Town of Shady Shores v. Sarah Swanson

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00338-CV
TOWN OF SHADY SHORES APPELLANT
V.
SARAH SWANSON APPELLEE
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FROM THE 442ND DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 14-02914-158
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OPINION
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In this interlocutory appeal, Appellant the Town of Shady Shores (the
Town) appeals the trial court’s denial of its no-evidence and traditional motions
for summary judgment on the claims brought against it by Appellee Sarah
Swanson, the Town’s former city secretary. In six issues, the Town challenges
the trial court’s jurisdiction and the trial court’s determination of Swanson’s
objections to the Town’s no-evidence summary judgment motion. After careful
review, we affirm in part and reverse in part.
I. Background
At a special meeting of the Town of Shady Shores City Council (the
Council) on February 24, 2014, the Town provided Swanson with an employee
performance evaluation. The Council then gave her ten minutes to respond to
the evaluation. It further allowed her to respond in writing and to address the
Council regarding the evaluation at a special council meeting three days later on
February 27, 2014. Both Swanson and her attorney appeared at the February
27th council meeting. At that meeting, the Council voted to terminate Swanson’s
employment for lack of confidence in her performance as city secretary. See
Tex. Loc. Gov’t Code Ann. § 22.077(b) (West 2008). Swanson then sued the
Town.
In her original petition, Swanson alleged that the Town fired her because
she reported and refused to engage in destroying a tape recording of a meeting
of the Town’s investment committee, a subcommittee of the Council. She
alleged that after she refused, members of the investment committee destroyed
the recording; that she told the Council, the mayor, and the Town’s attorney that
the recording’s destruction violated state law; and that this reporting led to her
firing. Swanson asserted a statutory wrongful discharge claim under the Texas
Whistleblower Act, Tex. Gov’t Code Ann. § 554.0035 (West 2012), and a
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common law claim for wrongful discharge under Sabine Pilot Service, Inc. v.
Hauck, 687 S.W.2d 733, 735 (Tex. 1985).
In response, the Town filed a plea to the jurisdiction asserting
governmental immunity for both claims. Swanson then amended her petition to
add a claim for violation of her free speech rights under the Texas Constitution
and claims for declaratory relief based on the Town’s alleged violations of the
Texas Open Meetings Act (TOMA) and of her rights under the “due course”
provision of article 1, section 19 of the Texas Constitution. See Tex. Const. art. I,
§ 19; Tex. Gov’t Code Ann. § 551.002 (West 2017). Importantly, Swanson did
not allege separate and distinct claims for violations of TOMA or the Texas
Constitution, rather she alleges that the Town committed violations of these
provisions in support of her standalone claim for a declaratory judgment.
In support of these claims, Swanson alleged that on February 12, 2014,
the Council wrongfully deliberated in executive session about whether to
terminate her employment, that the decision to do so was also made during
executive session that day, and that no agenda had been posted before the
meeting apprising the public of the purpose of the executive session. Swanson
also alleged that for the February 27, 2014 special council meeting at which the
Council terminated her employment, the Town did not post an agenda before the
meeting sufficiently apprising the public that action might be taken to remove her
from her job. Swanson further asserted that the Town violated article I, section
19 of the Texas Constitution because she was not afforded the opportunity to
3
confront her accusers or otherwise address the Council before the deliberation in
which the decision was made to terminate her employment and because no
procedure was adopted or employed for her to protest or appeal the Council’s
decision. Additionally, Swanson added allegations that the Town fired her in
retaliation for reporting not only the destruction of the meeting tape, but also for
reporting that the mayor, Cindy Spencer, had taken recordings of town meetings
home with her and had at one point intended to call Swanson into a meeting
under false pretenses to ask for Swanson’s resignation.
Before the trial court ruled on the Town’s plea to the jurisdiction—rather
than amend its plea or file another such plea on the claims in Swanson’s
amended petition—the Town filed a motion for traditional summary judgment and
a separate motion for no-evidence summary judgment that challenged the trial
court’s jurisdiction of Swanson’s additional claims. In its no-evidence motion, the
Town asserted that it was entitled to governmental immunity on Swanson’s
declaratory judgment claims because she had no evidence that she was entitled
to declaratory relief. In its traditional motion, the Town asserted that it was
entitled to summary judgment on Swanson’s declaratory judgment claims
because the claims did not fall within the scope of permissible declaratory
judgment actions against governmental entities.
