tillman to the list of those alleged to have

violated Chapter 101 of the Labor Code, and it added a new claim against all

Appellees alleging a violation of Section 180.001 of the Local Government Code.

Further, Leonard accused each of the Individual Defendants of engaging in official

oppression and “abuse of authority”; he accused Stahr of initiating a malicious

7 In the pleading’s description of his claim for the alleged violation of Chapter 101, Leonard specifically referenced “Cutrone, Stahr, and Guevara” but did not reference Tillman. However, he also alluded to the “violations by Defendants.” In his briefing, Leonard clarified that all of his pleaded claims were against the City, every Individual Defendant in his official capacity as an ultra vires claim, and every Individual Defendant in his individual capacity.

10 prosecution and Cutrone and Guevara of committing extortion by offering him an

honorable discharge on his TCOLE F-5 form only if he resigned instead of having his

employment terminated. For all of his claims, Leonard once again sought declaratory

relief, injunctive relief, mandamus relief, the equitable remedy of reinstatement, and

his attorney’s fees. As with his previous petitions, Leonard stated that he was “not

seeking money damages.”8

F. Guevara and Tillman answer Leonard’s lawsuit, and Appellees file a supplement to the first amended plea to the jurisdiction.

Guevara and Tillman answered Leonard’s lawsuit. Thereafter, Appellees filed a

supplement to the first amended plea to the jurisdiction in which they urged dismissal

of all of Leonard’s claims brought against them. In that filing, they argued, among

other things, that Leonard’s fourth amended petition included claims that had already

been dismissed, that he had not pleaded a valid cause of action under Chapter 101 of

the Labor Code or Chapter 180 of the Local Government Code, and that he had

failed to allege sufficient jurisdictional facts to support his claims.

G. The trial court grants Appellees’ first amended plea to the jurisdiction, dismisses all of Leonard’s claims, and declines to issue findings of fact and conclusions of law.

Following a hearing on the first amended plea to the jurisdiction, as

supplemented, the trial court granted the first amended plea to the jurisdiction and

8 In some places in the fourth amended petition, Leonard appeared to be seeking damages. However, he later expressly nonsuited any damages allegations in the fourth amended petition.

11 dismissed all of Leonard’s claims against Appellees for want of jurisdiction. Leonard

then requested findings of fact and conclusions of law. After requesting authority

from both sides regarding whether findings of fact and conclusions of law were

required on a trial court’s ruling on a plea to the jurisdiction, the trial court

determined that they were not appropriate, and it signed an order declining to enter

findings of fact and conclusions of law. This appeal followed.

III. DISCUSSION

While Leonard’s brief enumerates twelve issues on appeal, we construe the first

ten of them as encompassing a single general complaint: that the trial court erred by

granting the plea to the jurisdiction and the supplemented first amended plea to the

jurisdiction and by dismissing all of his claims against Appellees. Within that larger

complaint are discrete subarguments regarding particular aspects of the merits of

Leonard’s claims. Because Leonard’s last two issues raise procedural challenges that

could obviate the need for us to consider the remaining ten, we address them out of

order.

A. Findings of fact not required

In his twelfth issue, Leonard contends that the trial court erred by failing to

enter findings of fact and conclusions of law according to Rule of Civil

Procedure 297. Tex. R. Civ. P. 297. But “[f]indings of fact and conclusions of law are

not appropriate after . . . dismissal for want of jurisdiction without an evidentiary

hearing, dismissal based on the pleadings . . . , [or] any judgment rendered without an

12 evidentiary hearing.” Webb v. City of Fort Worth, No. 02-21-00133-CV, 2022 WL

123219, at *8 (Tex. App.—Fort Worth Jan. 13, 2022, no pet.) (mem. op.) (quoting

IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997)). Because

the trial court’s ruling here was based solely on the pleadings––whether Leonard had

successfully pleaded a valid waiver of immunity for each claim––we hold that the trial

court did not err by declining to enter findings of fact and conclusions of law. See

Norman v. Williamson, No. 03-19-00297-CV, 2021 WL 500415, at *4 (Tex. App.––

Austin Feb. 11, 2021, pet. denied) (mem. op.). We overrule Leonard’s twelfth issue,

and we also overrule his seventh issue, in which he argues that the trial court

improperly resolved fact issues at the pleading stage.

B. Tillman and Guevara’s jurisdiction challenge sufficient

In his eleventh issue, Leonard contends that the trial court erred by dismissing

the claims against Tillman and Guevara because neither of them filed a dispositive

motion challenging the Eight Claims. However, Tillman and Guevara expressly

joined the “Defendants’ Supplement to Defendants’ First Amended Plea to the

Jurisdiction,” in which “Defendants[, defined to include Tillman and Guevara,]

reassert[ed] and incorporate[d] the arguments already on file in th[e] case.” The

“Defendants’ First Amended Plea to the Jurisdiction” included the jurisdictional

arguments that the other Appellees had previously raised in relation to the Eight

Claims, in addition to challenging jurisdiction over the newly pleaded claims. By

expressly joining the supplement and “reassert[ing] and incorporat[ing]” the

13 arguments already on file, Tillman and Guevara challenged jurisdiction over the Eight

Claims. Thus, the trial court did not err by ruling on the claims against Tillman and

Guevara in deciding the plea to the jurisdiction. See Tex. R. Civ. P. 58 (“Statements in

a pleading may be adopted by reference in a different part of the same pleading or in

another pleading or in any motion, so long as the pleading containing such statements

has not been superseded by an amendment as provided by Rule 65.”). We overrule

Leonard’s eleventh issue.

C. Propriety of dismissal of claims

Throughout his first through tenth issues, Leonard challenges the trial court’s

dismissal of all of his pleaded claims against all Appellees.

1. Sovereign immunity and our standard of review

Sovereign immunity deprives a trial court of subject matter jurisdiction for

lawsuits in which the State has been sued unless the State consents to the suit. Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Political

subdivisions of the State, including cities, are entitled to such immunity—referred to

as “governmental immunity”—unless it has been waived. Reata Constr. Corp. v. City of

Dallas, 197 S.W.3d 371, 374 (Tex. 2006) (op. on reh’g); Wichita Falls State Hosp. v.

Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).

An individual employee of a governmental entity also may be entitled to

governmental immunity if he is sued in his official capacity. Walker v. Hartman,

No. 09-19-00061-CV, 2020 WL 1465973, at *3 (Tex. App.—Beaumont Mar. 26, 2020,

14 no pet.) (mem. op.); Nueces County v. Ferguson, 97 S.W.3d 205, 214 (Tex. App.—Corpus

Christi–Edinburg 2002, no pet.). However, even if a governmental entity’s immunity

is not waived, a governmental official can nevertheless be subject to suit in his or her

official capacity under the ultra vires exception. City of El Paso v. Heinrich, 284 S.W.3d

366, 370, 372–73 (Tex. 2009) (noting that although governmental entity itself retains

immunity from an ultra vires suit, “for all practical purposes,” such a suit is against the

entity). To state a claim under this exception, a plaintiff must allege that the named

official or governmental employee acted without legal authority or failed to perform a

ministerial act. Honors Acad., Inc. v. Tex. Educ. Agency, 555 S.W.3d 54, 68 (Tex. 2018).

The standard for an ultra vires act is whether it was done without legal authority, not

whether it was correct. Hall v. McRaven, 508 S.W.3d 232, 243 (Tex. 2017). Therefore,

it is not an ultra vires act for an official to make an erroneous decision within the

authority granted. Id. at 242.

The assertion of governmental immunity and the applicability of the ultra vires

exception are matters properly raised in a plea to the jurisdiction. City of Fort Worth v.

Posey, 593 S.W.3d 924, 927 (Tex. App.—Fort Worth 2020, no pet.). A plea to the

jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject matter

jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). A plea to the

jurisdiction may be utilized to challenge whether a plaintiff has alleged facts that

affirmatively demonstrate the trial court’s jurisdiction to hear the case or to challenge

the existence of jurisdictional facts. Mission Consol. Indep. Sch. Dist. v. Garcia,

15 372 S.W.3d 629, 635 (Tex. 2012). Whether a trial court has subject matter

jurisdiction, whether a plaintiff has alleged facts that affirmatively demonstrate a trial

court’s subject matter jurisdiction, and whether undisputed evidence of jurisdictional

facts establishes a trial court’s subject matter jurisdiction are questions of law that we

review de novo. City of Westworth Vill. v. City of White Settlement, 558 S.W.3d 232, 239

(Tex. App.—Fort Worth 2018, pet. denied) (citing Miranda, 133 S.W.3d at 226).

