Jamil Saifi v. City of Texas City ( 2015 )

Reversed and Remanded and Memorandum Opinion filed April 23, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-00815-CV
JAMIL SAIFI, Appellant
V.
CITY OF TEXAS CITY, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Cause No. 13-CV-0436
MEMORANDUM OPINION
Appellant Jamil Saifi appeals the trial court’s grant of appellee the City of
Texas City’s plea to the jurisdiction dismissing Saifi’s claims for wrongful
termination of his employment with the City’s fire department. We reverse and
remand.
FACTUAL AND PROCEDURAL BACKGROUND
The City is governed by both the Fire Fighters and Police Officers Civil
Service Act and the Fire and Police Employee Relations Act. See Tex. Loc. Gov’t
Code §§ 143.001–.403 (The “Civil Service Act”); Tex. Loc. Gov’t Code §§
174.001–.253 (the “Employee Relations Act”). Additionally, the City and the
International Association of Fire Fighters Local No. 1259 are parties to a collective
bargaining agreement (CBA) that governs the compensation, hours, and other
conditions of employment for the City’s firefighters. Under the CBA, the City has
the right to “determine and establish pre-employment employee qualifications,
standards, and/or terms and conditions of employment.”
On December 17, 2007, Saifi signed a Conditions of Employment
Agreement (the “COE Agreement”) with the City and began his employment as a
firefighter. The CBA in effect at the time provided that “[t]he qualifications,
standards, and/or terms and conditions of employment set forth in the [COE
Agreement] in effect at the completion of the one year probationary status shall
become permanent.”
Before he was hired, Saifi had completed basic Emergency Medical
Technician (EMT) coursework, referred to as “EMT-basic,” but he had not
received EMT-basic certification. Saifi’s COE Agreement contained the following
provision concerning a requirement that firefighters obtain EMT certification
within a timeframe specified by the Fire Chief:
The City of Texas City desires that each applicant and employee
already be EMT certified at the Intermediate and/or Paramedic level.
However, to obtain the best possible employee, the City may hire a
desirable applicant who does not yet have said certification, provided
the applicant agrees to obtain the certification within the timeframe
specified by the Fire Chief. Only those new employees and/or
applicants for employment who take and successfully pass the HOBET
2
Health Occupational Basic Entrance Test, COMPASS Test, or similar
placement test specific to Para medicine and/or Paramedic
certification in advance of employment shall be required to become
Paramedic certified during the course of their employment. Therefore,
as a condition of my initial and continued employment, and as a Civil
Service employee hired after December 1, 2007, I agree I am EMT
(Emergency Medical Technician) certified at the intermediate and/or
paramedic level or I agree to attend EMT (Emergency Medical
Technician) training and become certified at the intermediate and/or
paramedic level within the timeframe specified by the Fire Chief as
specified herein.
(Emphasis added). The COE Agreement also provided that if Saifi failed to
satisfactorily complete his training and qualify for state certification, he would be
in default and automatic resignation and forfeiture of his position as a firefighter
would result.
Saifi obtained intermediate paramedic certification in 2010. However, when
Saifi was unable to complete a national registry test to enable him to obtain his
paramedic certification, Fire Chief Joseph A. Gorman terminated his employment
on December 2, 2011.
Relying on the contract language highlighted above, Saifi asserted that he
was not required to pass the national registry test as a condition of employment
because he had not passed the prerequisite HOBET test, COMPASS test, or a
similar placement test before he was hired.1 Saifi attempted to invoke the
administrative appeal process under the Texas Local Government Code, but was
informed that because his termination was for breach of the COE and thus was
non-disciplinary, his termination was unappealable under the Civil Service Act.
1
Documents in the record reflect that “HOBET” stands for “Health Occupations Basic
Entrance Test” and that the test “measures basic essential skills in the academic content area
domains of reading, mathematics, science and English and language usage.” COMPASS appears
to be a placement test used to evaluate students’ abilities in general subjects including reading,
writing, and mathematics.
3
In March 2013, Saifi filed suit against the City, alleging breach of contract
and violation of the Civil Service Act, and requesting declaratory relief. Among
other things, Saifi sought reinstatement, restoration of his seniority, and back pay
for wrongful termination. Saifi also alleged that sovereign immunity was waived
under Chapter 37 of the Civil Practice and Remedies Code and section 271.152 of
the Texas Local Government Code or, alternatively, section 180.006 of the Local
Government Code.
In response, the City filed a motion to dismiss for lack of subject matter
jurisdiction. In the motion, the City asserted a plea to the jurisdiction, arguing that
the trial court lacked subject matter jurisdiction because Saifi “failed to establish
justiciable claims” and that governmental immunity barred Saifi’s claims.
Following a hearing, the trial court signed an order granting the City’s plea to the
jurisdiction on June 20, 2013. Saifi filed a motion for new trial which was
overruled by operation of law. This appeal followed.
