Arnold Ochoa v. the City of Palmview ( 2014 )

NUMBER 13-14-00021-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ARNOLD OCHOA, Appellant,
v.
THE CITY OF PALMVIEW, Appellee.
On appeal from the 92nd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Garza
In this accelerated appeal, appellant Arnold Ochoa challenges the trial court’s
judgment granting a plea to the jurisdiction in favor of appellee, the City of Palmview,
Texas (“Palmview”), on the basis of governmental immunity. We affirm.
I. BACKGROUND
Ochoa served as a patrolman with the Palmview Police Department beginning in
1995. According to Ochoa, in 2011, he was offered the vacant position of police chief in
the nearby city of La Joya. Ochoa asserts that, in an attempt to retain him, the Palmview
city council created a new position of Assistant Chief of Public Safety and offered that
position to him. Ochoa accepted the Assistant Chief position and rejected the offer of
employment from La Joya.
At the time, Ochoa also served on the school board for the La Joya Independent
School District (“LJISD”). He ran for re-election to the school board in 2012 and was
opposed by, among other candidates, the father of a Palmview city councilmember.
Ochoa alleges that various City officials then “began an organized, orchestrated effort to
unseat [him] and anyone perceived to be politically aligned with him.” He alleges that the
Palmview officials “issued an ultimatum: switch political parties, drop out of the race, or
suffer a demotion.” Ochoa did not drop out of the race, and in July of 2012, the city council
demoted him to his prior position of Commander. Ochoa asserts that, in August of 2012,
Hidalgo County Commissioner Joe Flores and Palmview City Manager Johnn Alaniz told
him that he would be reinstated to his prior position of Assistant Chief if he dropped out
of the school board election. Ochoa declined to do so. He later lost his bid for re-election
to the school board in November of 2012.
Shortly after the election, Palmview Police Chief Christopher Barrera informed
Ochoa that a “preliminary investigation” revealed that Ochoa had “misused a [Texas
Alcoholic Beverage Commission (“TABC”)] license for personal gain.” In particular,
Palmview officials asserted that Ochoa sold alcoholic drinks at a city festival in April of
2012 using a TABC license belonging to the local Crime Stoppers organization.
According to Ochoa, Barrera told him that this was a crime and that, if Ochoa did not
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resign, he would be arrested. Ochoa resigned on November 8, 2012.
Ochoa then brought suit against Palmview seeking declaratory and equitable relief
as well as actual and exemplary damages.1 Ochoa alleged that his resignation was a
constructive termination and that: (1) the city council violated the Texas Open Meetings
Act (“TOMA”) by meeting and making decisions without notice to the public; (2) he was
wrongfully terminated for exercising his free speech rights; and (3) he was wrongfully
terminated for his refusal to perform an illegal act. The petition also brought claims of
breach of contract and promissory estoppel.2
Palmview answered the suit by filing a “Plea to the Jurisdiction and Motion for
Summary Judgment.” In the motion, Palmview asserted: (1) Ochoa “has no evidence,
or insufficient evidence,” to establish a TOMA violation; (2) Ochoa “has not identified a
constitutional violation” with respect to his free speech rights; (3) Ochoa “has no evidence
to establish he was terminated for refusing to commit an illegal act”; (4) Ochoa “cannot
establish the existence of a contract or a breach thereof”; and (5) governmental immunity
bars Ochoa’s fraudulent inducement and promissory estoppel claims. The motion was
accompanied by excerpts of deposition testimony by Ochoa and Barrera as well as
1 Ochoa also named Flores and Alaniz, among others, as defendants in his original petition.
Ochoa’s sixth amended petition named only Flores and Hidalgo County Judge Ramon Garcia as individual
defendants. His seventh amended petition, filed after the plea to the jurisdiction hearing, named only Flores
and Palmview as defendants. The individual defendants did not join in the plea to the jurisdiction and are
not parties to this appeal.
Flores filed a motion with this Court seeking to lift the statutory stay on trial court proceedings which
was triggered by Ochoa’s appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b) (West, Westlaw
through 2013 3d C.S.) (providing that an interlocutory appeal of a plea to the jurisdiction ruling “stays all
other proceedings in the trial court pending resolution of that appeal”). We will deny the motion as moot.