When a plea to the jurisdiction challenges the pleadings—as was done here—

we determine if the plaintiff has alleged facts that affirmatively demonstrate the trial

court’s jurisdiction to hear the case. Tex. Dep’t of Crim. Just. v. Rangel, 595 S.W.3d 198,

205 (Tex. 2020) (citing Miranda, 133 S.W.3d at 226). In making that determination, we

liberally construe the pleadings in the plaintiff’s favor, taking all factual assertions as

true, and looking to the plaintiff’s intent. Id. (citing City of Ingleside v. City of Corpus

Christi, 469 S.W.3d 589, 590 (Tex. 2015)). Even under that liberal construction, the

plaintiff bears the burden of demonstrating, through the facts alleged in his live

pleading, that immunity from suit has been waived. Doe v. City of Fort Worth,

646 S.W.3d 889, 897 (Tex. App.—Fort Worth 2022, no pet.). If the pleadings do not

contain sufficient facts to 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 plaintiff should be afforded the opportunity to amend.

Miranda, 133 S.W.3d at 226–27; City of Westworth Vill., 558 S.W.3d at 239. If, however,

the pleadings are incurably defective—in other words, the allegations affirmatively

16 negate the trial court’s jurisdiction—then a plea to the jurisdiction may be granted

without allowing the plaintiff an opportunity to amend. Tex. A & M Univ. Sys. v.

Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007); Miranda, 133 S.W.3d at 227.

We address the question of whether the trial court has jurisdiction on a claim-

by-claim basis. Tex. Woman’s Univ. v. Rodriguez, No. 02-22-00278-CV, 2022 WL

17687433, at *8 (Tex. App.—Fort Worth Dec. 15, 2022, no pet.) (mem. op.). Thus,

we will analyze each of the claims that the trial court dismissed for lack of subject

matter jurisdiction, starting with the Eight Claims. In addition, because Leonard

alleged both a waiver of sovereign immunity and the applicability of the ultra vires

exception as to each of the Eight Claims, where he has stated a facially valid claim, we

will review both theories. We will address his complaints against the Individual

Defendants in their individual capacities last.

2. Eight Claims

a. Wrongful termination for civil-service-system support and Association affiliation

Three of Leonard’s articulated causes of action––wrongful termination

generally, violation of his right to free speech, and violation of his right to freely

assemble––constitute the same complaint: that the City and the Individual

Defendants wrongfully terminated his employment “in retaliation for [his] exercising

his free speech right and/or his right to freely associate and engage in political

activity.” Specifically, Leonard asserted that Appellees infringed on his free speech

17 and assembly rights by punishing him for his involvement with the Association and

the Association’s attempt to obtain civil-service protection for the City’s police-

department employees.

i. Common law and statutory wrongful termination

Texas law generally permits both employers and employees to terminate the

employment relationship “at any time for any reason” unless a contract provides

otherwise.9 See Hillman v. Nueces County, 579 S.W.3d 354, 358–59 (Tex. 2019); Brown v.

Sabre, Inc., 173 S.W.3d 581, 586 (Tex. App.—Fort Worth 2005, no pet.). Although the

Texas Supreme Court has recognized a “narrow exception” to the at-will employment

doctrine that prohibits employers from terminating employment “for the sole reason

that the employee refused to perform an illegal act,” Sabine Pilot Serv., Inc. v. Hauck,

687 S.W.2d 733, 735 (Tex. 1985), the Texas Legislature has not waived immunity for

such a claim, and Leonard has not made one. See Hillman, 579 S.W.3d at 358–59.

Nor has he pleaded the applicability of any statute that waives immunity for specific

types of employment suits. See, e.g., Tex. Gov’t Code Ann. §§ 554.003, 554.0035

(waiving immunity to the extent of liability for Whistleblower Act violation); Tex. Lab.

Code Ann. §§ 21.051, 21.254 (waiving immunity for civil action based on unlawful

discriminatory termination), §§ 451.001–.003 (waiving immunity for suit based on

9 Here, Leonard has neither identified any written employment contract with the City, nor has he argued that his employment with the City was anything other than “at-will.”

18 discharge for filing, prosecuting, or testifying in workers’ compensation claim). Thus,

to the extent Leonard’s petition can be read as pleading a common law or statutory

wrongful-termination claim unrelated to any alleged violation of his constitutional

rights, it is not a facially valid claim––against either the City or the City officials––that

would waive immunity from suit. Moreover, Leonard expressly denies that his fourth

amended petition includes such a claim.10 Accordingly, we hold that Leonard did not

plead a facially valid common law or statutory claim for wrongful termination.

ii. Wrongful termination in violation of Texas Constitution

Even though Leonard failed to plead a facially common law or statutory

wrongful-termination claim, he attempted to plead a wrongful-termination claim

based on the Texas Constitution. The Texas Constitution provides a narrow waiver

of immunity from suits for equitable relief sought for a claim of wrongful termination

based on a violation of the right to free speech and the right to assemble. See Arlington

Pro. Firefighters, Int’l Ass’n of Firefighters, AFL-CIO, Loc. 1329 v. City of Arlington, No. 02-

19-00156-CV, 2021 WL 4205012, at *21 (Tex. App.––Fort Worth Sept. 16, 2021, no

pet.) (mem. op.); Caleb v. Carranza, 518 S.W.3d 537, 544 (Tex. App.—Houston [1st

Dist.] 2017, no pet.); see also Wichita Falls State Hosp., 106 S.W.3d at 695 (“In Texas, the

people’s will is expressed in the Constitution and laws of the State. Consequently, to

10 Thus, we need not address either party’s exhaustion-of-remedies arguments applicable solely to statutory wrongful-termination claims and relating to Leonard’s fourth and fifth issues. See Tex. R. App. P. 47.1.

19 waive immunity, consent to suit must ordinarily be found in a constitutional provision

or legislative enactment.” (citations omitted)). Therefore, although a plaintiff

asserting a private cause of action for violation of his constitutional free-speech and

assembly rights cannot recover monetary damages, he can sue for the reinstatement of

employment without back pay and benefits. Arlington Pro. Firefighters, 2021 WL

4205012, at *21 (citing Webb County v. Romo, 613 S.W.3d 633, 636–67 (Tex. App.––San

Antonio 2020, no pet.)); City of Fort Worth v. Jacobs, 382 S.W.3d 597, 599 (Tex. App.––

Fort Worth 2012, pet. dism’d) (relying on City of Beaumont v. Bouillion, 896 S.W.2d 143,

148–49 (Tex. 1995)). But such claims must be facially valid to waive immunity from

suit. Klumb v. Hous. Mun. Emp. Pension Sys., 458 S.W.3d 1, 13 (Tex. 2015). Leonard

argues that he pleaded a facially valid claim that Appellees wrongfully terminated his

employment because he exercised his rights to free speech and assembly.

To prevail on a constitutional retaliation claim involving the right to free

speech or the right to freely assemble,11 a plaintiff must establish that (1) he suffered

11 Both Leonard and Appellees group the analysis of his claim of the denial of his right to free speech with the analysis of his claim of the denial of his right to freely assemble, and we will do the same. Because Leonard’s assembly claim is based on the Association’s voicing of morale concerns and active, vocal support of civil service at the police department, we will refer primarily to speech-based cases. Cf. In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 375 (Tex. 1998) (orig. proceeding) (“Freedom of association for the purpose of advancing ideas and airing grievances is a fundamental liberty guaranteed by the First Amendment.” (emphasis added)); Zaatari, 615 S.W.3d at 195 (noting that Texas has never limited the right to assemble to gatherings for which the sole purpose is to petition the government for the redress of grievances).

20 an adverse employment decision; (2) his exercise of the right to free speech or

assembly involved a matter of public concern; (3) his interest in exercising that right

outweighed the employer’s interest in promoting efficiency; and (4) his exercise of

that right motivated the adverse employment decision. Caleb, 518 S.W.3d at 544

(citing Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001), and applying

First Amendment free-speech retaliation analysis to claim under Texas Constitution);

see also Patel v. Trevino, No. 01-20-00445-CV, 2022 WL 3720135, at *6 (Tex. App.––

Houston [1st Dist.] Aug. 30, 2022, no pet.) (mem. op.) (also applying First

Amendment free-speech retaliation analysis to claim under Texas Constitution);

Arlington Pro. Firefighters, 2021 WL 4205012, at *6 (same). A public employee must

also establish that he spoke as a private citizen, rather than as an employee pursuant

to his official duties.12 Caleb, 518 S.W.3d at 544.

12 “When ‘public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.’” Caleb, 518 S.W.3d at 544 (quoting Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951, 1960 (2006)). But “the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech.” Id. (quoting Lane v. Franks, 573 U.S. 228, 240, 134 S. Ct. 2369, 2379 (2014)). Therefore, when determining if the plaintiff was speaking as an employee or individual, the court must decide “whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” Id. (quoting Lane, 573 U.S. at 240, 134 S. Ct. at 2379)). Appellees do not dispute that Leonard was acting as a private citizen while engaging in the allegedly protected activity.

21 “Speech deals with matters of public concern when it can ‘be fairly considered

as relating to any matter of political, social, or other concern to the community.’”