ANALYSIS OF THE ISSUES
Saifi contends that the trial court erred in granting the City’s plea to the
jurisdiction and dismissing his claims for breach of contract, violation of his
constitutional rights, declaratory relief, and back pay. The City disputes Saifi’s
assertion and, as a threshold matter, argues that this court lacks jurisdiction to hear
Saifi’s appeal.
I. Appellate Jurisdiction
We first address the City’s contention that Saifi’s failure to timely perfect
his appeal deprives this court of jurisdiction. The City argues that because the trial
court’s June 20, 2013 order was interlocutory, the appeal is accelerated and Saifi’s
filing of a motion for new trial did not extend the deadline for filing a notice of
4
appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8); City of Houston v.
ATSER, L.P., 403 S.W.3d 354, 357 (Tex. App.—Houston [1st Dist.] 2013, pet.
denied).2 Consequently, the City asserts that Saifi’s appeal, filed September 17,
2013, is untimely.
As a general rule, appeals may be taken only from final judgments. Lehmann
v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). One exception to this general
rule is section 51.014(a)(8), which expressly provides for appeal of an
interlocutory order that “grants or denies a plea to the jurisdiction by a
governmental unit.” See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). Appeals
from interlocutory orders allowed by statute are among the types of orders that are
accelerated. Tex. R. App. P. 28.1(a). In an accelerated appeal, “the notice of appeal
must be filed within 20 days after the judgment or order is signed.” Tex. R. App. P.
26.1(b). Here, the City assumes that the trial court’s order is interlocutory and,
because Saifi did not file his notice of appeal within 20 days, this court lacks
jurisdiction to hear the appeal. The City’s assumption is incorrect.
Lehmann instructs that a judgment issued without a conventional trial is final
for purposes of appeal if it actually disposes of all claims and parties before the
court, regardless of its language. See Lehmann, 39 S.W.3d at 200. Although the
trial court’s order does not include express language of finality, it reflects that the
trial court granted the City’s plea to the jurisdiction “in its entirety” against Saifi
and was followed by a motion for new trial. The City does not contend that any
2
The City also appears to suggest that even if Saifi’s motion for new trial extended the
deadline for filing the notice of appeal to 90 days, see Tex. R. App. P. 26.1(a), Saifi’s notice was
still untimely because it was filed “94 days after the entry of judgment,” apparently referring to
the trial court’s announcement that it was granting the City’s motion to dismiss on June 18, 2013.
However, Rule 26.1 clearly states that the appellate timetable is calculated from the date the
judgment is signed. Id. The trial court’s judgment was signed June 20, 2013, and Saifi’s appeal
was filed on September 17, 2013.
5
parties or claims remained after the trial court signed the order granting the plea,
and the record shows that the order was intended to be a final judgment because
Saifi and the City were the only parties to the lawsuit and the order disposed of all
of Saifi’s claims.
Additionally, the City’s reliance on City of Houston v. ATSER is misplaced,
because that case involved the denial of a plea to the jurisdiction and a subsequent
motion for summary judgment raising the same issues. See City of Houston, 403
S.W.3d at 357 (explaining that “[i]n order for a party to be entitled to an
interlocutory appeal, section 51.014(a)(8) requires the denial of a jurisdictional
challenge”); see also Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)
(explaining that an interlocutory appeal may be taken when a governmental
entity’s motion to dismiss for lack of jurisdiction is denied, but if the court grants
the motion, the plaintiff may take an appeal once that judgment becomes final). In
this case, the City’s plea was granted, not denied, and the trial court’s order
effectively ended the case in that court once Saifi’s motion for new trial was
overruled by operation of law and the judgment became final.
Because Saifi appeals from a final judgment disposing of all parties and
claims before the trial court, the City is incorrect that the judgment is interlocutory
and subject to an accelerated appellate timetable. Further, the record reflects that
Saifi timely filed his notice of appeal from the trial court’s order granting the
City’s plea to the jurisdiction. Therefore, this Court has jurisdiction to consider
Saifi’s appeal.
II. Saifi’s Issues on Appeal
The central issue in this case is whether the City’s governmental immunity
bars Saifi’s claims. In its plea to the jurisdiction, the City argued that the trial court
lacked subject matter jurisdiction over Saifi’s claims because Saifi “has no
6
justiciable interests” and that sovereign immunity barred Saifi’s claims. On appeal,
the City’s primary argument is that Saifi’s claims are not justiciable because “there
is no live controversy between the parties.” See State Bar of Tex. v. Gomez, 891
S.W.2d 243, 245 (Tex. 1994) (“[F]or a controversy to be justiciable, there must be
a real controversy between the parties that will be actually resolved by the judicial
relief sought.”).3 The City asserts that Saifi “erroneously attempts to manufacture a
factual dispute” by arguing that his pre-employment coursework “does not meet
the requirements of the COE Agreement’s language regarding [a] ‘similar test’
when compared to the HOBET or COMPASS tests.” As we understand this
assertion, the City is arguing that the trial court was entitled to conclude, based on
the City’s arguments and evidence, that Saifi’s pre-employment course work
satisfied the “similar placement test” language of the COE Agreement and
therefore no fact dispute—and thus no “live controversy”—existed concerning the
COE Agreement to adjudicate.