2 Ochoa also brought claims of intentional infliction of emotional distress, tortious interference with
a contract or prospective business relationships, fraudulent inducement, and conspiracy. Ochoa does not
contend on appeal that the trial court erred in dismissing these claims for lack of jurisdiction; accordingly,
we do not address them.
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excerpts from Palmview’s city charter and personnel policy manual. Ochoa filed a
response to which he attached a full transcript of his deposition,3 and Palmview filed a
reply.
The trial court granted the plea to the jurisdiction4 and this appeal followed.5 See
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (West, Westlaw through 2013 3d C.S.)
(permitting appeal of interlocutory order granting or denying a plea to the jurisdiction by a
governmental unit); TEX. R. APP. P. 28.1(a) (providing that appeals from interlocutory
orders, when allowed by statute, are accelerated).
II. DISCUSSION
A. Standard of Review
A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without
regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject matter
3 Also attached to Ochoa’s response were three audio recordings containing statements allegedly
made by Ochoa, among other people. The recordings do not appear in the record before this Court.
Palmview filed an objection to the recordings on the basis that the statements made therein were not
authenticated or sworn to. Ochoa does not dispute that the statements made in the recordings were not
authenticated or sworn to, but instead argues that Palmview waived any objection to the recordings
because its objection was made three days after the plea to the jurisdiction hearing. However, the record
reflects that the objection was filed on the same day as the hearing, November 22, 2013. In any event,
“[t]he failure of an affidavit to be made on personal knowledge or specify how the affiant had personal
knowledge of the facts asserted is a defect in substance, not form, and need not be objected to at trial to
be a ground for reversal.” City of Wilmer v. Laidlaw Waste Sys. (Dallas), Inc., 890 S.W.2d 459, 467 (Tex.
App.—Dallas 1994), aff’d, 904 S.W.2d 656 (Tex. 1995). Because it is undisputed that the audio recordings
did not “specify how the affiant had personal knowledge of the facts asserted,” id., and because no objection
at trial was necessary to preserve this issue, see id., we conclude that the audio recordings were
inadmissible as evidence on the jurisdiction issue, and we do not consider them in our analysis.
4 The trial court initially rendered an order granting both the plea to the jurisdiction and the motion
for summary judgment. Subsequently, the trial court rendered a corrected order granting only the plea to
the jurisdiction. Palmview’s summary judgment motion is therefore not before us.
5 Palmview’s appellate brief lists eleven “Issues Presented for Review” which do not correspond to
the six issues enumerated in Ochoa’s brief. We note that, “[w]hen practicable, the appellee’s brief should
respond to the appellant’s issues or points in the order the appellant presented those issues or points.”
TEX. R. APP. P. 38.2(a)(2).
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jurisdiction. Id.; see Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
Whether a trial court has subject matter jurisdiction and whether the pleader has alleged
facts that affirmatively demonstrate the trial court’s subject matter jurisdiction are
questions of law that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation Comm’n v. IT–Davy, 74
S.W.3d 849, 855 (Tex. 2002).
The plaintiff has the initial burden to plead facts affirmatively showing that the trial
court has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446
(Tex. 1993); Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 220 (Tex. App.—Fort Worth
2003, pet. denied). We construe the pleadings liberally in favor of the pleader, look to the
pleader’s intent, and accept as true the factual allegations in the pleadings. See Miranda,
133 S.W.3d at 226, 228; City of Fort Worth v. Crockett, 142 S.W.3d 550, 552 (Tex. App.—
Fort Worth 2004, pet. denied).
If a plea to the jurisdiction challenges the existence of jurisdictional facts, we
consider relevant evidence submitted by the parties when necessary to resolve the
jurisdictional issues raised, as the trial court is required to do, even when the evidence
implicates the merits of the cause of action. Miranda, 133 S.W.3d at 227; Blue, 34 S.W.3d
at 555; see City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). A review of a plea
to the jurisdiction challenging the existence of jurisdictional facts mirrors that of a
traditional motion for summary judgment. Miranda, 133 S.W.3d at 228. The
governmental unit is required to meet the summary judgment standard of proof for its
assertion that the trial court lacks jurisdiction. Id. Once the governmental unit meets its
burden, the plaintiff is then required to show that there is a disputed material fact regarding
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the jurisdictional issue. Id. If the evidence creates a fact question regarding jurisdiction,
the trial court must deny the plea to the jurisdiction and leave its resolution to the fact
finder. Id. at 227–28. But, if the evidence is undisputed or fails to raise a fact question
on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of
law. Id. at 228. In considering this evidence, we “take as true all evidence favorable to
the nonmovant” and “indulge every reasonable inference and resolve any doubts in the
nonmovant's favor.” Id.