Snyder v. Phelps, 562 U.S. 443, 453, 131 S. Ct. 1207, 1216 (2011) (quoting Connick v.

Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 1690 (1983)); see also King v. Paxton,

576 S.W.3d 881, 902 (Tex. App.—Austin 2019, pet. denied). Whether speech or an

activity is protected is a question of law. Connick, 461 U.S. at 148 n.7, 103 S. Ct. at

1690 n.7.

In all of his petitions, including the live fourth amended petition, Leonard

contended that his protected speech involved advocating for the City to adopt civil-

service rules for police officers––via the purchasing and placing of signs and door

hangers––and that the City and Individual Defendants were opposed to the

implementation of such a system. He also contended that he suffered adverse

employment actions because of his support of the civil-service system, including an

alleged demotion and termination of his employment. He further pleaded that he was

retaliated against for his participation in the Association and its efforts to bring morale

and leadership problems to the attention of police-department leadership.

Leonard’s latter allegation––that he was retaliated against as an Association

member for the Association’s voicing of morale and leadership issues at the police

department––is not entitled to protection. Although speech about police misconduct

involves a matter of public concern, see Markos v. City of Atlanta, 364 F.3d 567, 570

(5th Cir. 2004), even that speech can be considered private in its larger context when

22 its purpose is not to root out corruption but to address an employee’s working

conditions or to ameliorate the employee’s reputation, see Teague v. City of Flower Mound,

179 F.3d 377, 381, 383 (5th Cir. 1999); Gillum v. City of Kerrville, 3 F.3d 117, 121 (5th

Cir. 1993). Patel, 2022 WL 3720135, at *7. Leonard did not allege that the

Association raised any concerns of leadership misconduct; he simply pleaded that the

Association brought morale and leadership concerns to the police-department

leadership’s attention. Thus, he did not plead a facially valid constitutional-retaliation

claim based on this aspect of his involvement with the Association. See, e.g., Graziosi v.

City of Greenville Miss., 775 F.3d 731, 734, 738–39 (5th Cir. 2015) (determining that

Facebook post critical of police chief’s leadership decision did not involve a matter of

public concern); see also Fitzpatrick v. City of Frankfort, No. 06-38, 2007 WL 2900454,

at *6 (E.D. Ky. Oct. 3, 2007) (“In particular, where the employee’s speech relates only

to internal matters, personnel decisions, or matters of purely personal interest to the

employee/speaker, then the speech cannot be characterized as relating to a matter of

public concern.”), aff’d, 305 F. App’x 258, 265 (6th Cir. 2008).

But Leonard’s allegations regarding the Association’s effort to obtain civil-

service approval are different. Leonard specifically alleged that his and the

Association’s speech and activities about “an election over civil[-]service protection

for police employees of [the] City” were of “significant public concern.” He

described the Association’s efforts as political activity. As pleaded, Leonard’s activity

in furtherance of obtaining civil service at the police department involved a matter of

23 political concern to the community. See Vojvodich v. Lopez, 48 F.3d 879, 885 (5th Cir.

1995) (“In the present case, there can be no question that the claimed activity,

associating with political organizations and campaigning for a political candidate,

related to a matter of public concern.”); Fitzpatrick, 2007 WL 2900454, at *8

(describing speech advocating civil-service implementation as a “politically charged

employment issue[] likely to be of immediate concern to” fire department as employer

and firefighter as employee); cf. Blackwell v. St. Charles Par., No. 05-2105, 2009 WL

2408951, at *1–2, *8–9 (E.D. La. Aug. 4, 2009) (holding that fired employees’ support

of political campaign “addressed a matter of public concern” and that summary

judgment fact issue was raised as to whether employees’ pursuit of civil-service status

was solely for personal gain or was meant to address potential racial discrimination,

making their support about an issue of “serious public concern”).

Appellees contend that Leonard failed to sufficiently plead that his interest in

exercising his rights to free speech and assembly outweighed the City’s interest in

promoting efficiency. See Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S.

563, 568–73, 88 S. Ct. 1731, 1734–37 (1968) (holding that when governmental

employee contends that employer violated the employee’s First Amendment rights,

the court must “arrive at a balance between the interests of the [employee], as a

citizen, in commenting upon matters of public concern and the interest of the State,

as an employer, in promoting the efficiency of the public services it performs through

its employees” and conducting balancing test); see also Engquist v. Or. Dep’t of Agric.,

24 553 U.S. 591, 600, 128 S. Ct. 2146, 2152 (2008) (noting that, in federal constitutional

context, “although government employees do not lose their constitutional rights when

they accept their positions, those rights must be balanced against the realities of the

employment context” and that “in striking the appropriate balance, [the courts must]

consider whether the asserted employee right implicates the basic concerns of the

relevant constitutional provision, or whether the claimed right can more readily give

way to the requirements of the government as employer”). But it is the governmental

entity’s burden to show that a particular discharge was justified in light of the nature

of the expression itself and the entity’s interest in effectively and efficiently fulfilling

its public responsibility. See Connick, 461 U.S. at 150, 103 S. Ct. at 1691–92;

Fitzpatrick, 2007 WL 2900454, at *12 (noting that governmental employer has burden

to show adequate justification for terminating employment based on protected

speech); see also Hanson v. Cameron County, No. B-09-202, 2010 WL 148723, at *6 (S.D.

Tex. Jan. 14, 2010) (noting that application of Pickering balancing test was premature in

review of pleadings’ sufficiency); Blackwell, 2009 WL 2408951, at *9 (noting, in

denying summary judgment, that governmental employer had not argued that

employees’ interest in protected speech was outweighed by employer’s interest in

promoting efficiency). Appellees have not argued or pleaded that Leonard’s

employment was terminated because of his support for civil service and his

Association involvement, nor have they argued or pleaded that the City’s interest in

efficiency and effectiveness outweighed Leonard’s right to engage in that expression.

25 In fact, Appellees appear to dispute what Leonard clearly pleaded for this cause of

action: that the motivating factor for the termination of his employment was his

support for the civil-service system.13

Accordingly, we conclude under the appropriate standard of review that

Leonard pleaded facially valid claims that his employment was terminated in violation

of his rights of free speech and assembly because of his support for civil-service

implementation at the police department, both as a private citizen and as an

Association member. Thus, we sustain his first issue in part as to these claims.

b. Equal-protection claim

Related to his claims for wrongful termination, Leonard asserted that he was

denied equal protection under the Texas Constitution because of his Association

membership and activity, including support of a civil-service system. See Tex. Const.

art. I, § 3. To establish a viable equal-protection claim under the Texas Constitution,

a plaintiff must show that he was “treated differently from others similarly situated.”

Klumb, 458 S.W.3d at 13.

13 Appellees contend that Leonard failed to plead sufficient facts to support this allegation because it “relies on requiring the trial court to find that reasonable jurors could believe that two counties, a Texas Ranger, and a school district’s police chief were in cahoots with Appellees on a crusade to ruin” Leonard and because the trial court “could have discredited these alleged jurisdictional facts.” But this argument is not based on the applicable standard of review at the pleading stage. See Rangel, 595 S.W.3d at 205 (reiterating established standard of review that requires liberal construction of pleadings, in which we consider all factual assertions true).

26 Appellees argued in the trial court that Leonard’s claim for the denial of equal

protection under the law was insufficient to waive immunity, noting that his allegation

that “others similarly situated were not also deprived of their rights” is conclusory and

that he offered no support for that statement.

In his second amended affidavit, an attachment to his live petition, Leonard

specifically alleged that he had been treated differently from a former City police

officer who had been arrested, charged with, and convicted of driving while

intoxicated. According to Leonard, the City submitted that officer’s TCOLE F-5

form as “Honorably Discharged F-5.” Thus, as to his TCOLE F-5 form, Leonard

claimed he was treated differently from a similarly situated former employee. But for

Leonard, the correction of the TCOLE form is an administrative process, for which a

remedy is provided under the Texas Occupations Code.14 See Act of May 25, 2005,

79th Leg., R.S., ch. 1298, § 3, 2005 Tex. Gen. Laws 4092, 4093 (enacting Tex. Occ.

Code Ann. § 1701.4525, last amended 2013); see also Act of May 28, 2023, 88th Leg.,

R.S., ch. 1104, S.B. 1445, §§ 22(3), 26 (repealing Tex. Occ. Code Ann. § 1701.4525 for

separation of a license holder occurring on or after March 1, 2024 but continuing

14 In his briefing, Leonard alluded to a pending SOAH appeal of the TCOLE F- 5 designation. He did not provide the trial court, and has not provided this court, with statutory authority compelling a specific TCOLE F-5 form designation. Cf. Van Boven v. Freshour, 659 S.W.3d 396, 403–05 (Tex. 2022) (holding that Texas Medical Board officers, in their official capacities, had a ministerial duty to file documentation verifying that initial temporary report of sanctions against physician was void when Board later determined that the allegations in the temporary report had not been proved).