In her summary judgment response, Swanson argued that the Town was
not entitled to a no-evidence summary judgment because it bore the burden of
proof on establishing governmental immunity. She also challenged the Town’s
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traditional grounds, arguing that genuine issues of material fact precluded
summary judgment.
The trial court granted the Town’s plea to the jurisdiction as to Swanson’s
original claims and dismissed Swanson’s Whistleblower Act and Sabine Pilot
claims. The trial court denied the Town’s summary judgment motions. The
Town then filed this interlocutory appeal challenging the denial of its motions for
summary judgment.
II. Challenges to the Trial Court’s Jurisdiction
A plaintiff has the burden of alleging facts that affirmatively demonstrate
that the trial court has subject-matter jurisdiction. Heckman v. Williamson Cty.,
369 S.W.3d 137, 150 (Tex. 2012). Because a governmental unit has immunity
from suit, a plaintiff asserting a claim against a governmental unit must allege
facts that affirmatively demonstrate that the legislature has waived immunity for
the claims brought. Univ. of Tex. at Arlington v. Williams, 455 S.W.3d 640,
643 (Tex. App.—Fort Worth 2013), aff’d, 459 S.W.3d 48 (Tex. 2015).
The absence of subject-matter jurisdiction may be raised by a plea to the
jurisdiction or by a motion for summary judgment. Bland I.S.D. v. Blue,
34 S.W.3d 547, 554 (Tex. 2000). A motion or plea asserting governmental
immunity involves a question of law that we review de novo. Harris County
Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009).
When a governmental entity challenges the plaintiff’s pleadings for failing
to demonstrate jurisdiction, the court construes the pleadings liberally, taking all
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factual assertions as true and looking to the plaintiff’s intent. Heckman,
369 S.W.3d at 150. If the plaintiff’s pleadings affirmatively negate the existence
of jurisdiction, we must grant the plea to the jurisdiction. 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 plaintiffs
should be afforded the opportunity to amend. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004).
If a defendant governmental entity challenges the existence of
jurisdictional facts, a court must also consider the relevant evidence necessary to
resolve the jurisdictional issues raised. Heckman, 369 S.W.3d at 150; Miranda,
133 S.W.3d at 228. The governmental entity has the burden to assert and
support with evidence that the trial court lacks subject matter jurisdiction.
Heckman, 369 S.W.3d at 150; Miranda, 133 S.W.3d at 228. We must grant the
jurisdictional challenge if the governmental entity presents undisputed evidence
that negates the existence of the court’s jurisdiction. Heckman, 369 S.W.3d at
150.
III. Swanson Did Not Raise Distinct TOMA Claims.
In its first issue, the Town contends that the trial court had no jurisdiction
over Swanson’s TOMA claims. However, the record before us is clear that in the
trial court, the Town raised traditional summary judgment grounds asserting its
entitlement to judgment on the merits of Swanson’s claims, rather than on
jurisdictional, government immunity grounds. See Cullum v. White, 399 S.W.3d
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173, 188 (Tex. App.—San Antonio 2011, pet. denied) (noting appellate courts
generally do not have jurisdiction to hear the denial of a motion for summary
judgment). Further, while Swanson asserted grounds for declaratory relief based
on TOMA violations, she did not assert a separate, standalone claim under
TOMA. Without a distinct TOMA claim being alleged by Swanson against the
Town, we must overrule the Town’s first issue. See Valley Baptist Med. Ctr. v.
Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (“[C]ourts have no jurisdiction to
issue advisory opinions.”); accord Princeton Univ. v. Schmid, 455 U.S. 100, 102,
102 S. Ct. 867, 869 (1982) (“We do not sit to decide hypothetical issues or to
give advisory opinions”). However, to the extent the Town’s arguments apply to
its challenges to Swanson’s claim for declaratory relief based on the Town’s
alleged TOMA violations, we consider them below under our analysis of the
Town’s third issue.
IV. Swanson’s Declaratory Judgment Claims
In its third issue, the Town makes several arguments for why the trial court
should have dismissed Swanson’s declaratory judgment claims. First, the Town
contends that Swanson does not qualify for relief under the Uniform Declaratory
Judgments Act (UDJA). More specifically, the Town contends that: (a) Swanson
is not a person interested under a deed, will, written contract, or other writings
constituting a contract; (b) Swanson is not a person whose rights, status, or other
legal relations are affected by a statute, municipal ordinance, contract, or
franchise, and she produced no evidence that she fits in that category in
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response to its no-evidence and traditional summary judgment motions; and
(c) Swanson does not seek a determination on any question of construction or
validity of an instrument, statute, ordinance, contract, or franchise. Second, the
Town argues that to the extent Swanson seeks a declaration of rights under a
statute, the UDJA does not waive the Town’s governmental immunity for such a
claim.