If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial
court's jurisdiction, but do not affirmatively demonstrate incurable defects in jurisdiction,
the plaintiff should be afforded the opportunity to amend its pleadings. Miranda, 133
S.W.3d at 226–27. Further, a defendant cannot simply deny the existence of jurisdictional
facts and force the plaintiff to raise a fact issue. See Johnson v. Brewer & Pritchard, P.C.,
73 S.W.3d 193, 207 (Tex. 2002). In other words, a defendant may not advance a “no-
evidence” plea to the jurisdiction. See id.; cf. TEX. R. CIV. P. 166a(i) (allowing for no-
evidence motion for summary judgment).
B. Applicable Law
The doctrine of sovereign immunity provides that “no state can be sued in her own
courts without her consent, and then only in the manner indicated by that consent.” Tooke
v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006) (citing Hosner v. DeYoung, 1 Tex. 764,
769 (1847)). Governmental immunity operates like sovereign immunity to afford similar
protection to subdivisions of the State such as cities. Harris Cnty. v. Sykes, 136 S.W.3d
635, 638 (Tex. 2004).
In Texas, governmental immunity has two components: (1) immunity from liability,
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which bars enforcement of a judgment against a governmental entity; and (2) immunity
from suit, which bars suit against the entity altogether. Tooke, 197 S.W.3d at 332.
Immunity from liability is an affirmative defense that must be pleaded or else is waived.
Kinnear v. Tex. Comm’n on Human Rights, 14 S.W.3d 299, 300 (Tex. 2000). Immunity
from suit, on the other hand, deprives a court of subject matter jurisdiction. Miranda, 133
S.W.3d at 224. Governmental immunity from suit may be waived only by “clear and
unambiguous” statutory language. Id. at 332–33; see TEX. GOV’T CODE ANN. § 311.034
(West, Westlaw through 2013 3d C.S.) (“In order to preserve the legislature’s interest in
managing state fiscal matters through the appropriations process, a statute shall not be
construed as a waiver of sovereign immunity unless the waiver is effected by clear and
unambiguous language.”).
C. Analysis
1. Declaratory Judgment Action
The Uniform Declaratory Judgments Act (“UDJA”) generally permits a person who
is interested in a deed, or whose rights, status, or other legal relations are affected by a
statute, to obtain a declaration of rights, status, or other legal relations thereunder. See
TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a) (West, Westlaw through 2013 3d C.S.).
Certain claims brought under the UDJA, such as those alleging that a state official acted
without legal or statutory authority, are not barred by immunity because they merely seek
to compel state officers to act within their official capacity and do not attempt to subject
the State to liability. See IT–Davy, 74 S.W.3d at 855. However, the UDJA is not a general
waiver of sovereign immunity and generally does not alter a trial court's jurisdiction. Tex.
Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). Rather, the
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UDJA is “merely a procedural device for deciding cases already within a court's
jurisdiction.” Id. (citing Tex. Ass’n of Bus., 852 S.W.2d at 444). Moreover, a litigant’s
couching its requested relief in terms of declaratory relief does not alter the underlying
nature of the suit; consequently, immunity will bar an otherwise proper UDJA claim that
has the effect of establishing a right to relief against the State for which the Legislature
has not waived sovereign immunity. Id. (citing City of Houston v. Williams, 216 S.W.3d
827, 828–29 (Tex. 2007) (per curiam)).
Ochoa sought a declaratory judgment stating that his resignation was in fact a
constructive termination brought about by actions of the city council which were invalid
because they failed to comply with TOMA. See TEX. GOV’T CODE ANN. § 551.002 (West,
Westlaw through 2013 3d C.S.). He also sought a declaration that he was impermissibly
terminated for his refusal to perform an illegal act, see Sabine Pilot Serv., Inc. v. Hauck,
687 S.W.2d 733, 735 (Tex. 1985) (holding that “public policy . . . requires a very narrow
exception to the employment-at-will doctrine . . . cover[ing] only the discharge of an
employee for the sole reason that the employee refused to perform an illegal act”), and
that the city’s actions violated his right to freedom of speech. See TEX. CONST. art. I, § 8.
a. Open Meetings Act Violation
By his first issue, Ochoa asserts that the trial court erred in granting Palmview’s
plea to the jurisdiction with respect to his TOMA claim. We disagree.