27 prior law for employment separations occurring before that date); Stacks v. Burnet Cnty.

Sheriff’s Off., 565 S.W.3d 860, 862–63 (Tex. App.––Austin Dec. 12, 2018, no pet.)

(involving administrative appeal from SOAH contested-case hearing to correct

TCOLE F-5 form designation). Thus, his TCOLE F-5 form designation cannot be a

valid basis for an equal-protection claim.

Leonard pleaded no other facts indicating that he was treated differently from

any similarly situated employee because of his support of the civil-service system and

Association involvement. Indeed, with regard to his alleged free-speech and free-

assembly activity, he claimed that other Association members and police-department

employees who supported civil-service-system implementation were retaliated against

in some fashion. Although he alleged that he was singled out to be fired because he

“was the primary participant in the effort to obtain approval for civil service,” such a

theory is not a proper basis for a facially valid equal-protection claim. See Engquist,

553 U.S. at 605, 128 S. Ct. at 2155 (rejecting “class of one” equal-protection theory’s

applicability in employment-termination cases when “government employers are

alleged to have made an individualized, subjective personnel decision in a seemingly

arbitrary or irrational manner”); see also Klumb, 458 S.W.3d at 13 n.8 (noting that

“[f]ederal equal-protection cases are instructive with regard to equal-protection

challenges under the Texas Constitution”). Leonard pleaded no facts showing that he

was treated differently from other similarly situated police-department employees;

thus, we conclude that he failed to plead a facially valid equal-protection claim. See

28 Tex. Dep’t of Health v. Rocha, 102 S.W.3d 348, 352, 355 (Tex. App.––Corpus Christi–

Edinburg 2003, no pet.) (concluding that ultra vires equal-protection claim, based on

failure to terminate employment of other employees accused of sexual harassment,

was not facially valid).

c. Due-course-of-law claim

Leonard asserted that Appellees denied his rights without due course of law by

terminating his employment because of his exercise of his free-speech and assembly

rights––without notice, hearing, or the right of appeal. Appellees argued in the trial

court that this claim is invalid and therefore insufficient to waive immunity.

The Texas Constitution provides that “[n]o citizen of this State shall be

deprived of life, liberty, property, privileges[,] or immunities . . . except by the due

course of the law of the land.” Tex. Const. art. I, § 19. Before due-process rights

attach, a plaintiff must have a property or liberty interest that is entitled to

constitutional protection. Klumb, 458 S.W.3d at 15. An at-will employment

relationship does not create a property interest. City of Fort Worth v. Fitzgerald, No. 05-

22-00327-CV, 2023 WL 1813525, at *7 (Tex. App.—Dallas Feb. 8, 2023, no pet.)

(mem. op.). However, “[a] public employer may unconstitutionally deprive its

employee of a liberty interest if it discharges him under stigmatizing circumstances

without giving the employee an opportunity to clear his name.” Caleb, 518 S.W.3d

at 545 (quoting Arrington v. County of Dallas, 970 F.2d 1441, 1447 (5th Cir. 1992)). To

raise a facially valid name-clearing-hearing claim, a plaintiff must allege facts showing

29 that (1) he was a public employee, (2) stigmatizing charges were made against him in

connection with his discharge, (3) the charges were false, (4) the charges were made

public, (5) he requested a name-clearing hearing, and (6) the hearing was denied. Id.

(citing Arrington, 970 F.2d at 1447). The public charges that were made must be so

stigmatizing “that they create a ‘badge of infamy’ [that] destroys the [plaintiff’s] ability

to take advantage of other employment opportunities.” Evans v. City of Dallas,

861F.2d 846, 851 (5th Cir. 1988); Casper v. Tex. Woman’s Univ., No. 02-22-00345-CV,

2023 WL 5617129, at *8 (Tex. App.––Fort Worth Aug. 31, 2023, no pet. h.) (mem.

op.).

Appellees argue on appeal that Leonard failed to plead facts showing a

protected liberty interest because he did not allege that stigmatizing charges were

made against him in connection with his discharge. In his first amended petition,

Leonard expressly complained of the General Discharge rating put on his TCOLE F-

5 form and of the criminal investigation that was pending when he was discharged.

However, he failed to plead facts establishing that either of these events was so

stigmatizing that his reputation and future employment opportunities were damaged.

See Evans, 861 F.2d at 851; see also Caleb, 518 S.W.3d at 545. Thus, he did not plead a

valid due-course-of-law violation claim.

d. Denial of the constitutional right to petition

Leonard based his claim for the denial of his right to petition on Appellees’

alleged refusal to hear his grievance pertaining to the termination. Specifically,

30 although he acknowledged that he was able to file an appeal, which Cutrone denied,

Leonard contended that he was constitutionally entitled to a “hearing” with the City’s

final authority before his employment could be terminated and that he did not receive

one.

The Texas Constitution provides that “citizens shall have the right . . . [to]

apply to those invested with the powers of government for redress of grievances or

other purposes, by petition, address[,] or remonstrance.” Tex. Const. art. I, § 27. The

powers of government have an obligation to “stop, look[,] and listen” and must

“consider the petition, address[,] or remonstrance,” but there is “no requirement that

those trusted with the powers of government must negotiate or even respond to

complaints filed by those being governed.” Pro. Ass’n of Coll. Educators v. El Paso Cnty.

Cmty. Dist., 678 S.W.2d 94, 96 (Tex. App.—El Paso 1984, writ ref’d n.r.e.); see Corpus

Christi Indep. Sch. Dist. v. Padilla, 709 S.W.2d 700, 704 (Tex. App.—Corpus Christi–

Edinburg 1986, no writ) (citing Pro. Ass’n of Coll. Educators for the proposition that

there is no requirement that the powers of government must negotiate or respond to

complaints filed by those being governed and noting that that holding was “a sound

one”). Simply allowing the opportunity to approach the entity with a grievance is

sufficient. See Corpus Christi Indep. Sch. Dist., 709 S.W.2d at 703–05 (holding that

school board’s open forum part of meeting provided sufficient opportunity to address

government under Article I, Section 27).

31 In both his original petition and his live petition, Leonard alleged that he had

“articulated his wrongful[-]termination grievance” at the City Board of

Commissioners15 meeting on February 15, 2021, but that the City’s Board of

Commissioners “could not consider the matter because it was not on the agenda for the

meeting.” [Emphasis added.] According to Leonard, his appearance and articulation

of his complaint was not meaningful because TOMA barred the Board of

Commissioners from actually considering his complaint. But TOMA expressly allows

a member of the public to make an inquiry about a non-agenda item during a Board

of Commissioners meeting. Section 551.042(a) provides as follows,

If, at a meeting of a governmental body, a member of the public or of the governmental body inquires about a subject for which notice has not been given as required by this subchapter, the notice provisions of this subchapter do not apply to:

(1) a statement of specific factual information given in response to the inquiry; or

(2) a recitation of existing policy in response to the inquiry.

Tex. Gov’t Code Ann. § 551.042(a). While Section 551.042(b) states that “[a]ny

deliberation of or decision about the subject of the inquiry shall be limited to a proposal to

place the subject on the agenda for a subsequent meeting,” that subsection

nevertheless allows the Board of Commissioners the opportunity to deliberate on the

15 In his original petition, Leonard referred to the City’s governing entity as the City Council; in his live pleading, he used “City Council” and “Board of Commissioners” interchangeably. Because the record indicates that the correct name of the entity is the Board of Commissioners, we will use that term.

32 complaint at a later date provided the item is properly placed on a meeting agenda. Id.

§ 551.042(b) (emphasis added). It is of no moment here that the Board of

Commissioners declined to propose to place, or place, the matter on a subsequent

agenda for “deliberation of or decision about” Leonard’s grievance because Article I,

Section 27 does not require the Board of Commissioners to hold a hearing or to take

action on the complaint. See Pro. Ass’n of Coll. Educators, 678 S.W.2d at 96. And

Leonard did not allege that any constitutional or statutory provision requires the

Board of Commissioners to place his complaint on a meeting agenda. Thus, Leonard

failed to plead a facially valid claim for the denial of his right to petition.

e. Violation of Section 617.005 of the Government Code

Leonard argues that Appellees violated Section 617.005 of the Government

Code by depriving him of “his statutory right to have his grievance heard by a person

in a position of authority.” Chapter 617 of the Government Code contains a

provision prohibiting State officials from engaging in collective bargaining with public

employees. Tex. Gov’t Code Ann. § 617.002(a). But Section 617.005 provides that

the other parts of Chapter 617 “do[] 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.” Id. § 617.005. The Texas Supreme Court has characterized Section 617.005 as

“granting public-sector unionized employees the limited right ‘to present grievances

concerning their wages, hours of employment, or conditions of work either

33 individually or through a representative that does not claim the right to strike.’” City of

Round Rock v. Rodriguez, 399 S.W.3d 130, 135 (Tex. 2013) (describing and quoting

Section 617.005 in parenthetical).