In the Town’s second issue, it asserts that Swanson presented no viable
claim for relief under the “due course” provision in article I, section 19 of the
Texas Constitution. It argues that: (a) Swanson has no evidence that she was
denied any right to confront her accusers and address the Council before the
February 12, 2014 meeting; (b) she had no constitutional right to appeal the
Council’s termination decision; and (c) she was provided with notice and an
opportunity to be heard. However, Swanson raised these constitutional
violations only as a basis for relief under the UDJA. As with the Town’s alleged
TOMA violations, Swanson simply did not allege separate, standalone
constitutional claims against the Town in her lawsuit. We therefore overrule the
Town’s second issue but consider the Town’s arguments challenging the viability
of her constitutional claims as part of its third issue.
For the reasons set forth herein, we conclude that the Town has immunity
for some but not all of the declaratory relief requested by Swanson.
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A. The Trial Court Did Not Err by Denying the Town’s No-Evidence
Summary Judgment Motion on Swanson’s UDJA claims.
The Town argues that, because Swanson provided no evidence in
response to its no-evidence summary judgment motion, the trial court erred by
denying it a no-evidence summary judgment as to Swanson’s declaratory
judgment claims. This argument, however, severely mistakes Swanson’s burden
in the trial court. Before Swanson had any burden to produce jurisdictional
evidence, the Town first had to produce evidence negating jurisdiction. See
Miranda, 133 S.W.3d at 228 (stating that for pleas to the jurisdiction challenging
the existence of jurisdictional facts, requiring the state to meet the summary
judgment standard of proof protects plaintiffs “from having to ‘put on their case
simply to establish jurisdiction’” and that a plaintiff must come forward with
evidence to raise a fact question regarding the jurisdictional issue only “after the
state asserts and supports with evidence that the trial court lacks subject matter
jurisdiction” (citation omitted)); see also Mission Consol. I.S.D. v. Garcia,
372 S.W.3d 629, 635 (Tex. 2012) (reiterating that when challenging the existence
of jurisdictional facts, the defendant government entity carries the burden to meet
the summary judgment proof standard for its assertion that the trial court lacks
jurisdiction); City of El Paso v. Collins, 483 S.W.3d 742, 755–56 (Tex. App.—El
Paso 2016, no pet.) (holding that a defendant government entity “cannot simply
deny the existence of jurisdictional facts and force the plaintiffs to raise a
fact issue” and that before a plaintiff has any burden to come forward with
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jurisdictional evidence, the government entity must first come forward with
sufficient evidence to negate jurisdiction) (emphasis added); City of Austin v.
Rangel, 184 S.W.3d 377, 382 (Tex. App.—Austin 2006, no pet.) (same).
Because a governmental entity, like the Town, has the burden to negate
the existence of jurisdictional facts before a plaintiff has any burden to produce
evidence raising a fact question on jurisdiction, no-evidence summary judgment
motions may not be used by a governmental entity as a vehicle to defeat
jurisdiction or otherwise circumvent its burden to disprove jurisdiction. See
Arthur v. Uvalde Cty. Appr. Dist., No. 04-14-00533-CV, 2015 WL 2405343, at
*9 (Tex. App.—San Antonio May 20, 2015) (mem. op.) (“Permitting UCAD to
challenge subject matter jurisdiction in a no-evidence motion for summary
judgment improperly shifts the jurisdictional evidentiary burdens.”); Thornton v.
Ne. Harris Cty. MUD, 447 S.W.3d 23, 40 (Tex. App.—Houston [14th Dist.] 2014,
pet. denied) (“Permitting MUD to challenge subject matter jurisdiction in a no-
evidence motion for summary judgment improperly shifts the jurisdictional
evidentiary burdens—effectively requiring the Thorntons to fully marshal their
evidence simply to establish jurisdiction and eliminating any burden on MUD as a
governmental entity to disprove jurisdiction.”); cf. Green Tree Servicing, LLC v.
Woods, 388 S.W.3d 785, 793–94 (Tex. App.—Houston [1st Dist.] 2012, no pet.)