Palmview asserted in its plea to the jurisdiction that Ochoa failed to allege facts
that would establish a violation of the statute. Under TOMA, “[e]very regular, special, or
called meeting of a governmental body shall be open to the public, except as provided by
this chapter.” TEX. GOV’T CODE ANN. § 551.002. The statute defines “governmental body”
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as including a “municipal governing body in the state” and “meeting” as:
(A) a deliberation between a quorum of a governmental body, or
between a quorum of a governmental body and another person,
during which public business or public policy over which the
governmental body has supervision or control is discussed or
considered or during which the governmental body takes formal
action; or
(B) except as otherwise provided by this subdivision, a gathering:
(i) that is conducted by the governmental body or for which the
governmental body is responsible;
(ii) at which a quorum of members of the governmental body is
present;
(iii) that has been called by the governmental body; and
(iv) at which the members receive information from, give
information to, ask questions of, or receive questions from any
third person, including an employee of the governmental
body, about the public business or public policy over which
the governmental body has supervision or control.
The term does not include the gathering of a quorum of a governmental
body at a social function unrelated to the public business that is conducted
by the body, or the attendance by a quorum of a governmental body at a
regional, state, or national convention or workshop, ceremonial event, or
press conference, if formal action is not taken and any discussion of public
business is incidental to the social function, convention, workshop,
ceremonial event, or press conference.
The term includes a session of a governmental body.
Id. § 551.001(3)(C), (4) (West, Westlaw through 2013 3d C.S.).
We have reviewed Ochoa’s pleadings and we can discern no factual allegations
that, even if taken as true, see Miranda, 133 S.W.3d at 226, 228, would support a TOMA
violation. Ochoa alleges that there was a meeting at which Hidalgo County Judge Ramon
Garcia declared his intent to sue LJISD,6 and that there was a separate meeting at which
6 Specifically, Ochoa alleged:
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various Palmview city councilmembers and other elected officials informed Ochoa that he
would be reinstated to his old position if he withdrew from the LJISD board election.
Ochoa’s petition also alleged that “[i]t was made very clear that the City Commissioners
had made the decision [to threaten Ochoa] prior to any formal or open meeting.”
However, these allegations do not establish that any “meeting” took place, as defined by
the statute, at which a quorum of city councilmembers were present or during which public
policy was discussed or formal action taken. See TEX. GOV’T CODE ANN. § 551.001(4).
Additionally, even if Ochoa alleged facts establishing that a meeting subject to
TOMA took place, the Texas Supreme Court has held that “the UDJA does not waive the
state’s sovereign immunity when the plaintiff seeks a declaration of his or her rights under
a statute or other law.” Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011);
see City of McKinney v. Hank’s Rest. Grp., L.P., 412 S.W.3d 102, 112 (Tex. App.—Dallas
2013, no pet.); Boll v. Cameron Appraisal Dist., No. 13-11-00750-CV, 2013 WL 4187756,
at *2 (Tex. App.—Corpus Christi Aug. 15, 2013, no pet.). In Sefzik, the Texas Supreme
Court noted that “the state may be a proper party to a declaratory judgment action that
challenges the validity of a statute.” 355 S.W.3d 618, 622 (Tex. 2011). The Legislature
“clear[ly] and unambiguous[ly]” waived immunity for such suits “because the UDJA
expressly requires joinder of the governmental unit” in those cases. Id. at 622 n.3 (citing
TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b) (“In any proceeding that involves the
Ramon Garcia stated at one of the first meetings to solicit clients to sue the La Joya
Independent School District made clear statements [sic] that he intended to use the lawsuit
to get people out of the School District and put “their” . . . people into positions at the School
District. Defendant Garcia went on to say that he thought the lawsuit was a good way to
get . . . their . . . agenda furthered. Several people at this meeting were offended by the
blatant malicious purpose behind the lawsuit.