Although granting unionized public employees this limited right, the Texas

Legislature has not authorized a private cause of action for the violation of

Section 617.005. See Johnson v. Waxahachie Indep. Sch. Dist., 322 S.W.3d 396, 399–400

(Tex. App.—Houston [14th Dist.] 2010, no pet.) (holding that Section 617.005 neither

expressly nor impliedly confers a cause of action). Moreover, “nothing in [chapter

617] clearly and unambiguously waives . . . immunity.” 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.) (quoting 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.)).

Accordingly, the trial court did not err by dismissing Leonard’s claim against the City

for any alleged violation of Section 617.005.

To the extent that Leonard claimed that City officials acted ultra vires by not

complying with Section 617.005, his complaint is not that he was not allowed to

present a grievance; as he pleaded, he “appealed his termination to” Cutrone, who

eventually denied it.16 Leonard’s complaint is that the grievance he was allowed to file

16 According to Leonard’s live pleading, Cutrone “issued a written decision . . . but . . . did not uphold []or overturn” the appeal; instead, Cutrone allegedly told Leonard’s counsel in correspondence, “[Y]our client’s appeal of his termination is denied.”

34 was not sufficient because no hearing was held and because no one in a position of

authority seriously considered his appeal. Leonard cites no authority, and we have not

found any, requiring a full-blown hearing under Section 617.005. See Arlington Pro.

Firefighters, 2021 WL 4205012, at *28; see also Player v. Dallas County, No. 3:12-CV-3947-

N, 2014 WL 12834581, at *4 (N.D. Tex. Feb. 19, 2014) (order); Burleson, 2022 WL

17817965, at *8. Accordingly, we hold that Leonard failed to allege an ultra vires

claim for violation of Section 617.005. We overrule Leonard’s sixth issue challenging

the trial court’s dismissal of his Section 617.005-based claims.

f. Failure to allow Leonard to invoke City appeal process

Included in Leonard’s complaints about the violation of his right to petition

and violation of Government Code Section 617.005 is a complaint that the City

refused to allow him to utilize the “formal appeal procedure” alluded to in City

Resolution Number 643.

Leonard attached a copy of Resolution Number 643 to his fourth amended

petition. The June 18, 2018 Resolution adopts a revised City Personnel Policy

Handbook and directs the City Clerk to ensure that it is distributed to all City

employees. According to Leonard’s pleading, the Personnel Policy Handbook itself

provides that “[t]he formal appeal procedure is available to any regular classified employee

who disagrees with the decision to terminate the employee.” [Emphasis added.]

Leonard sought to invoke this “formal appeal procedure,” but he did not delineate

what it entails, how his appeal to Cutrone fell short of its requirements, or to whom

35 such an appeal would be directed. He merely argued that the Individual Defendants

refused to allow him to invoke the procedure; again, his primary complaint regarding

Resolution Number 643 appears to be that he is entitled to a hearing “before

someone ‘in a position of authority’” but was not provided one.

We conclude that Leonard did not allege facts sufficient to state a facially valid

claim based on Resolution Number 643. See Tex. Tech Univ. Health Scis. Ctr. v. Enoh,

545 S.W.3d 607, 625 (Tex. App.––El Paso 2016, no pet.) (affirming dismissal of claim

for failure to follow appeal process because “[n]othing in the pleading explains what

ministerial duty these specific doctors failed to discharge in regard to the appeal

process”).

g. Civil conspiracy

Leonard alleged that Appellees “engaged in a civil conspiracy to deprive [him]

of the opportunity to exercise his constitutional and/or statutory rights,” or

alternatively, that they, along with others, “acted in concert to punish and/or retaliate

against [him] for his exercise of constitutional and/or statutory rights.”17

17 In his live petition, Leonard used phrases common to Section 1983 claims: that the City denied his rights pursuant to an “official policy” of the City’s “final policy-maker.” See, e.g., Harris County v. Coats, 607 S.W.3d 359, 373 (Tex. App.–– Houston [14th Dist.] 2020, no pet.). However, Leonard also pleaded only alleged violations of the Texas Constitution, did not identify a Section 1983 claim, and in his briefing, does not argue that he raised one. See Franz v. Rodriguez, No. 13-22-00413- CV, 2023 WL 5108966, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 10, 2023, no pet.) (mem. op.) (“A claim under 42 U.S.C. § 1983 has two foundational elements: a violation of the Constitution or of federal law, and that the violation was committed by someone acting under color of state law.” (quoting Webb v. Township of St. Joseph,

36 Civil conspiracy is not an independent tort. Jaramillo v. City of Texas City,

No. 01-20-00654-CV, 2022 WL 363271, at *4 (Tex. App.—Houston [1st Dist.]

Feb. 8, 2022, no pet.) (mem. op.); Shopoff Advisors, LP v. Atrium Circle, GP, 596 S.W.3d

894, 908 (Tex. App.—San Antonio 2019, no pet.) (op. on reh’g). Instead, it is a

theory of vicarious liability that depends on proof of an underlying intentional tort.

Jaramillo, 2022 WL 363271, at *4; Shopoff Advisors, LP, 596 S.W.3d at 908; see also Agar

Corp., Inc. v. Electro Cirs. Int’l, LLC, 580 S.W.3d 136, 141 (Tex. 2019) (“[A] civil

conspiracy claim is connected to the underlying tort and survives or fails alongside

it.”); Perales v. Newman, No. 02-23-00095-CV, 2023 WL 5615893, at *21 (Tex. App.––

Fort Worth Aug. 31, 2023, pet. filed) (mem. op.) (noting in TCPA suit that civil

conspiracy requires an underlying intentional tort that causes damages). The City’s

immunity is not waived for intentional torts; thus, Leonard cannot plead a facially

valid claim for civil conspiracy against the City. See City of Houston v. Hous. Metro. Sec.,

No. 01-22-00532-CV, 2023 WL 2602520, at *5 (Tex. App.––Houston [1st Dist.]

Mar. 23, 2023, no pet.) (mem. op.). Moreover, to the extent that Leonard attempted

925 F.3d 209, 214 (5th Cir. 2019))); cf. Williams v. Stevens, No. 05-22-00440-CV, 2023 WL 5621835, at *6 (Tex. App.—Dallas Aug. 31, 2023, no pet. h.) (mem. op.) (holding that trial court did not err by granting Texas Citizens Participation Act (TCPA) dismissal of civil conspiracy claim based on alleged Section 1983 violation). But cf. Vacca v. Farrington, 85 S.W.3d 438, 442 (Tex. App.—Texarkana 2002, no pet.) (holding that inmate raised facially valid Section 1983 claim for violation of First, Fifth, Eighth, and Fourteenth Amendment rights). “Isolated unconstitutional actions by local government employees will almost never trigger employer liability because local government employers are not vicariously liable under section 1983 for their employees’ unconstitutional or illegal acts.” Coats, 607 S.W.3d at 373.

37 to plead civil conspiracy against the Individual Defendants in their official capacities,

such a claim would be barred by the Texas Tort Claims Act’s election of remedies

provision. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f); Garza v. Harrison,

574 S.W.3d 389, 393–94 (Tex. 2019); Stinson v. Fontenot, 435 S.W.3d 793, 793 (Tex.

2014); Walker, 2020 WL 1465973, at *7.18 We therefore overrule Leonard’s eighth

issue.

Here, Leonard did not plead a valid tort claim against any of the Appellees.

Indeed, in his brief, Leonard acknowledges that he “makes no tort claims [and] he

seeks no tort damages.” Because Leonard pleaded no valid tort claim and because a

civil conspiracy claim relies on the existence of an intentional tort for which the City’s

immunity has not been waived and for which his recovery against the Individual

Defendants in their official capacities is barred, we conclude that Leonard failed to

plead a facially valid civil conspiracy claim.

h. Disposition of Eight Claims

With regard to those of the Eight Claims for which we conclude Leonard failed

to state a facially valid claim, he contends that he should be given an opportunity to

replead, but Appellees argue that the trial court already gave him a sufficient

opportunity to replead.

18 Appellees filed motions to dismiss under Section 101.106(f) as to each Individual Defendant.

38 As to Leonard’s claims based on his equal-protection and due-process rights

and his City-appeal-procedure complaint, Appellees’ opposing arguments in this court

and the trial court are of pleading sufficiency, not incurable defects; accordingly,

Leonard should have been afforded an opportunity to amend his pleadings with

respect to these claims prior to dismissal.19 See Rodriguez, 2022 WL 17687433, at *13

(“[W]e conclude that the pleadings do not contain sufficient facts to affirmatively

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

incurable defects in jurisdiction. Therefore, [the plaintiff] should be afforded an

opportunity to amend her pleadings.”).