(holding that the defendant—not a governmental entity—could not challenge
standing through a no-evidence motion because such a procedure would “allow
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defendants an end run around the safeguards established by the Texas Supreme
Court”).
In reaching this holding, we recognize that this court has affirmed the
granting of no-evidence summary judgment for a governmental entity on
immunity grounds. City of Haltom City v. Aurell, 380 S.W.3d 839 (Tex. App.—
Fort Worth 2012, no pet.). That opinion is easily distinguishable, however. In
that opinion, the plaintiff did not question whether a no-evidence motion is a
proper vehicle for raising immunity, and we did not consider the issue. Given the
clear language and direction from the Texas Supreme Court provided in Miranda
and Mission Consolidated, we agree with our sister courts of appeals that a
government entity may not challenge subject matter jurisdiction in a no-evidence
summary judgment motion because doing so improperly shifts the initial
jurisdictional evidentiary burden to the plaintiff. See Thornton, 447 S.W.3d at 40.
We disapprove of our opinion in Aurell to the extent it reads otherwise.
Elsewhere in its brief, the Town cites State v. Lueck, 290 S.W.3d 876,
881–84 (Tex. 2009), for the proposition that Swanson, not the Town, had the
initial burden to come forward with evidence to support jurisdiction. Lueck does
not contradict our holding that the Town had the initial burden to produce
evidence negating jurisdiction. See Lueck, 290 S.W.3d at 881–84 (addressing
pleading requirements with respect to jurisdiction); see also Mission Consol.
I.S.D., 372 S.W.3d at 637 (applying Lueck to a claim under the Texas
Commission on Human Rights Act and stating that “[w]hile a plaintiff must plead
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the elements of her statutory cause of action—here the basic facts that make up
the prima facie case— . . . , she will only be required to submit evidence if the
defendant presents evidence negating one of those basic facts” (emphasis
added)). We therefore disagree with the Town that Lueck required Swanson to
marshal evidence showing jurisdiction before the Town met its own evidentiary
burden. Simply put, a governmental entity cannot file a no-evidence motion for
summary judgment on governmental immunity grounds to altogether avoid the
jurisdictional burden that it would have to demonstrate when asserting a plea to
the jurisdiction. To hold otherwise would effectively turn Texas governmental
immunity jurisprudence on its head.
Therefore, the trial court did not err by denying the Town’s no-evidence
summary judgment motion challenging the court’s subject-matter jurisdiction to
Swanson’s declaratory judgment claims. We overrule this part of the Town’s
third issue.
B. TOMA Waives Immunity for Some of Swanson’s UDJA Claims.
1. TOMA Authorizes Swanson to Seek a Declaration of Rights,
Status, or Other Legal Relations.
The Town argues that it is immune from Swanson’s UDJA claims because
she does not fit within the category of persons entitled to relief under section
37.004(a) of the UDJA. See Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (West
2015). We disagree. Under Swanson’s pleadings, she easily qualifies as an
interested person seeking to stop, prevent, and reverse violations of TOMA. See
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Tex. Gov’t Code Ann. § 551.142 (West 2017); City of San Antonio v. Fourth
Court of Appeals, 820 S.W.2d 762, 765 (Tex. 1991) (stating that the intended
beneficiaries of TOMA are members of the interested public); Acker v. Tex.
Water Comm’n, 790 S.W.2d 299, 300 (Tex. 1990) (stating that under TOMA,
citizens “are entitled not only to know what government decides but to observe
how and why every decision is reached”). She is therefore a person seeking to
obtain a declaration of rights, status, or other legal relations under a statute.
The Town next argues that the UDJA does not waive governmental
immunity when a plaintiff, like Swanson, seeks a declaration of her rights under a
statute or other law. On this point, the Town is correct. See Tex. Dep’t of
Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011). The UDJA contains a
limited waiver of immunity for challenges to the validity of an ordinance or statute.
See Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 633–
35 (Tex. 2010). The UDJA does not, however, provide a general waiver of
immunity, and “sovereign 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.” Tex. Parks & Wildlife Dep’t v.
Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011). Consequently, a plaintiff who
sues a governmental entity under the UDJA must allege a waiver of immunity
from some other source. See id. In this case, TOMA provides that waiver, at
least for some of what Swanson seeks under the UDJA.