On appeal, Saifi argues that Chapter 271 of the Local Government Code
expressly waives the City’s governmental immunity over his contract dispute with
the City and, further, the City’s merits-based argument is not properly resolved on
a plea to the jurisdiction. Specifically, Saifi contends that the COE Agreement
provides that he could be required to obtain paramedic certification only if he had
passed a HOBET test, COMPASS test, or “similar placement test specific to Para
medicine and/or Paramedic certification” prior to his employment, and he alleges
that he has not passed such a test. Therefore, Saifi argues that this fact question is
3
On appeal, the City notes that “[i]ssues of justiciability, such as mootness, ripeness, and
standing, implicate a court’s subject matter jurisdiction.” See City of Galveston v. Galveston
Mun. Police Ass’n, No. 14-11-00192-CV, 2011 WL 4920885, at *2, (Tex. App.—Houston [14th
Dist.] Oct. 18, 2011, no pet.) (mem. op.) (citations omitted). However, the City does not
expressly rely on the justiciability doctrines of mootness, ripeness, or standing anywhere in its
brief.
7
irrelevant to the jurisdictional analysis and must be decided on the merits by the
fact finder.
Saifi also argues that the trial court has jurisdiction over his other claims
because governmental immunity does not bar Saifi’s claim that the City’s
termination of his employment violated his constitutional right to continued
employment under the Civil Service Act; the Uniform Declaratory Judgments Act
(UDJA) waives the City’s immunity for the purpose of resolving the parties’
dispute concerning the interpretation of the COE Agreement and Saifi’s request for
reinstatement; and section 180.006 of the Local Government Code expressly
waives the City’s immunity as to Saifi’s claim for back pay. In response, the City
argues that sovereign immunity is not waived under any of the grounds Saifi has
alleged. We address the parties’ arguments as necessary to dispose of this appeal.
A. Standard of Review and Applicable Law
Under the common-law doctrine of sovereign immunity, the state cannot be
sued without its consent. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex.
2011). Sovereign immunity refers to the state’s immunity from both suit and
liability and protects the state and its divisions, while governmental immunity
protects political subdivisions of the state, including counties, cities, and school
districts. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex.
2003). Governmental immunity from suit defeats a trial court’s subject matter
jurisdiction and is properly asserted in a plea to the jurisdiction. See Tex. Dept. of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). We review de
novo a trial court’s ruling on a plea to the jurisdiction. Id. at 228.
A challenge to a trial court’s subject matter jurisdiction may be asserted in a
plea to the jurisdiction. Id. A plea to the jurisdiction is a dilatory plea, the purpose
of which is to defeat a cause of action without regard to whether the claims
8
asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000). The plaintiff has the initial burden to allege facts that affirmatively
demonstrate that the trial court has subject matter jurisdiction. Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).
When a plea to the jurisdiction challenges the pleadings, we determine if the
plaintiff has alleged facts affirmatively demonstrating the court’s
jurisdiction. Miranda, 133 S.W.3d at 226 (citing Tex. Ass’n of Bus., 852 S.W.2d at
446). We construe the pleadings liberally in favor of the plaintiff and look to the
pleader’s intent. Id. If the pleadings do not contain sufficient facts to affirmatively
demonstrate jurisdiction but do not reveal incurable defects, 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. If the pleadings affirmatively negate the
existence of jurisdiction, then a plea to the jurisdiction may be granted without
allowing the plaintiff an opportunity to amend. Id. at 227.
When the governmental entity challenges the existence of jurisdictional
facts, and the parties submit evidence relevant to the jurisdictional challenge, we
consider that evidence when necessary to resolve the jurisdictional issues
raised. Id. at 227. When the jurisdictional issues implicate the merits of the
plaintiff’s claims, the standard of review for a jurisdictional plea based on evidence
“generally mirrors that of a summary judgment under Texas Rule of Civil
Procedure 166a(c).” Id. at 228. We take as true all evidence favoring the
nonmovant and draw all reasonable inferences and resolve any doubts in the
nonmovant’s favor. Id. If the evidence creates a fact question regarding the
jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and
the fact issue will be resolved by the fact finder. Id. at 227–28. But, if the relevant
evidence is undisputed or fails to raise a fact question on the jurisdictional issue,
9
then the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.
B. Is Governmental Immunity Waived for Saifi’s Claims?
1. Waiver of Governmental Immunity under Local Government
Code Section 271.152
Saifi contends that the City’s governmental immunity is waived under
section 271.152 of the Local Government Code, which provides:
A local governmental entity that is authorized by statute or the
constitution to enter into a contract and that enters into a contract
subject to this subchapter waives sovereign immunity to suit for the
purpose of adjudicating a claim for breach of the contract, subject to
the terms and conditions of this subchapter.