Appellees suggest that because Leonard was able to amend his pleadings

numerous times, he has already been given an adequate opportunity to replead these

claims. We disagree. Although the trial court gave Leonard the opportunity to

replead when it dismissed these claims in ruling on the original plea to the

jurisdiction––which covered all claims pleaded in the first amended petition––that

opportunity was limited “to all remaining claims not dismissed,” which did not

include the Eight Claims. At the initial hearing on the first amended plea to the

jurisdiction––after Leonard had filed the third amended petition but before he filed

the allowed fourth amended petition––the trial court expressly stated,

I have no intentions of reworking through all of the dismissed cause[s] of action[], nor do I have any intention of either party spending their

19 We therefore sustain his third issue in part, solely as to these specific claims.

39 time, energy, or resources on addressing causes of action of which I’ve already dismissed. So I will not entertain any cause of action for which I’ve already dismissed.

Thus, the trial court did not give Leonard an opportunity to cure any pleading

deficiency with respect to any of the Eight Claims.

To the extent that Appellees suggest that Leonard had the opportunity to cure

his pleadings before the trial court ruled on the original plea to the jurisdiction, we

note that a similar argument was rejected in Texas A & M University System v. Koseoglu.

233 S.W.3d at 839–40. There, the Texas Supreme Court addressed the governmental

entity’s argument that “the plaintiff’s opportunity to amend should come after the

governmental entity files its plea to the jurisdiction, which puts the plaintiff on notice

of alleged defects in his pleadings, but before the trial court takes any definitive

action.” Id. at 839. The Texas Supreme Court rejected that argument, noting that the

governmental entity’s “proposed rule would essentially allow governmental entities

the unjust advantage of being not only a litigant, but also the judge of the plaintiff’s

pleadings.” Id. at 839–40; see also Prestonwood Ests. W. Homeowners Ass’n v. City of

Arlington, No. 02-21-00362-CV, 2022 WL 3097374, at *8 & n.10 (Tex. App.—Fort

Worth Aug. 4, 2022, no pet.) (mem. op.) (citing Koseoglu for the proposition that “a

plaintiff should be given a reasonable opportunity to replead after a trial court finds

merit in a plea to the jurisdiction if the defects can be cured” (emphasis added)).

However, we conclude that Leonard is not entitled to replead any of his

remaining properly dismissed claims. As to his general wrongful-termination claim

40 that is not based on his constitutional-violation allegations, he cannot plead a facially

valid common law claim, and he expressly disclaims pleading any statutory claim.

Likewise, we conclude that he cannot plead facially valid claims for violation of his

right to petition and violation of Section 617.005; according to his own pleadings, he

has already received all of the relief to which he is entitled under both the Texas

Constitution and Section 617.005. Moreover, Section 617.005 does not establish a

cause of action for which immunity is waived. And, finally, he cannot plead a valid

civil conspiracy claim for which the City’s immunity is waived or for which suit

against the Individual Defendants in their official capacities is not barred. See

Jaramillo, 2022 WL 363271, at *4; Shopoff Advisors, LP, 596 S.W.3d at 908; cf. Clint Indep.

Sch. Dist. v. Marquez, 487 S.W.3d 538, 559 (Tex. 2016) (noting that the opportunity to

amend “is a mechanism for parties, over whose claims the trial court may have

jurisdiction, to plead facts tending to establish that jurisdiction, not for parties, over

whose claims the trial court does not have jurisdiction, to plead new claims over

which the trial court does have jurisdiction”). Thus, we conclude that the trial court

properly dismissed these claims without any opportunity for repleading.

i. Declaratory relief

To the extent that Leonard sought declaratory relief against the City for any of

the rightfully dismissed claims that can be repleaded,20 we will briefly address that part

20 See Tex. Educ. Agency v. Devereux Tex. League City, No. 03-22-00172-CV, 2023 WL 3325932, at *2 (Tex. App.––Austin May 10, 2023, no pet.) (mem. op.)

41 of his petition. Leonard sought relief pursuant to the Uniform Declaratory Judgments

Act (UDJA). See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001–.011. The UDJA does

not contain a general waiver of sovereign immunity; instead, it provides “only a

limited waiver for challenges to the validity of an ordinance or statute.” Town of Shady

Shores v. Swanson, 590 S.W.3d 544, 552 (Tex. 2019). “UDJA claims requesting other

types of declaratory relief are barred absent a legislative waiver of immunity with

respect to the underlying action.” Id. Additionally, although “sovereign immunity

does not prohibit suits brought to require state officials to comply with statutory or

constitutional provisions,” Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69,

76 (Tex. 2015); Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011) (citing

Heinrich, 284 S.W.3d at 371–73), the UDJA does not waive a governmental entity’s

immunity for a claim that a governmental actor has violated the law, City of Garland v.

Jordan, No. 05-21-00377-CV, 2022 WL 1498121, at *4 (Tex. App.––Dallas May 12,

2022, pet. denied) (mem. op.).

Leonard purported to seek “interpretation of [the] City’s policies and

practices,” which he contends are the “functional equivalent of statutes.” But “[t]he

UDJA’s limited waiver does not authorize suits regarding the validity of governmental

actions, rules, or policies implemented under a statute.” See Austin Parents for Med.

Choice v. Austin Indep. Sch. Dist., No. 03-21-00681-CV, 2023 WL 5109592, at *3 (Tex.

(“Sovereign immunity is not a bar for suits seeking declaratory . . . relief for violations of constitutional rights.”).

42 App.—Austin Aug. 10, 2023, no pet.) (mem. op.) (citing Hatchett v. W. Travis Cnty. Pub.

Util. Agency, 598 S.W.3d 744, 753–54 (Tex. App.—Austin 2020, pet. denied)); Scribner

v. Treger, No. 02-21-00277-CV, 2022 WL 714654, at *15 (Tex. App.—Fort Worth

Mar. 10, 2022, no pet.) (mem. op.).

None of Leonard’s claims that can be repleaded directly challenged the validity

of a City ordinance or a Texas statute; instead, those claims sought affirmative

declarations that the City and the Individual Defendants engaged in certain actions or

declined to take required actions––violating his constitutional rights to free speech

and assembly, to equal protection, and to due course of law, and refusing to provide

him a formal appeal according to Resolution 643. Accordingly, even if Leonard’s

pleadings could be construed as pleading facially valid claims for these causes of

action, they did not allege sufficient facts to waive the City’s immunity under the

UDJA.

3. Remaining claims

a. Violation of TOMA

In his original petition, first amended petition, and second amended petition,

Leonard purported to assert claims against the City, Cutrone, and Stahr for allegedly

violating TOMA. Leonard did not include a TOMA claim in his third amended and

fourth amended petitions. In his appellant’s brief, Leonard acknowledges that he had

dropped his TOMA claim. But in his reply brief, he argues that the trial court’s

dismissal of that claim, without giving him the opportunity to amend, was reversible

43 error. We disagree. Here, the trial court did not dismiss Leonard’s claim relating to

the alleged violation of TOMA; rather, Leonard abandoned it by not including it in his

live petition. See Seim v. Allstate Tex. Lloyds, No. 02-16-00050-CV, 2019 WL 3493814,

at *10 (Tex. App.—Fort Worth July 30, 2019, pet. denied) (mem. op. on reh’g) (en

banc) (noting that plaintiffs’ failure to include claims that had been raised in original

petition in later-filed first and second amended petitions “operated to abandon” those

claims).

b. Violation of Section 614.023 of the Government Code

In his live petition, Leonard argued that the City violated Section 614.023 of

the Government Code. Section 614.023 provides,

(a) A copy of a signed complaint against a law enforcement officer of this state or a . . . peace officer appointed or employed by a political subdivision of this state shall be given to the officer or employee within a reasonable time after the complaint is filed.

(b) Disciplinary action may not be taken against the officer or employee unless a copy of the signed complaint is given to the officer or employee.

(c) In addition to the requirement of Subsection (b), the officer or employee may not be indefinitely suspended or terminated from employment based on the subject matter of the complaint unless:

(1) the complaint is investigated; and

(2) there is evidence to prove the allegation of misconduct.

Tex. Gov’t Code Ann. § 614.023.

Leonard alleged that the City violated this section by (1) taking disciplinary

action against him without first providing him a copy of a signed complaint and

44 (2) terminating his employment based on the subject matter of the complaint21

without first ensuring the complaint was investigated and that evidence existed to

prove the allegation of misconduct.

Section 614.023 does not change the nature of the at-will employment

relationship or abrogate the right to discharge an employee at will. Colorado County v.

Staff, 510 S.W.3d 435, 446 (Tex. 2017). Rather, Section 614.023 “provides a measure

of procedural protection for law enforcement officers by protecting them from

adverse employment action based on unsubstantiated accusations.” Lewis v. DiCamillo,

No. 01-19-00764-CV, 2021 WL 3775604, at *4 (Tex. App.––Houston [1st Dist.]