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validity of a municipal ordinance or franchise, the municipality must be made a
party . . . .”)). The plaintiff in Sefzik, however, did not challenge the validity of a statute;
rather, he challenged the state’s actions under it. See id. at 622. Therefore, there was
no express waiver of immunity with respect to his claim. See id. Similarly, Ochoa is not
challenging the validity of TOMA but is instead seeking a declaration of his rights under
that statute. Under Sefzik, Palmview is immune to that type of claim. See id. at 621.
For the foregoing reasons, we conclude that Ochoa did not satisfy his initial burden
to plead facts affirmatively showing that the trial court has jurisdiction as to his TOMA
claim. See Tex. Ass’n of Bus., 852 S.W.2d at 446. We overrule Ochoa’s first issue.
b. Violation of Right to Freedom of Speech
By his second issue, Ochoa asserts that the trial court erred in granting the plea to
the jurisdiction as to his claim for violation of his right to freedom of speech.
Article I, section 8 of the Texas Constitution provides in part that “[e]very person
shall be at liberty to speak, write or publish his opinions on any subject, being responsible
for the abuse of that privilege . . . .” TEX. CONST. art. I, § 8. There is no implied private
right of action for damages arising under this provision. City of Beaumont v. Bouillion,
896 S.W.2d 143, 147 (Tex. 1995). However, equitable relief may be available. See id.
at 149 (“[S]uits for equitable remedies for violation of constitutional rights are not
prohibited.”). Ochoa’s claim for violation of his free speech rights was set forth in his live
petition as follows:
Plaintiff’s conduct complained [of] by the City of Palmview and for which
plaintiff’s employment and or position was terminated consisted of the
Plaintiff refusing to . . . be bribed or black mailed to change his vote on
political issues regarding the La Joya School Board. The individual
Defendants acted intentionally and conspired with one another to cause the
Plaintiff harm. Plaintiff’s exercise of free speech is a right protected by the
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Texas Constitution, Article I, Section 8. Accordingly, plaintiff’s termination
violated plaintiff’s free speech rights and was not conduct for which plaintiff’s
employment can be legally terminated.
Ochoa argues on appeal that his petition requested only equitable relief, not damages,
with respect to this claim. See id. In addition to actual and exemplary damages, Ochoa’s
live petition requested “Specific Relief” including an “injunction [prohibiting] the Defendant
from engaging in unlawful employment practices as defined in the Texas Labor Code”
and “[reinstatement] to the position and pay grade which Plaintiff held but for the unlawful
employment actions of Defendant.” The petition did not state which specific causes of
action corresponded to these requests for relief.
Even assuming that Ochoa sought only equitable relief with respect to this claim,
we agree with Palmview that Ochoa failed to allege facts that affirmatively demonstrate
the trial court’s jurisdiction as to this claim. Suits seeking to require state officials to
comply with statutory or constitutional provisions are not prohibited by sovereign
immunity. City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Under this ultra
vires exception to immunity, a suit must allege that the officer acted without legal authority
or failed to perform a purely ministerial act. Id. However, “the proper defendant in an
ultra vires action is the state official whose acts or omissions allegedly trampled on the
plaintiff's rights, not the state agency itself.” Sefzik, 355 S.W.3d at 620; see Heinrich, 284
S.W.3d at 373 (holding that suits alleging ultra vires actions by government officials
“cannot be brought against the state, which retains immunity, but must be brought against
the state actors in their official capacity” and noting that “[t]his is true even though the suit
is, for all practical purposes, against the state”). Further, the ultra vires exception to
immunity permits only prospective declaratory or injunctive relief restraining ultra vires
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conduct, as opposed to retroactive relief. See Heinrich, 284 S.W.3d at 374 (“[C]laims for
prospective injunctive relief are permissible, while claims for retroactive relief are not,”
because the latter type of relief is “‘in practical effect indistinguishable in many aspects
from an award of damages against the State.’” (quoting Edelman v. Jordan, 415 U.S. 651,
668 (1974)).