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TOMA provides a limited waiver of immunity for an “interested person” to
“bring an action by mandamus or injunction to stop, prevent, or reverse a
violation or threatened violation of this chapter by members of a governmental
body,” and it allows for the recovery of litigation costs and reasonable attorney’s
fees. Tex. Gov’t Code Ann. § 551.142. TOMA further provides that “[a]n action
taken by a governmental body in violation of this chapter is voidable.”
Id. § 551.141 (West 2017). The purpose of this provision is to allow courts to
declare void actions taken in violation of TOMA.1 Ferris v. Tex. Bd. of
Chiropractic Exam’rs, 808 S.W.2d 514, 517 (Tex. App.—Austin 1991, writ
denied); see also City of Fort Worth v. Groves, 746 S.W.2d 907, 912 (Tex.
App.—Fort Worth 1988, no writ) (observing that TOMA originally provided only
for injunctive and mandamus relief, but “[i]n the eyes of the courts and the
legislature that was not sufficient,” and by legislative amendment, “[a]ccess may
now be had to the courts to set aside actions taken in violation of” TOMA); Love
Terminal Partners v. City of Dall., 256 S.W.3d 893, 897 (Tex. App.—Dallas 2008,
no pet.) (stating that if conduct is voidable, “the act is valid until adjudicated and
declared void”).
1
We disagree in part with the recent holding of the Austin court of appeals
that TOMA does not waive immunity for declaratory relief. See City of New
Braunfels v. Carowest Land, Ltd., No. 03-16-00249-CV, 2017 WL 2857142, at
*5 (Tex. App.—Austin June 29, 2017, no pet.). Rather, although TOMA does not
broadly waive immunity for all declaratory judgment actions, it does waive
immunity for a declaration that an action taken in violation of TOMA is void. See
Tex. Gov’t Code Ann. § 551.141.
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Here, Swanson seeks a declaration that the Town violated TOMA in a
number of specific ways when terminating her employment and that the
termination was void under TOMA and seeks injunctive relief relating to making
available to the public agendas and meeting recordings for past and future Town
meetings, back pay, and attorney’s fees. Because TOMA waives a
governmental entity’s immunity for injunctive relief, for a declaration that the
entity’s action is void for violating TOMA, and for attorney’s fees and costs for a
plaintiff who prevails in an action based on TOMA, the Town has no immunity for
Swanson’s claims seeking such relief. See Tex. Gov’t Code Ann. §§ 551.141,
551.142; see also Tex. Civ. Prac. & Rem. Code Ann. § 37.011 (West 2015)
(authorizing further relief based on a declaratory judgment when necessary or
proper); Tex. Dep’t of Pub. Safety v. Moore, 985 S.W.2d 149, 156 (Tex. App.—
Austin 1998, no pet.) (noting that the UDJA allows for injunctive relief ancillary to
a declaration of rights). As a result, we overrule the Town’s third issue as to
these claims.
For the remaining requested declaratory relief sought by Swanson—that
the Town violated TOMA in certain specific ways—although TOMA waives
immunity for a court to render injunctive or mandamus relief for violations of its
provisions, it does not provide a waiver for the types of declarations sought by
Swanson. See Carowest, 2017 WL 2857142, at *5. Accordingly, the trial court
should have dismissed Swanson’s TOMA-based UDJA claims for lack of
jurisdiction to the extent she seeks relief beyond injunctive or mandamus relief
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and a declaration that the Town’s termination of her employment was void.2 We
accordingly sustain the Town’s third issue as to these claims.
As for Swanson’s request for back pay, she seeks pay she would have
received had her employment not been terminated and does not seek pay for
work she actually performed. The back pay she seeks therefore constitutes
money damages. TOMA does not waive immunity for such a claim. See City of
Round Rock v. Whiteaker, 241 S.W.3d 609, 634 (Tex. App.—Austin 2007, pet.
denied); see also City of El Paso v. Heinrich, 284 S.W.3d 366, 374 (Tex. 2009)
(“[R]etrospective monetary claims are generally barred by immunity.”). The trial
court therefore had no jurisdiction to render a declaratory judgment that the Town
owed Swanson back pay or to render a judgment ordering the Town to pay back
pay. See Sawyer Tr., 354 S.W.3d at 388 (“[S]overeign immunity will bar an
otherwise proper DJA claim that has the effect of establishing a right to relief
against the State for which the Legislature has not waived sovereign immunity.”).
We sustain the Town’s third issue as to Swanson’s claim for back pay.