Tex. Loc. Gov’t Code § 271.152. To meet the definition of a “contract subject to
this subchapter,” the contract must: (1) be in writing; (2) state the essential terms of
the agreement; (3) provide for goods and services to the local governmental entity;
and (4) be executed on behalf of the local governmental entity. Williams, 353
S.W.3d at 135 (citing Tex. Loc. Gov’t Code § 271.151(2)).
In his petition, Saifi alleged that the City is governed by the Civil Service
Act and is a party to a series of CBAs with the fire fighters’ union. Saifi also
alleged that at the time he was hired by the City, the governing CBA authorized
modifications to the Civil Service Act’s statutory scheme of employment and that,
in relevant part, the COE Agreement he signed when he was hired by the City
modified the paramedic certification requirement he challenged in his lawsuit. It is
undisputed that Saifi alleged in his petition that the City’s immunity was waived
under section 271.152, the City is a local government entity that is authorized by
statute or the constitution to enter into a contract, and Saifi executed the COE
Agreement when he was hired by the City. The dispute centers on whether the
COE Agreement meets the definition of a “contract subject to this this subchapter.”
10
a. Existence of “a contract subject to this subchapter”
On appeal, Saifi argues that the COE Agreement, read together with the
CBA and incorporated Civil Service Act provisions, constitutes a written contract
stating the essential terms of the agreement between Saifi and the City for Saifi to
provide firefighting services to the City. Saifi also asserts that the CBA is executed
on behalf of the City, and it is unnecessary for the COE Agreement to be
separately signed for his contract to be executed for purposes of section 271.152.
In support of his argument, Saifi primarily relies on the Supreme Court of Texas’s
decision in City of Houston v. Williams, 353 S.W.3d at 134–143.
In Williams, the court considered whether city ordinances read together
constituted a contract between the city and its firefighters for purposes of section
271.152. See id. at 135–139. After examining the ordinances in detail, the court
determined that the ordinances constituted a unilateral employment contract with
the city within the waiver of section 271.152, which the firefighters accepted by
performing their jobs. Id. at 137–39. Similarly, Saifi argues that governmental
immunity is waived for his breach of contract claim against the City because the
COE Agreement and the CBA read together constitute a contract for purposes of
the statutory waiver. See id. at 137 (“It is ‘well-established law that instruments
pertaining to the same transaction may be read together to ascertain the parties’
intent.’”) (citing Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d
831, 840 (Tex. 2000)).
In his petition, Saifi described the City’s authority under the CBA to alter
the Civil Service Act’s employment scheme, as reflected in the COE Agreement,
but he did not expressly allege the theory that the COE Agreement and the CBA
together constitute a contract for purposes of section 271.152. On appeal, the City
does not respond to Saifi’s theory. Instead, the City argues that the COE
11
Agreement alone does not satisfy the requirements of section 271.152’s waiver
because it is not signed by a representative of the City and does not contain “all the
essential terms of the agreement of employment such as benefits, salary[,] and
leave provisions.” See Williams, 353 S.W.3d at 138–39 (stating that essential
terms may include the time of performance, the price to be paid, and the service to
be rendered, and in the context of employment agreements, may typically include
“compensation, duties or responsibilities”).
In making its argument, the City concedes, however, that the essential terms
of the contract “are found in the CBA,” which “authorizes the City to determine
hiring prerequisites and conditions of employment as are stated in the COE
[Agreement].”4 Moreover, the City does not dispute Saifi’s assertion that the COE
Agreement and CBA, read together, constitute a written contract stating the
essential terms of an agreement for providing firefighting services to the City and
is properly executed on the City’s behalf. See Tex. Loc. Gov’t Code §
271.151(2)(A). Because Saifi’s pleadings do not contain sufficient facts to
affirmatively demonstrate jurisdiction under section 271.152 but do not reveal
incurable defects, we conclude that Saifi should be allowed an opportunity to
amend his pleadings and develop the record with respect to his contention that his
COE Agreement, read together with the CBA and incorporated Civil Service Act
provisions, satisfies the requirements for waiver of the City’s immunity under
section 271.152. See Miranda, 133 S.W.3d at 226–27.
b. Jurisdictional or merits-based evidence
4
The City directs us to a document appended to its brief, which it contends is a copy of
the 2005-2009 CBA; however, this document was not made a part of the record below. We do
not consider documents attached to an appellate brief that are not part of the appellate record.
Ramex Constr. Co. v. Tamcon Servs., Inc., 29 S.W.3d 135, 138 (Tex. App.—Houston [14th
Dist.] 2000, no pet.). Likewise, we do not consider documents attached to Saifi’s appellate
briefing that do not appear in the record.
12
The City contends that the evidence it submitted in support of its plea was
jurisdictional evidence implicating the merits of Saifi’s breach of contract claim,
and therefore the trial court properly reviewed the evidence to determine if a fact
issue existed “as a question of law.” See Hendee v. Dewhurst, 228 S.W.3d 354,
367 (Tex. App.—Austin 2007, pet. denied) (explaining that, when a jurisdictional
challenge implicates the merits of the plaintiff’s cause of action and the plea
includes evidence, a standard of review mirroring that of a summary judgment is
applied, citing Miranda, 133 S.W.3d at 227–28). Saifi responds that the City’s
arguments and evidence focus on defensive matters which bear only on the merits
of his claims and are not appropriate for resolution in a plea to the jurisdiction. See
Bland Indep. Sch. Dist., 34 S.W.3d at 554 (stating that a plea to the jurisdiction
“should be decided without delving into the merits of the case”).
