City of Hous. v. Reyes

625 S.W.3d 563

CITY OF HOUSTON, Appellant

v.Raul D. REYES and Albert Rodriguez, Appellees

NO. 14-19-00291-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed April 29, 2021

Rehearing Denied June 24, 2021

Reconsideration En Banc Denied August 3, 2021

Robert Higgason, Houston, for Appellant.

Richard Charles Mumey, Joseph G. Soliz, Houston, for Appellees.

Panel consists of Justices Bourliot, Hassan, and Poissant.

Frances Bourliot, Justice

In this interlocutory appeal, the City of Houston appeals the trial court's order denying the City's motion for summary judgment based on lack of jurisdiction.¹ Concluding that the trial court has jurisdiction over this lawsuit, we affirm.

Background

In 2011, the City and the Houston Professional Fire Fighters Association entered into a Collective Bargaining Agreement that governed the number and category of additional points to be added to promotional examination test scores. The Collective Bargaining Agreement expired on June 30, 2017.

At the time, appellees Raul D. Reyes and Albert Rodriguez were firefighters both employed as Senior Captains of Communications by the City of Houston Fire Department. They took promotional examinations on July 12, 2017 for the position of Chief Communications Officer. The promotional examinations were administered by the Civil Service Commission under chapter 143 of the Local Government Code.² The Commission is also responsible for grading the promotional examinations and calculating additional points based on seniority.³

The Commission initially decided to score the exams under the terms of the Collective Bargaining Agreement, not under chapter 143. Reyes and Rodriguez sent letters to the Commission on August 21, 2017, each complaining that their test scores were improperly calculated under the Collective Bargaining Agreement and should have been calculated under Local Government Code section 143.033, which would have awarded them ten additional points.⁴ On September 18, 2017, the Commission issued an order stating that exams taken after July 1, 2017 (the day after the Collective Bargaining Agreement expired) would be scored and certified under chapter 143. Firefighters Rose Arenas and Wearod W. Hadnott timely appealed the Commission's September 18 decision in district court. The district court issued a temporary restraining order. The Commission then reconsidered the matter on November 6, 2017 and issued a final order reversing itself and holding that the promotional exams would be scored under the Collective Bargaining Agreement.

Reyes and Rodriguez filed this lawsuit on November 16, 2017, appealing the November 6 order and seeking to have their examinations scored under chapter 143. The City filed its motion for summary judgment, contending that the trial court lacked jurisdiction on the basis that Reyes's and Rodriguez's complaints were untimely, the Commission lacked subject matter jurisdiction to consider untimely complaints, and the trial court lacked subject matter jurisdiction over the lawsuit. The trial court denied the motion.

Discussion

In three issues, the City contends (1) the Commission did not have jurisdiction to issue the September 18 and November 6 orders under chapter 143; (2) the Commission did not have jurisdiction to issue the orders under the Collective Bargaining Agreement; and (3) the trial court did not have jurisdiction to rule on the merits of Reyes and Rodriguez's appeal from the November 6 order. We conclude that the Commission had jurisdiction to issue the orders under chapter 143 and the trial court had jurisdiction to rule on the merits of the appeal.⁵

Immunity from suit may be asserted through a plea to the jurisdiction or another procedural vehicle, such as a motion for summary judgment. Alief Indep. Sch. Dist. v. Brantley , 558 S.W.3d 747, 754 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). When a jurisdictional plea challenges the plaintiff's pleadings, we determine whether the pleadings, construed in the plaintiff's favor, allege facts sufficient to affirmatively demonstrate the trial court's jurisdiction to hear the case. Id. Whether a pleader has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law we review de novo. Id.

If the plaintiff pleaded facts making out a prima facie case and the governmental unit instead challenges the existence of jurisdictional facts, we consider the relevant evidence submitted. Id. Generally, the standard mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c). Id. If the plaintiff's factual allegations are challenged with relevant supporting evidence, to avoid dismissal, the plaintiff must raise at least a genuine issue of material fact to overcome the challenge to the trial court's subject matter jurisdiction. Id. When the evidence submitted to support the plea implicates the merits of the case, we take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff's favor. Id.