2. The Town Did Not Negate Viability of Swanson’s TOMA-Based
UDJA Claims.
If the Town’s jurisdictional evidence negated the existence of jurisdictional
facts for Swanson’s UDJA claims that are based on alleged TOMA violations,
then the trial court has no jurisdiction over those claims. See Heckman,
2
Swanson also sought declaratory relief related to an ultra vires claim
against the Town’s former mayor, but those claims are not before this court in
this appeal.
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369 S.W.3d at 150. Accordingly, the Town’s arguments under its first issue are
relevant to whether it negated the existence of viable UDJA claims based on
TOMA violations, and we therefore consider those arguments here.
The Town contends that: (1) Swanson produced no evidence that the
Council violated TOMA by improperly deliberating and making decisions about
her employment on or before February 12, 2014; (2) the February 27,
2014 meeting complied with TOMA; and (3) the validity of the February 27,
2014 meeting renders Swanson’s complaints about prior meetings irrelevant.
a. The Town’s contentions regarding the February 12,
2014 meeting did not shift the burden to Swanson to
produce jurisdictional evidence.
As part of her request for declaratory relief, Swanson alleged that the
Council deliberated and decided to terminate her employment on or before
February 12, 2014, at a meeting that violated TOMA. The Town argues that
Swanson has no evidence that the Council violated TOMA on or before that
meeting. The Town’s argument under this part of its issue is based entirely on
what it characterizes as an inadequate response from Swanson to its no-
evidence summary judgment motion. We have already held that Swanson had
no burden to produce evidence on the issue until the Town met its burden as to
jurisdictional evidence.
Therefore, reviewing the evidence submitted by the Town, we hold the
Town did not conclusively negate jurisdiction. The Town’s jurisdictional evidence
included: (1) the transcript from Swanson’s October 14, 2014 deposition;
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(2) Swanson’s responses to the Town’s interrogatories; (3) affidavits of the Town
mayor and of Town aldermen; (4) the notices and minutes from the Council
meetings of February 18, 24, and 27, 2014; (5) Swanson’s performance review
provided to her at the February 24 meeting; (6) the transcript from Swanson’s
August 24, 2015 deposition; and (7) a letter from Swanson’s attorney to the
Town’s attorney responding to Swanson’s performance review. This evidence
did not establish as a matter of law that the Town did not deliberate about and
decide to terminate Swanson’s employment on or before February 12, 2014.
Swanson’s depositions, interrogatory responses, and her attorney’s letter did not
concede that no such meetings took place. Moreover, the minutes and notices
from the February 18, 24, and 27 meetings did not mention the existence or
absence of earlier meetings addressing Swanson’s employment, and neither did
the aldermen’s affidavits.
Nor has the Town shown that Swanson cannot show jurisdiction even if
given the opportunity to do so. See Rusk State Hosp. v. Black, 392 S.W.3d 88,
95–96 (Tex. 2012) (requiring a governmental entity that raises jurisdiction for the
first time on appeal to show that (1) the record conclusively negates jurisdiction;
(2) the plaintiff had a full and fair opportunity in the trial court to develop the
record to show jurisdiction yet failed to do so; or (3) if the plaintiff did not have
such an opportunity, she cannot show jurisdiction even if the case is remanded to
the trial court and she is given such an opportunity). And because the Town did
not raise a jurisdictional challenge to the viability of Swanson’s TOMA-based
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claims in its traditional summary judgment motion, and because (as Swanson
pointed out in the trial court) it could not shift its burden to Swanson by way of a
no-evidence summary judgment motion, we cannot say that Swanson had a full
and fair opportunity in the trial court to develop the record to demonstrate the
court’s jurisdiction on these claims. See id. The trial court therefore correctly
declined to dismiss Swanson’s UDJA claims based on the February 12,
2014 meeting.
b. The Town’s February 27, 2014 meeting did not moot
Swanson’s TOMA complaints.
The Town further argues that the trial court had no jurisdiction over
Swanson’s claims because there is no justiciable controversy. The Town
contends that Swanson’s TOMA complaints about any meeting before its
February 27, 2014 special council meeting are irrelevant because it was at that
meeting that the Council deliberated and decided to terminate Swanson’s
employment. See City of Farmers Branch v. Ramos, 235 S.W.3d 462, 469 (Tex.