The purpose of a plea to the jurisdiction is “to defeat a cause of action
without regard to whether the claims asserted have merit.” Id. at 554. Moreover,
under section 271.152, a local government entity that enters into a contract
satisfying the statutory requisites “waives sovereign immunity to suit for the
purpose of adjudicating a claim for breach of the contract.” See Tex. Loc. Gov’t
Code § 271.152 (emphasis added). Courts that have considered this language have
declined to address the merits of a plaintiff’s breach of contract claim if the
contract falls within the provisions of the statute. See, e.g., City of Houston v. So.
Elec. Servs., Inc., 273 S.W.3d 739, 744–45 (Tex. App.—Houston [1st Dist.] 2008,
pet. denied) (“To observe that the claim will fail does not deprive the trial court of
jurisdiction to hear it—or in the Legislature’s own words, ‘adjudicate’ it.”); City of
Mesquite v. PKG Contracting, Inc., 263 S.W.3d 444, 448 (Tex. App.—Dallas
2008, pet. denied) (stating that “our only concern on appeal is whether the City’s
immunity from suit has been waived under the local government code” and
13
declining to address the merits of the breach of contract claim).
The City argues that the trial court was entitled to conclude as a matter of
law that Saifi’s pre-employment EMT-basic course work satisfies the “similar
placement test” requirement. The City argues that evidence it submitted below
establishes the following: (1) Saifi’s pre-employment EMT-basic course work
exceeded the difficulty of either the HOBET or COMPASS tests; (2) it is
“reasonable to infer” that Fire Chief Gorman, who issued the offer of employment
to Saifi, determined that Saifi’s EMT-basic course work was sufficient to satisfy
the “similar placement test” language of the COE Agreement because otherwise he
would not have offered Saifi employment; and (3) Saifi’s behavior demonstrated
that he understood and believed he was required to obtain his paramedic
certification because “only at the last hour” and when facing termination did Saifi
report that he we not required to obtain paramedic certification. The City also
argues that “the issue of Saifi’s pre-employment training was presented and
comparative examples of each course exam were presented to the trial court”
during oral argument. Consequently, the City urges, Saifi is attempting to get
“another bite at the apple” when “in fact the trial court considered Saifi’s training
as part of the proceedings and still dismissed Saifi’s claims.”
The crux of Saifi’s breach of contract claim on the merits is that the COE
Agreement required only those new hires that had passed a HOBET test,
COMPASS test, or “similar placement test specific to Para medicine and/or
Paramedic certification” to obtain paramedic certification, and that Saifi had never
passed any such placement test. The City’s arguments and evidence concerning
Saifi’s alleged conduct and whether his pre-employment EMT-basic coursework
suffices as a “similar placement test” are directed to defeating Saifi’s claim on the
merits and are unrelated to the relevant jurisdictional facts, which are limited to
14
whether the City entered into a contract with Saifi that waives sovereign immunity
under section 271.152. In effect, the City argues that Saifi’s breach of contract
claim is not justiciable because it fails on the merits, but whether the claim is
meritorious—an issue we do not address—does not mean that the trial court lacks
subject matter jurisdiction to adjudicate it. See So. Elec. Servs., Inc., 273 S.W.3d at
744–45; PKG Contracting, Inc., 263 S.W.3d at 447–48. We reject the City’s
suggestion otherwise.
c. The City’s remaining arguments
The City also argues that section 271.152 is “preempted” by the CBA and
COE Agreement. According to the City, although Saifi seeks adjudication of a
contract dispute, Saifi’s COE Agreement is “subservient to the CBA between the
City and the parties” and Saifi has not alleged a breach of the CBA. No substantive
argument accompanies this assertion, and the City does not cite to the record or
any supporting authorities in support of this assertion. We conclude that the City’s
argument is inadequately briefed, and therefore we do not address it. See Canton-
Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931 (Tex. App.—Houston [14th
Dist.] 2008, no pet.); Tex. R. App. P. 38.1(i).
The City also contends that section 271.152 is “impliedly contradicted” by
section 180.006, which waives sovereign or governmental immunity for specified
types of claims for back pay urged by civil service firefighters and police officers.
See Tex. Local Gov’t. Code § 180.006. Again, this argument is not accompanied
by substantive argument or authorities. To the extent the City is urging that the two
provisions are irreconcilable, however, the supreme court rejected this notion in
Williams. See 353 S.W.3d at 141–43 (concluding that the two statutes provide
distinct, yet coexistent waivers of immunity).