The ultra vires claims at issue in this appeal were brought against a subdivision of
the state, not a state official in his or her official or individual capacity. See id. at 373;
Sefzik, 355 S.W.3d at 620 (holding that immunity was not waived in part because the
plaintiff “did not sue any state official”). Moreover, Ochoa’s request for reinstatement
constituted a demand for retroactive relief, which is generally unavailable in ultra vires
suits. See Heinrich, 284 S.W.3d at 374. Finally, though Ochoa requested an injunction
restraining Palmview “from engaging in unlawful employment practices as defined in the
Texas Labor Code,” he did not identify any provision of the Texas Labor Code that was
violated. For these reasons, we conclude that Ochoa failed to satisfy his initial burden to
plead facts affirmatively showing that the trial court has jurisdiction with respect to his free
speech claim. See Tex. Ass’n of Bus., 852 S.W.2d at 446. His second issue is overruled.
c. Termination for Refusal to Perform an Illegal Act
By his third issue, Ochoa asserts that the trial court erred in granting the plea to
the jurisdiction as to his claim for wrongful termination for refusal to perform an illegal act.
The general rule in Texas is that absent a specific agreement to the contrary,
employment may be terminated by either the employer or the employee at will, for good
cause, bad cause, or no cause at all. See, e.g., Safeshred, Inc. v. Martinez, 365 S.W.3d
655, 659 (Tex. 2012). In Sabine Pilot Service, Inc. v. Hauck, the Texas Supreme Court
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recognized a “narrow exception” to the employment-at-will doctrine covering “only the
discharge of an employee for the sole reason that the employee refused to perform an
illegal act.” 687 S.W.2d 733, 735 (Tex. 1985); see Safeshred, Inc., 365 S.W.3d at 659.
However, Sabine Pilot involved only non-governmental employees, and Texas courts
have declined to extend the Sabine Pilot exception to governmental employees. See
Midland Indep. Sch. Dist. v. Watley, 216 S.W.3d 374, 376 (Tex. App.—Eastland 2006, no
pet.); Salazar v. Lopez, 88 S.W.3d 351, 353 (Tex. App.—San Antonio 2002, no pet.);
Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex. App.—
Houston [1st Dist.] 1999, pet. dism’d w.o.j.); Carroll v. Black, 938 S.W.2d 134, 134–35
(Tex. App.—Waco 1996, writ denied)); see also Tex. State Office of Admin. Hearings v.
Birch, No. 04-12-00681-CV, 2013 WL 3874473, at *1 (Tex. App.—San Antonio July 24,
2013, pet. denied) (mem. op.); Nueces Cnty. v. Thornton, No. 13–03–011–CV, 2004 WL
396608, at *5 (Tex. App.—Corpus Christi Mar. 4, 2004, no pet.) (mem. op.). Instead,
courts have held that a governmental entity retains its sovereign immunity when an
employee raises a common law Sabine Pilot cause of action. See Salazar, 88 S.W.3d at
353.
Ochoa has not directed us to any authority establishing that governmental
immunity is waived for a wrongful termination claim under Sabine Pilot. Therefore, we
conclude that Ochoa has failed to plead facts affirmatively showing the trial court’s
jurisdiction as to this claim. See Tex. Ass’n of Bus., 852 S.W.2d at 446. We overrule his
third issue.
2. Breach of Contract and Promissory Estoppel Claims
By his fourth and fifth issues, Ochoa asserts that the trial court erred by granting
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the plea to the jurisdiction as to his breach of contract and promissory estoppel claims,
respectively. Ochoa’s live petition alleged that Palmview “has failed to perform his [sic]
contractual obligations, specifically, it breached it [sic] contract which it entered to employ
the Plaintiff as the Assistant Chief of the Department of Public Safety.” He requested
contractual damages, specific performance, as well as “the costs incurred by Plaintiff in
detrimental reliance on the promise of the Defendant.”
Section 271.152 of the Texas Local Government Code provides a limited waiver
of immunity for contract claims. The statute 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 ANN. § 271.152 (West, Westlaw through 2013 3d C.S.). A “contract
subject to this subchapter” is defined as “a written contract stating the essential terms of
the agreement for providing goods or services to the local governmental entity that is
properly executed on behalf of the local governmental entity.” Id. § 271.151(2) (West,
Westlaw through 2013 3d C.S.). A municipality such as Palmview is a “local government
entity” for purposes of the statute. See id. § 271.151(3)(A).
Ochoa’s live petition makes no mention of a written contract. To the extent Ochoa
based his breach of contract claim on an oral contract, there is no waiver of immunity.