Aug. 26, 2021, no pet.) (mem. op.); see also Colorado County, 510 S.W.3d at 446

(“Chapter 614 does not give an employee a right to continued employment, but it

does require compliance with the statutory process before an employee may be

permanently encumbered by a damaging discharge record.”).

Nothing in Chapter 614 of the Government Code waives the City’s immunity

from suit. See Burleson, 2022 WL 17817965, at *7. And when the undisputed facts

21 We note that this alleged motive for this cause of action is slightly different from the motive underlying Leonard’s constitutional claim, in which he argued that he was fired for exercising his constitutional right to speak and assemble based on a matter of public concern. Here, Leonard alleged that he was fired based on the subject matter of the complaint, but in other parts of his petition, he argued that the complaint was a subterfuge for the real reason he was fired: his support for civil service at the police department. Because a party is allowed to plead in the alternative, see Tex. R. Civ. P. 48, this distinction is irrelevant to the validity of Leonard’s pleaded claims.

45 show that Section 614.023 was complied with, an ultra vires action cannot be

maintained under that section. Lewis, 2021 WL 3775604, at *6. Leonard contends,

however, that Cutrone terminated his employment because of the subject matter of

the pending criminal complaint without first complying with all of the preconditions

of Section 614.023.

In his fourth amended petition, Leonard alleged that on March 18, 2019, over a

month before his employment was terminated, he was given a “Notice of Complaint

in Accordance with Government Code 614.022,”22 which Cutrone signed. Leonard

attached the notice to his petition. The notice describes the nature of the complaint–

–“you may have committed misconduct reflecting discredit on the City . . . and the

City . . . Police Department when you allegedly assaulted a juvenile[] at a soccer game

in December 2018”––and identifies Cutrone as the complainant. It also lists six areas

of police department or City rules Leonard allegedly violated, and it is dated

March 18, 2019. Because Leonard’s own pleadings show compliance with subsections

(a) and (b) of Section 614.023, Leonard failed to allege a valid ultra vires claim based

on an allegation that any of the Individual Defendants violated those subsections.23

22 Section 614.022 provides that “[t]o be considered by the head of a state agency or by the head of a fire department or local law enforcement agency, the complaint must be . . . (1) in writing . . . and (2) signed by the person making the complaint.” Tex. Gov’t Code Ann. § 614.022. 23 In fact, the requisite notice under Section 614.023 can be given contemporaneously with the termination and still comply with the statute. Colorado County, 510 S.W.3d at 439, 454.

46 Regarding Section 614.023(c), Leonard alleged that on March 18, 2019, Stahr

provided him a “Notice of Unpaid Administrative Leave and Confidentiality Order,”

which stated that “[a]n investigation [would] be conducted” and that Leonard would

be interviewed. Nevertheless, Leonard alleged that none of the Individual Defendants

investigated the complaint and that he was fired without any evidence of misconduct.

He also alleged that the criminal charges filed against him as a result of the soccer-

game contact were eventually dismissed,24 that he collided with the juvenile during the

soccer game “inadvertently,” and that Cutrone later admitted in the SOAH TCOLE

F-5 appeal hearing that he terminated Leonard’s employment based on the incident’s

becoming “the talk of the town.” Leonard further alleged that Stahr had used his

relationship with a Texas Ranger “to initiate the frivolous [assault] prosecution.”

As an attachment to his second amended affidavit, which was itself an

attachment to his live pleading, Leonard provided a report from the Wichita County

Sheriff’s Office detailing its “review [of] the administrative suspension of . . .

Leonard.” The sheriff’s deputy executing that document stated that he contacted the

Texas Ranger who was investigating the criminal case but that he would not turn over

information related to the pending criminal case. The deputy also reviewed Cutrone’s

complaint and determined that some of the alleged violations would apply only to an

officer “while on duty executing his/her official capacity as a Peace Officer” and that

24 As we have noted, the charges were later expunged.

47 he “could not determine based on the evidence [he] reviewed that Leonard” had

violated one of the identified conduct provisions. Finally, the deputy noted that he

“did not interview Leonard or any other involved parties or witnesses due to the fact

that the Wichita County Sheriff’s Office did not conduct the criminal investigation

and was only tasked with the review and interpretation of applicable policy.”

We conclude that Leonard at least pleaded a facially valid ultra vires claim that

Cutrone failed to comply with Section 614.023(c) by terminating Leonard’s

employment for the reason alleged in the complaint without first conducting an

investigation and without evidence to support the precise complaint about which

Leonard was notified before his termination. See Treadway v. Holder, 309 S.W.3d 780,

786 (Tex. App.––Austin 2010, pet. denied); Turner v. Perry, 278 S.W.3d 806, 823–24

(Tex. App.—Houston [14th Dist.] 2009, pet. denied);25 see also Hall, 508 S.W.3d at 238

(noting that the basic justification for ultra vires suits is to reassert control over a state

agent who is exceeding the bounds of his granted authority or if his acts conflict with

the law itself). But cf. Bracey v. City of Killeen, 417 S.W.3d 94, 101–02, 109–113 (Tex.

App.––Austin 2013, no pet.) (holding that Chapter 614 does not compel civil-service

25 In Guthery v. Taylor, 112 S.W.3d 715, 723–24 (Tex. App.––Houston [14th Dist.] 2003, no pet.), the court of appeals––after determining that the trial court erred by concluding that officials had not violated Section 614.023––rendered judgment ordering Guthery’s suspension withdrawn and the restoration of Guthery’s back pay and benefits. Although the Texas Supreme Court later abrogated Guthery’s holding that Section 614.023 had been violated, it did not address Guthery’s appellate remedy. See Colorado County, 510 S.W.3d at 451.

48 hearing examiner to automatically reinstate employee whose employment was

terminated in violation of Section 614.023). Thus, the trial court erred by dismissing

this part of Leonard’s Section 614.023 claim as to prospective relief only.26 See City of

Houston v. Hous. Mun. Emps. Pension Sys., 549 S.W.3d 566, 576 (Tex. 2018) (“[U]ltra vires

claimants are only entitled to prospective relief.”); Heinrich, 284 S.W.3d at 376. We

sustain his first issue in part as to this claim.

c. Violation of Chapter 101 of the Labor Code

In his live petition, Leonard argued that Appellees violated Chapter 101 of the

Labor Code. More specifically, he alleged that Appellees “acted with ‘threats, force,

26 The parties did not brief in this court or the trial court what part of Leonard’s requested relief, if any, is prospective only. Considering our limited remand, we believe that issue is best left for the trial court. See Hartzell v. S.O., 672 S.W.3d 304, 319–20 (Tex. 2023) (holding that suit seeking remedy of degree reinstatement and due-process hearing sought prospective relief); Suarez v. Silvas, No. 04-21-00113-CV, 2022 WL 379965, at *1, *7 (Tex. App.––San Antonio Feb. 9, 2022, no pet.) (mem. op.) (holding that remedy of reinstatement to former elected position was retrospective); Bailey v. Dallas County, No. 05-16-00789-CV, 2017 WL 6523392, at *4 (Tex. App.––Dallas Dec. 21, 2017, pet. denied) (mem. op.) (holding that remedy of reinstatement of civil-service grievance for hearing to be held was retrospective only); Alphonso Crutch Life Support Ctr., Inc. v. Morath, No. 03-15-00509-CV, 2016 WL 4729740, at *4 (Tex. App.––Austin Sept. 7, 2016, pet. denied) (mem. op.) (holding that suit to reinstate school’s charter and enjoin Commissioner of Education from continuing to withhold state-allocated education funds sought prospective relief but was moot on its facts); Hamilton v. Washington, No. 03-11-00594-CV, 2014 WL 7458988, at *6 (Tex. App.––Austin Dec. 23, 2014, no pet.) (mem. op.) (determining that remedy of reinstatement without backpay or benefits would be prospective relief but that it was impossible to provide on pleaded facts); Ochoa v. City of Palmview, No. 13-14-00021-CV, 2014 WL 7404594, at *7 (Tex. App.––Corpus Christi–Edinburg June 19, 2014, no pet.) (mem. op.) (determining that pleaded reinstatement remedy in that case was retrospective only).

49 intimidation, or coercion’[] to deny[] and abridge [his] right to work because of [his]

membership in a labor organization.” Specifically, Leonard cited Sections 101.203

and 101.301 as the bases for this cause of action.

Regardless of whether any provision of Chapter 101 of the Labor Code applies

to the facts alleged here, nothing in that chapter waives the City’s immunity from suit.

See City of Caldwell, 2012 WL 3242742, at *4. Moreover, Leonard could not plead a

valid ultra vires complaint under that Chapter.