The City next argues that Saifi’s claims must be dismissed because chapter
15
143 of the Local Government Code provides no right of appeal for non-
disciplinary terminations. In support of this contention, the City relies on Jackson
v. City of Texas City, a superficially similar case involving Texas City fire fighters
who, like Saifi, also challenged their terminations for failing to complete the EMT
certification requirements contained in their COE agreements. See 265 S.W.3d 640
(Tex. App.—Houston [1st Dist.] 2008, pet. denied). In Jackson, the fire fighters
argued that their terminations should have been deemed disciplinary rather than
non-disciplinary so that they could invoke chapter 143’s administrative appeal
procedures for disciplinary grievances. See id. at 647–648. The court concluded
that the firefighters’ dismissals for failing to fulfill the conditions of their
employment did not fall under any of the specifically enumerated grounds for
which the Civil Service Act provides a right to an administrative appeal. Id. at 648.
Accordingly, the court held that the firefighters “failed to state a justiciable claim
for relief because the Act does not apply to their termination” and affirmed the trial
court’s grant of the city’s plea to the jurisdiction. Id. at 649.
The City argues that Jackson likewise requires this Court to affirm the trial
court’s ruling on its plea to the jurisdiction. According to the City, Saifi is merely
attempting to recast a failed civil service appeal as a breach of contract and
declaratory judgment claim because Chief Gorman discharged Saifi for non-
disciplinary reasons. However, Saifi does not seek a chapter 143 disciplinary
appeal; moreover, Jackson did not address section 271.152 as an alternate basis for
waiver of sovereign immunity. Because we conclude that Saifi is entitled to a
remand to further develop his jurisdictional theory that the COE Agreement and
the CBA, read together, constitute a contract for purposes of section 271.152, the
City’s argument that Jackson is dispositive is misplaced.
Finally, the City contends that any dispute or claims Saifi may allegedly
16
have are waived under the CBA. The City points to portions of the CBA providing
that the City has the right to determine and establish pre-employment employee
qualifications, standards, and terms and conditions of employment. The City
argues that “[b]y entering into the CBA, the parties agreed that its provisions take
precedence over the applicable sections of the Texas Local Government Code
whenever the provisions of the contract are in conflict.” The City suggests that
because Saifi failed to pursue—and thus waived—the CBA’s grievance
procedures, and instead sought a chapter 143 appeal to which he was not entitled,
he should not be allowed to recast his appeal as a contract claim in district court to
circumvent the process.5 However, Saifi does not pursue a civil service violation
claim on appeal, and the City does not direct us to any evidence or authority to
support the contention that the CBA’s grievance procedures would apply to Saifi’s
contract dispute. Nor does the City explain how the CBA would otherwise
preclude Saifi’s assertion that the City’s immunity is waived under Local
Government Code section 271.152.
In sum, we sustain Saifi’s issue to the extent that the trial court granted the
City’s plea to the jurisdiction based on Local Government Code section 271.152,
and we reverse and remand the case for further proceedings concerning Saifi’s
breach of contract claim.
5
To support its argument that Saifi’s own conduct should preclude the application of
section 271.152, the City cites Donna Indep. Sch. Dist. v. Gracia, 286 S.W.3d 392 (Tex. App.—
Corpus Christi 2008, no pet.). In that case, Gracia was terminated from his position and
requested a hearing pursuant to the Texas Education Code. Id. at 393. Before the hearing, Gracia
entered into a settlement agreement with the school district. Id. Gracia later sued the school
district for breach of the settlement agreement. Id. The court held that the school district’s
sovereign immunity was not waived under section 271.152 because Gracia settled while his case
was pending in the statutory administrative process. See id. at 395. The present case is
distinguishable, however, because Saifi’s breach of contract claim is not based on a settlement
agreement entered into while an administrative proceeding was pending concerning a dispute in
which sovereign immunity had not been waived.
17
2. Constitutional Violation
Saifi also contends that he has a right to continued employment under the
Civil Service Act that is a vested property right under Article I, section 19 of the
Texas Constitution,6 which the City deprived him of without due course of law
when it terminated him in violation of the terms of the COE Agreement. Saifi
argues that the Civil Service Act provides for continued tenure absent misconduct
after the probationary period has been satisfactorily completed, and that it is
undisputed that Saifi had completed his probationary period and was a full-fledged
civil service firefighter. Saifi maintains that the trial court had jurisdiction to hear
and resolve his constitutional claim.
In his original petition, Saifi did not allege a constitutional deprivation of a
protected property right without due course of law, but the issue was raised during
the hearing on the City’s motion to dismiss. Our supreme court has held that a
party waives an unpleaded constitutional basis for judicial review even if it was
raised and argued at the hearing on the plea. See Cont’l Cas. Ins. Co. v. Functional
Restoration Assocs., 19 S.W.3d 393, 405 (Tex. 2000). Applying this precedent, we
likewise hold that Saifi has waived his constitutional claim, and the trial court did
not err by dismissing it.