See id. § 271.151(2) (stating that a “contract subject to this subchapter” must be, among
other things, “written”). On appeal, Ochoa appears to argue that the Palmview ordinance
merging its police and fire departments into a unified Department of Public Safety
constitutes a “contract subject to this subchapter” under the statute. However, this
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allegation was not made in Ochoa’s pleadings before the trial court.
Even assuming, but not deciding, that the Palmview ordinance constitutes a
“contract subject to this subchapter” under section 271.151 of the local government code,
we nevertheless conclude that Ochoa has failed to plead facts affirmatively showing the
trial court’s jurisdiction as to this claim. In particular, as noted, the general rule is that,
absent a specific agreement to the contrary, employment may be terminated by either the
employer or the employee at will, for good cause, bad cause, or no cause at all. See,
e.g., Matagorda Cnty. Hosp. Dist., 189 S.W.3d at 739. Ochoa does not contend that the
ordinance at issue constituted a “specific agreement” limiting Palmview’s right, as an at-
will employer, to terminate Ochoa with or without cause. Accordingly, even assuming
that the ordinance was a “a written contract stating the essential terms of the agreement
for providing goods or services to the local governmental entity that is properly executed
on behalf of the local governmental entity,” TEX. LOC. GOV’T CODE ANN. § 271.151(2),
Ochoa has not pleaded facts which, if proven, would establish that Palmview breached
that contract. His fourth issue is therefore overruled.
We reach the same conclusion as to Ochoa’s promissory estoppel claim.
Promissory estoppel is a defensive theory that estops a promisor from denying the
enforceability of a promise. Corpus Christi Day Cruise, LLC v. Christus Spohn Health
Sys. Corp., 398 S.W.3d 303, 311 (Tex. App.—Corpus Christi 2012, pet. denied). It
requires evidence of (1) a promise, (2) foreseeability of reliance thereon by the promisor,
and (3) substantial reliance by the promisee to his detriment. Id. (citing Henry Schein,
Inc. v. Stromboe, 102 S.W.3d 675, 686 n. 25 (Tex. 2002)). To support a finding of
promissory estoppel, the purported promise must be sufficiently specific and definite such
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that it would be reasonable for the promisee to rely upon it as a commitment to future
action. Id. (citing Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141–42 (Tex. App.—Houston
[14th Dist.] 1999, pet. denied)). The purported promise also must be more than mere
speculation concerning future events, a statement of hope, or an expression of opinion,
expectation, or assumption. Id. (citing Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 305
(Tex. App.—Dallas 2009, no pet.)).7
Ochoa’s promissory estoppel claim appears to be based on his allegation that
Palmview, by creating the new position of Assistant Chief of Public Safety, induced him
to accept that position and reject an offer of employment from the city of La Joya.
However, his petition does not identify what promise, if any, Palmview failed to comply
with. The petition does not allege that Palmview committed to employ Ochoa as Assistant
Chief for a particular period of time; nor, as we have noted, did the petition allege that any
contract existed restricting Palmview’s right as an at-will employer to terminate Ochoa’s
employment for any cause or no cause. The facts alleged, even if taken as true, do not
support a finding that Palmview made a “sufficiently specific and definite” promise such
that it would be reasonable for Ochoa to have relied upon it. See id. Accordingly, Ochoa
has not alleged facts affirmatively supporting jurisdiction as to this claim. We overrule
Ochoa’s fifth issue.
7 The general rule is that, when a municipality is exercising its governmental powers, it is not subject
to estoppel. City of Hutchins v. Prasifka, 450 S.W.2d 829, 835 (Tex. 1970); Donna Indep. Sch. Dist. v.
Gracia, 286 S.W.3d 392, 395–96 (Tex. App.—Corpus Christi 2008, no pet.). However, a municipality may
be estopped in certain cases where justice requires the application of estoppel and there is no interference
with the exercise of the municipality's governmental functions. City of Hutchins, 450 S.W.2d at 836. This
very narrow exception is to be applied with caution and only in exceptional cases where the circumstances
clearly demand its application to prevent manifest injustice. City of White Settlement v. Super Wash, Inc.,
198 S.W.3d 770, 774 (Tex. 2006). Because of our conclusion herein that Ochoa failed to allege facts
supporting jurisdiction, we need not determine whether this very narrow exception applies. See TEX. R.