In its first issue, the City contends that the Commission did not have jurisdiction to issue the September 18 and November 6 orders because Reyes and Rodriguez did not invoke the Commission's jurisdiction by appealing or initiating grievances challenging the Commission's initial test scoring under the Collective Bargaining Agreement. See Tex. Loc. Gov't Code § 143.034(a) ("If dissatisfied [with promotional examination grading, a firefighter] may appeal, within five business days, to the commission for review in accordance with this chapter."), § 143.128(a) ("To begin a grievance action, a fire fighter ... must file a ... step I grievance form with the person's department head or departmental grievance counselor within 30 days after the date the fire fighter ... knew or should have known of the action or inaction for which the person feels aggrieved occurred."). Reyes and Rodriguez argue that they were not required to take either of these steps to invoke the Commission's jurisdiction and they were entitled to appeal the Commission's November 6 order by filing a petition in the trial court. See id. § 143.015(a) (allowing a firefighter to file a petition in district court appealing "any commission decision ... within 10 days after the date the final commission decision" is sent by certified mail to or personally received by the firefighter).

There is a dearth of caselaw addressing this issue, but we find the supreme court's White decision to be instructive. See City of DeSoto v. White , 288 S.W.3d 389 (Tex. 2009). At issue was whether a pre-appeal notice requirement under chapter 143 for a suspended officer is jurisdictional. Id. at 391. The police chief delivered the officer a letter informing him that his suspension was indefinite but that he could file an appeal either with the Commission or an independent third-party hearing examiner. Id. (citing Tex. Loc. Gov't Code §§ 143.052(c), (d) ; .057(a)). The letter did not notify the officer that an appeal to a hearing examiner would limit his ability to seek further review with a district court, as required by the statute. Id. (citing Tex. Loc. Gov't Code § 143.057(a), (j) ). The officer elected to have a hearing before a hearing examiner. Id. The hearing examiner upheld the suspension. Id. at 392.

The officer filed suit in district court, contending that the hearing examiner lacked jurisdiction over his appeal. Id. The trial court and court of appeals agreed, holding the notice requirements under chapter 143 were jurisdictional and that substantial compliance with the notice requirements was insufficient to confer jurisdiction. Id. The City of DeSoto argued that the notice provision is not jurisdictional. Id.

In concluding that the notice provision is not jurisdictional, the supreme court noted:

The failure of a jurisdictional requirement deprives the court of the power to act (other than to determine that it has no jurisdiction), and ever to have acted, as a matter of law. If the requirement is not jurisdictional, however, the tribunal may hear the case, although other consequences may flow from a party's failure to comply with the requirement. [D]eeming a provision jurisdictional opens the way to making judgments vulnerable to delayed attack for a variety of irregularities that perhaps better ought to be sealed in a judgment. [T]he modern direction of policy is to reduce the vulnerability of final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction. Because of these consequences, we have been reluctant to conclude that a provision is jurisdictional, absent clear legislative intent to that effect.

Id. at 393 (citations omitted).

The court began with the presumption that the legislature did not intend to make the notice provision jurisdictional and applied statutory interpretation principles to determine whether the provision was jurisdictional "by examining the statute's plain language." Id. at 394. Starting with the text of the statute, the court noted that the provision did not "contain any explicit language indicating that [the] notice requirement[, although mandatory, was] jurisdictional." Id. at 395. The court further noted that the notice was not a statutory prerequisite to filing a lawsuit or appeal. Id. at 396. Moreover, there was no specific consequence for noncompliance, such as dismissal. Id. Lastly, the court looked to the consequences flowing from each possible interpretation of the statute and noted that the consequence of holding the statute jurisdictional would be to reinstate the officer despite serious allegations against him. Id. According to the court, that could not "be the result the Legislature intended, especially where an interpretation which concludes that the provision is not jurisdictional would still protect the officer's appellate rights." Id. at 396-37.

Thus, the supreme court, beginning with the presumption that the legislature did not...