3. Declaratory Judgment
In the portion of his petition seeking declaratory relief, Saifi alleged that he
sought a declaratory judgment “construing the [COE] Agreement and declaring
that he is not in breach of said Agreement.” Saifi also seeks a declaration that he is
entitled to reinstatement and continued employment absent just cause. Saifi argues
6
Article I, section 19 of the Texas Constitution provides: “No citizen of this State shall
be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised,
except by the due course of law of the land.” Tex. Const. art. I, § 19.
18
that governmental immunity has been waived with respect to his declaratory
judgment claims because one of the express uses for the UDJA is for resolution of
contract disputes.
The UDJA is a remedial statute designed “to settle and to afford relief from
uncertainty and insecurity with respect to rights, status, and other legal relations.”
See Tex. Civ. Prac. & Rem. Code § 37.002(b); Tex. Natural Res. Conservation
Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). The UDJA provides:
A person interested under a deed, will, written contract, or other
writings constituting a contract or whose rights, status, or other legal
relations are affected by a statute, municipal ordinance, contract, or
franchise may have determined any question of construction or
validity arising under the instrument, statute, ordinance, contract, or
franchise and obtain a declaration of rights, status, or other legal
relations thereunder.
Tex. Civ. Prac. & Rem. Code § 37.004(a). Although the UDJA waives sovereign
immunity for challenges to the validity and interpretation of a statute or ordinance,
it is not a general waiver of sovereign immunity. See City of Dallas v. Albert, 354
S.W.3d 368, 378 (Tex. 2011); Tex. Lottery Comm’n v. First State Bank of
DeQueen, 325 S.W.3d 628, 633–35 (Tex. 2010); City of El Paso v. Heinrich, 284
S.W.3d 366, 373 n.6 (Tex. 2009). The UDJA “does not extend a trial court’s
jurisdiction, and a litigant’s request for declaratory relief does not confer
jurisdiction on a court or change a suit’s underlying nature.” IT-Davy, 74 S.W.3d at
855.
Declaratory judgment suits to establish a contract’s validity, to enforce
performance under a contract, or to impose contractual liabilities are types of suits
that may not be maintained against a state or governmental entity absent a statutory
waiver or legislative consent. See id. at 855–56; Multi-Cnty. Water Supply Corp. v.
City of Hamilton, 321 S.W.3d 905, 908 (Tex. App.—Houston [14th Dist.] 2010,
19
pet. denied). Moreover, the underlying nature of a plaintiff’s contract claim is not
altered simply because the plaintiff seeks to prevent the governmental entity from
continuing an alleged breach of contract in the future rather than seeking monetary
damages for a breach that may have occurred in the past. Multi-Cnty. Water Supply
Corp., 321 S.W.3d at 909.
Saifi acknowledges that the City’s immunity is not waived as to his request
for money damages, but he maintains that under the UDJA the trial court has
jurisdiction to resolve the parties’ dispute over their competing interpretations of
the same contractual provision and Saifi’s request for reinstatement. Because
Saifi’s requested relief may be sought in connection with his breach of contract
claim if he establishes on remand that the City’s immunity is waived under Local
Government Code section 271.152, as discussed above, we conclude it is
unnecessary to reach this issue. However, to the extent Saifi contends that he may
separately seek declarations that he is not in breach of the COE and is entitled to
reinstatement, the UDJA does not waive the City’s immunity for the requested
relief. See IT-Davy, 74 S.W.3d at 855; Multi-Cnty. Water Supply Corp., 321
S.W.3d at 909; see also City of Dallas v. Turley, 316 S.W.3d 762, 771 (Tex.
App.—Dallas 2010, pet. denied) (holding that trial court erred in denying city’s
plea to the jurisdiction because plaintiff’s claims for declaratory relief did not
challenge the validity of a city ordinance and were made against the city itself).7
7
In his reply brief, Saifi contends that the UDJA waives the City’s immunity regarding
his request for reinstatement, citing City of Forth Worth v. Jacobs, 382 S.W.3d 597 (Tex. App.—
Fort Worth 2012, pet. dism’d) and City of Aspermont v. Rolling Plains Groundwater
Conservation Dist., 258 S.W.3d 231 (Tex. App.—Eastland 2008), aff’d, 353 S.W.3d 756 (Tex.
2011). Both are distinguishable. In City of Aspermont, the court held that the city’s immunity
was waived as to the conservation district’s declaratory judgment action requesting that the trial
court construe certain legislation and declare that the city was required to comply with applicable
rules and regulations. 258 S.W.3d at 236. In Jacobs, the court held that the trial court had
jurisdiction over Jacobs’ claims for equitable relief based on state constitutional violations—not
the UDJA. 258 S.W.3d at 600–01. Here, Saifi failed to allege any constitutional claim and he
20
Accordingly, the trial court did not err by dismissing Saifi’s declaratory judgment
claims for lack of jurisdiction.