Section 101.203 provides that a person who violates any provision of that

subchapter––entitled “Secondary Picketing”––may be civilly liable for damages or

subject to an injunction. Tex. Lab. Code Ann. § 101.203(a)–(b). The first section in

that subchapter provides the prohibited action: “A person may not establish, call,

participate in, or aid picketing at or near the premises of an employer with whom a

labor dispute does not exist.” Id. § 101.201. Leonard alleged no facts that would

show a violation of this section by any of the Individual Defendants. Thus, he did

not plead a valid claim under this section.

Section 101.301 provides that “[t]he right of a person to work may not be

denied or abridged because of membership or nonmembership in a labor union or other

labor organization”27 and that “[i]n the exercise of the right to work, each person shall

27 Section 101.001 provides that “persons engaged in any kind of labor may associate and form trade unions and other organizations to protect themselves in their personal labor in their respective employment.” Tex. Lab. Code Ann. § 101.001. And Section 101.053 provides that an employment contract that requires membership in a

50 be free from threats, force, intimidation, or coercion.” Id. § 101.301(a)–(b) (emphasis

added). It also provides that “[a] person who violates this subchapter is liable to a

person who suffers from that violation for all resulting damages.” Id. § 101.301(c).

Not only did Leonard nonsuit his claim for damages, but also the following

section of the Labor Code expressly authorizes only “[t]he attorney general or a

district or county attorney” to sue to enjoin a violation of Section 101.301.

Id. § 101.302. Accordingly, we hold that Leonard did not plead a valid claim under

either section of Chapter 101 of the Labor Code.

d. Violation of Section 180.001 of the Local Government Code

In his live petition, Leonard asserted that Appellees violated Section 180.001 of

the Local Government Code.

Section 180.001(a) provides that “[a]n individual commits an offense if the

individual coerces a police officer or a fire fighter to participate or to refrain from

participating in a political campaign.” Tex. Loc. Gov’t Code Ann. § 180.001(a).

Section 180.001(b) provides that “[a]n offense under this section is a misdemeanor

and is punishable by a fine of not less than $500 or more than $2,000, confinement in

the county jail for not more than two years, or both a fine and confinement.”

Id. § 180.001(b). Leonard has not cited any authority, nor have we found any,

labor union or prohibits membership in a labor union is void. See id. § 101.053. Thus, contrary to Appellees’ assertion, Chapter 101 does not apply solely to protect Leonard from “being forced into joining the [A]ssociation.”

51 indicating that a plaintiff has a valid civil cause of action for the violation of Section

180.001. See Bickham v. Dallas County, 612 S.W.3d 663, 670 (Tex. App.—Dallas 2020,

pet. denied) (“The fact that a statute has been violated and some person has been

harmed does not automatically give rise to a private cause of action in favor of that

person.”); see also Joyner v. DeFriend, 255 S.W.3d 281, 283 (Tex. App.—Waco 2008, no

pet.) (“Texas does not recognize private causes of action for penal code violations.”).

Accordingly, the trial court did not err by dismissing Leonard’s claim for the alleged

violation of Section 180.001.

D. Claims against the Individual Defendants

For each cause of action––in addition to suing the Individual Defendants in

their official capacities for ultra vires actions––Leonard also purported to sue them as

individuals in their personal capacities. In addition to the claims already discussed,

Leonard accused each of the Individual Defendants of engaging in official oppression

and “abuse of authority”; he accused Stahr of initiating a malicious prosecution

against him and Cutrone and Guevara of extortion by offering him an honorable

discharge on his TCOLE F-5 form only if he resigned instead of having his

employment terminated. Leonard pleaded on the one hand that these “illegal actions

and omissions were not in the course and scope of employment or agency with” the

City and, thus, that they were ultra vires acts. But he also pleaded alternatively that he

was “not limited to ultra vires claims about [I]ndividual Defendants’ violations of

ministerial duties and legal duties.”

52 Whether a claim is against a person in an individual or official capacity depends

on “the nature of the liability sought to be imposed.” Heinrich, 284 S.W.3d at 377

(citing Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S. Ct. 3099, 3106 n.14 (1985)).

Leonard expressly nonsuited all of his damages claims. And the prospective remedies

that he sought cannot be obtained from the Individual Defendants in their individual

capacities.28 Thus, we conclude that all of his allegations against the Individual

Defendants are allegations against them in their official capacities.29 See id.

To the extent, then, that Leonard attempted to bring ultra vires claims against

the Individual Defendants for official oppression, abuse of authority, and extortion,

he did not plead facially valid claims. Texas does not recognize a common law tort of

28 Appellees claim that Cutrone is now the former City Manager, but Leonard has not conceded that fact, and the record does not show Cutrone’s employment status with the City. Thus, whether Leonard can now obtain relief on his pleaded ultra vires claim against Cutrone for Cutrone’s alleged failure to comply with Section 614.023(c) is a matter better left to the trial court to determine on remand. See Stem v. Gomez, 813 F.3d 205, 214–15 (5th Cir. 2016) (determining that state ultra vires UDJA claim against mayor was properly dismissed because mayor was not “the city official[] who had the power to terminate Stem’s employment, actually did terminate his employment, and now ha[d] the power to reinstate him”); Phillips v. McNeill, 635 S.W.3d 620, 629, 631 (Tex. 2021) (providing that remedy for ultra vires failure to hold contested-case hearing required by statute was to render judgment “declaring that the Inspector General is required to docket a request for a contested-case hearing”). 29 Moreover, even if Leonard had pleaded valid equal-protection and dire- course-of-law constitutional claims, he cannot bring them against the Individual Defendants in their individual capacities. See Edinburg Housing Auth. v. Ramirez, No. 13-19-00269-CV, 2021 WL 727016, at *6 (Tex. App.––Corpus Christi–Edinburg Feb. 25, 2021, no pet.) (mem. op.) (addressing equal-protection and due-course-of-law claims).

53 official oppression, Johnson v. Boehnke, No. 03-19-00200-CV, 2019 WL 4458797, at *3

n.3 (Tex. App.––Austin Sept. 18, 2019, no pet.) (mem. op.), or impose civil liability

for “extortion,” Jackson v. Storts, No. 01-19-00003-CV, 2021 WL 342992, at *3 n.4

(Tex. App.––Houston [1st Dist.] Feb. 2, 2021, no pet.) (mem. op.), Sampson v. Tex.

Dep’t of Pub. Safety, No. 09-12-00537-CV, 2013 WL 3488255, at *2 (Tex. App.––

Beaumont July 11, 2003, no pet.) (mem. op.). To the extent that the abuse-of-

authority allegations in Leonard’s live petition could be construed as a claim against

the Individual Defendants for abuse of process, such a claim would be in the nature

of an intentional tort, which we have already concluded is barred by

Section 101.106(f) of the Civil Practice and Remedies Code. See Pryor v. Moore,

No. 12-20-00137-CV, 2021 WL 1582722, at *2 (Tex. App.––Tyler Apr. 21, 2021, no

pet.) (mem. op.). The same holds true for malicious prosecution. See Stinson, 435

S.W.3d at 793. Thus, Leonard did not plead facially valid ultra vires claims against the

Individual Defendants for official oppression, abuse of authority, extortion, or

malicious prosecution. We overrule his second issue.

IV. CONCLUSION

We sustain Leonard’s first issue in part and his third issue in part. We overrule

the remainder of his first and third issues and his second, sixth through eighth,

eleventh, and twelfth issues. But because they are not dispositive, we do not address

54 his fourth, fifth, ninth, and tenth issues.30 See Tex. R. App. P. 47.1. We remand this

case to the trial court on the claims that the trial court should not have dismissed:

(1) that Appellees violated Leonard’s rights to free speech and assembly by wrongfully

terminating his employment because of his support of civil-service implementation at

the police department and related Association involvement and (2) that Cutrone failed

to comply with Section 614.023(c) before terminating Leonard’s employment. We

also remand the case so that Leonard may be given the opportunity to replead the

following claims only: his equal-protection and due-course-of-law claims and the

claim that he is entitled to additional rights pursuant to the “formal appeal procedure”

delineated in the City’s Personnel Handbook. In all other respects, we affirm the trial

court’s judgment of dismissal.

/s/ Dana Womack

Dana Womack Justice

Delivered: November 2, 2023

30 Leonard argues in his ninth issue that the trial court erred by dismissing his claims against Tillman because of unreasonable delay in naming him as a party; as we have already noted, the pleas to the jurisdiction challenged whether the pleadings had alleged facially valid claims such that immunity was waived, and the trial court’s rulings were made on that basis. Leonard contends in his tenth issue that the trial court should not have dismissed any claims against Guevara based on attorney immunity. Appellees raised attorney immunity in their plea to the jurisdiction and first amended plea to the jurisdiction, as well as their brief on appeal, but attorney immunity is an affirmative defense that has no bearing on a trial court’s jurisdiction; thus, it is not relevant to our analysis. NFTD, LLC v. Haynes & Boone LLP, 652 S.W.3d 546, 557 (Tex. App.—Houston [14th Dist.] 2022, no pet.).