APP. P. 47.1.
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3. Opportunity to Replead
By his sixth issue, Ochoa contends that, in the event we find that his pleadings
were insufficient to establish jurisdiction, we “must allow [him] the opportunity to amend
his pleadings if he can cure any defect.” See Miranda, 133 S.W.3d at 226–27 (“If the
pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s
jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue
is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to
amend.”). We will address Ochoa’s causes of action individually, beginning with his
constitutional ultra vires claim.
In Sefzik, the supreme court allowed the plaintiff to replead because, although he
failed to sue any state officials in his ultra vires suit, the claims were brought prior to the
Heinrich decision, when the law was “‘less than clear’ as to who the proper party was in
a suit for declaratory remedy, as well as [to] the parameters of the ultra vires exception to
the doctrine of sovereign immunity.” Sefzik, 355 S.W.3d at 623; see Rourk v. Cameron
Appraisal Dist., No. 13-11-00751-CV, 2013 WL 4188239, at *2 (Tex. App.—Corpus
Christi Aug. 15, 2013, no pet.) (mem. op.) (same). Here, Ochoa initially filed suit on
September 5, 2012, more than three years after Heinrich was decided. In any event,
Palmview is the only appellee in this appeal, and this defect is incurable as to Palmview
because it is a subdivision of the state, not a state actor. See Heinrich, 284 S.W.3d at
373 (holding that suits alleging ultra vires actions by government officials “cannot be
brought against the state, which retains immunity, but must be brought against the state
actors in their official capacity”). Therefore, Ochoa’s pleadings concerning his
constitutional ultra vires claim are incurably defective.
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Similarly, the defect in Ochoa’s wrongful termination pleadings are incurable as to
Palmview because, as set forth above, the Sabine Pilot exception to the at-will
employment doctrine has not been recognized in the case of government employees.
See Watley, 216 S.W.3d at 376; Salazar, 88 S.W.3d at 353; Hohman, 6 S.W.3d at 777;
Carroll, 938 S.W.2d at 134–35.
Next, with respect to the TOMA claim, Ochoa stated in his deposition that the
meeting at which Palmview allegedly took the decision to threaten him was attended by
City Manager Alaniz and three city councilmembers. However, the Home Rule Charter
for the City of Palmview, which was attached as an exhibit to Palmview’s plea to the
jurisdiction, states that “[a] quorum shall consist of four (4) members: Mayor and three
(3) Councilmembers, or four (4) Council members.” See TEX. GOV’T CODE ANN.
§ 551.001(6) (defining “quorum” as “a majority of a governmental body, unless defined
differently by applicable law or rule or the charter of the governmental body”). The defects
in Ochoa’s TOMA pleadings are incurable because, even if the version of events he
testified to at his deposition is taken as true, no “meeting” as defined by TOMA ever took
place. See id. § 551.001(4)(A), (4)(B)(ii) (defining “meeting” to require the presence of a
quorum of the governmental body).
Finally, with respect to Ochoa’s breach of contract and promissory estoppel claims,
we also find that the pleadings are incurably defective. The basis of the breach of contract
claim is that the city ordinance establishing Palmview’s Department of Public Safety
constituted a written contract, but as noted, there is no indication that the ordinance was
a “specific agreement” to abridge Palmview’s right, as an at-will employer, to terminate
Ochoa without cause. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840
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(Tex. 2007) (“Remanding this case would serve no legitimate purpose because
Koseoglu’s underlying claim is a breach of contract claim. Merely pleading more facts in
support of the breach of contract claim will not overcome Texas A & M’s immunity from
suit.”). As to the promissory estoppel claim, there is no indication in either the pleadings
or the evidence that Palmview failed to comply with any promise to employ Ochoa for a
particular amount of time or that Palmview’s rights as an at-will employer were restricted
in any way. We therefore find that remand for repleading on this claim would serve no
legitimate purpose. See id.
We overrule Ochoa’s sixth issue.
III. CONCLUSION
The trial court’s judgment is affirmed. All pending motions filed in this cause are
hereby denied as moot.
DORI CONTRERAS GARZA,
Justice
Delivered and filed the
19th day of June, 2014.
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