4. Claim for Back Pay under Section 180.006
Saifi next contends that the City’s governmental immunity is waived under
section 180.006 of the Local Government Code because he is a firefighter covered
by Chapter 143 who has alleged a claim for back pay. In relevant part, section
180.006 provides:
(a) This section applies only to a firefighter or police officer covered
by:
(1) Chapter 141, 142, or 143 or this chapter;
(2) a municipal charter provision conferring civil service
benefits of a municipality that has not adopted Chapter 143; or
(3) a municipal ordinance enacted under Chapter 142 or 143.
(b) A firefighter or police officer described by Subsection (a) who
alleges the employing municipality’s denial of monetary benefits
associated with the recovery of back pay authorized under a provision
listed in Subsection (a) or a firefighter described by Subsection (a)
who alleges the denial of monetary civil penalties associated with
recovery of back pay owed under Section 143.134(h) may seek
judicial review of such denial only as provided in Subsections (e) and
(f), provided that if there is no applicable grievance, administrative or
contractual appeal procedure available under Subsection (e), the
firefighter or police officer may file suit against the employing
municipality directly in district court under the preponderance of the
evidence standard of review.
(c) Sovereign and governmental immunity of the employing
municipality from suit and liability is waived only to the extent of
liability for the monetary benefits or monetary civil penalties
described by Subsection (b). This section does not waive sovereign or
governmental immunity from suit or liability for any other claim,
including a claim involving negligence, an intentional tort, or a
does not challenge the validity or interpretation of any statute or municipal ordinance.
21
contract unless otherwise provided by the statute.
...
e) Before seeking judicial review as provided by Subsection (b), a
firefighter or police officer must initiate action pursuant to any
applicable grievance or administrative appeal procedures prescribed
by state statute or agreement and must exhaust the grievance or
administrative appeal procedure.
(f) If judicial review is authorized under statute, judicial review of the
grievance or administrative appeal decision is under the substantial
evidence rule, unless a different standard of review is provided by the
provision establishing the grievance or administrative appeal
procedure.
Tex. Local Govt. Code § 180.006. Saifi claims that he was a firefighter covered by
chapter 143 at the time he was terminated, he lost wages he would have earned
from continued employment with the City, and no grievance procedure or
administrative appeal is available to him.
It is undisputed that Saifi was a firefighter covered under Chapter 143, as
subsection (a) requires. See id. § 180.006(a). But the statute does not provide a
broad waiver of immunity for all claims in which a covered firefighter or police
officer seeks back pay. The waiver of immunity is limited to two types of claims:
 the employing municipality’s denial of monetary benefits associated with the
recovery of back pay authorized under a provision listed in Subsection (a),
or
 the denial of monetary civil penalties associated with recovery of back pay
owed under Section 143.134(h).8
8
Section 143.134(h) provides that if a firefighter files a grievance that is resolved in his
favor and the department head does not implement the relief granted to the firefighter within 10
days after the date in which the decision is issued, the municipality shall pay the firefighter
$1,000 for each day after the 10-day period that the decision is not yet implemented. See Tex.
Local Gov’t. Code § 143.134(h).
22
See id. § 180.006(b). The statute makes clear that governmental immunity is
waived only to the extent of liability for the “monetary benefits or monetary civil
penalties” described by subsection (b), and that governmental immunity is not
waived for any other claim, including “a claim involving . . . a contract,” unless
otherwise provided by the statute. See id. § 180.006(c).
In his petition, Saifi alleged only that the City’s immunity was expressly
waived under the statute; no administrative procedure was available to him; and all
conditions precedent to his recovery have been performed or have occurred. Saifi
did not allege either (1) that he was denied monetary benefits associated with the
recovery of back pay authorized under a provision of Chapter 141, 142, or 143, or
(2) that he was denied monetary civil penalties associated with the recovery of
back pay owed under section 143.134(h). See id. § 180.006(b). And, as the City
argues, section 180.006 does not waive immunity for contract-based claims. See
id. § 180.006(c); Williams, 353 S.W.3d at 142 n.13. However, Saifi did plead for
lost wages.
On appeal, Saifi contends that he does not rely on section 180.006 to waive
the City’s immunity as to his contract claims, and he asserts that back pay for lost
wages “is clearly a monetary benefit [he] was entitled to absent the City illegally
terminat[ing] his employment.” Because Saifi’s pleadings are deficient but do not
affirmatively negate the existence of jurisdiction, we conclude that Saifi is entitled
to an opportunity to amend his petition to correct any curable defects on remand.
See Soto v. City of Edinburg, No. 13-12-00419-CV, 2013 WL 593846, at *2 (Tex.
App.—Corpus Christi Feb. 14, 2013, no pet.) (mem. op.); cf. City of San Antonio v.
Caruso, 350 S.W.3d 247, 251 (Tex. App.—San Antonio 2011, pet. denied)
(affirming denial of city’s plea to jurisdiction when police officers affirmatively
pleaded claims for back pay under a specific provision of chapter 142).
23
CONCLUSION
We reverse the trial court’s judgment granting the City’s plea to the
jurisdiction and remand the case for further proceedings consistent with this
opinion.
/s/ Ken Wise
Justice
Panel consists of Justices Boyce, Busby, and Wise.
24