App.—Dallas 2007, no pet.) (noting that an issue is moot when one seeks a
judgment but no controversy exists or when one seeks a judgment that “cannot
have any practical legal effect on a then-existing controversy”). It argues that
because a city council may hold a valid meeting and authorize actions it had
authorized at a previous invalid meeting, the Council’s February 27th meeting
rendered Swanson’s TOMA complaints irrelevant even if its actions at its prior
meetings were invalid and in violation of the statute. See Dall. Cty. Flood Control
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Dist. No. 1 v. Cross, 815 S.W.2d 271, 283 (Tex. App.—Dallas 1991, writ denied)
(holding that a governmental body that has violated TOMA may meet again in a
TOMA-compliant meeting and reauthorize actions it previously authorized, but
ratification does not have retroactive effect).
The Town’s argument is, of course, based on its own conclusion that the
February 27th meeting complied with TOMA. However, Swanson alleged that
that meeting did not comply with TOMA, and we hold below that the jurisdictional
evidence submitted by the Town did not negate the validity of Swanson’s claim.
Further, whether the February 27, 2014 council meeting complied with
TOMA is irrelevant to some of the relief Swanson sought because she sought
more than reinstatement in her suit. For example, based on the Town’s alleged
violations of TOMA, she requested that the trial court require the Town to “make
available to the public the certified agenda or tape of any part of a meeting that
was required to be open under” TOMA and “[a] permanent injunction requiring
contemporaneous recording of all deliberations of the . . . council and
subcommittees, with approval of the minutes of such meetings by the governing
body during a regularly-scheduled meeting for which an agenda item has been
timely posted.” Even if the February 27th meeting cured any previous violation of
TOMA the Town committed in deliberating and deciding about Swanson’s
employment, it did not render all her claims moot. See Ramos, 235 S.W.3d at
469–70 (“‘Our citizens are entitled to more than a result. They are entitled not
only to know what government decides but to observe how and why every
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decision is reached.’” (quoting Acker v. Tex. Water Comm’n, 790 S.W.2d 299,
300 (Tex. 1990)). A justiciable controversy remains.
c. The Town failed to establish that its February 27,
2014 meeting complied with TOMA.
The Town also asserts that its February 27, 2014 meeting and its notice of
the meeting complied with TOMA and that, because Swanson cannot show a
violation of TOMA for that meeting, the trial court did not have jurisdiction over a
claim based on a TOMA violation as to that meeting. See Lueck, 290 S.W.3d at
883 (holding that because the Whistleblower Act waives immunity only for
violations of the Act, the elements of a claim under the Act may be considered to
determine both jurisdiction and liability).
In a deposition transcript the Town included with its summary judgment
motion, Swanson testified that at the February 27th meeting she objected to the
Town’s convening in closed session to discuss her employment. The Town also
included a copy of the minutes from that meeting, which show that the Town met
in closed session to discuss Swanson’s employment. The minutes do not reflect
an objection by Swanson, but neither do they state that no objection was made.
Thus, the Town’s own summary judgment evidence raises a genuine issue of
material fact about whether the Town violated TOMA at the February 27 meeting.
See Tex. Gov’t Code Ann. § 551.074 (West 2017) (prohibiting a governmental
body from conducting a closed meeting when deliberating about the dismissal of
a public employee if the employee requests an open meeting).
21
We overrule the Town’s third issue as to Swanson’s TOMA-based UDJA
claims seeking injunctive relief, declarations that actions taken at Town meetings
were void for violating TOMA, and attorney’s fees and costs authorized by
TOMA. We sustain the Town’s third issue as to Swanson’s claims for other
declarations arising from TOMA violations and for her claim for back pay.
C. Swanson Did Not Allege Viable Constitution-Based UDJA Claims.
Swanson pled for declarations that the Town violated her rights under
article I, section 19 of the Texas Constitution because (1) she was not given an
opportunity “to confront her accusers or otherwise address the [C]ouncil prior to
the deliberation in which the decision was made to involuntarily terminate [her]
employment and seek her removal as town secretary on or before February 12,
2014” and (2) “[n]o procedure was adopted or employed for Plaintiff to protest the
decision to terminate her employment and seek her removal from office,
including the opportunity to appeal.” Even assuming that the Town is the proper
defendant for Swanson’s due process claims,3 the trial court does not have
jurisdiction over them.
“[T]he State has no power to commit acts contrary to the guarantees found
in the Bill of Rights,” and cities are not immune from suits asserting state
3
But see Brantley v. Tex. Youth Comm’n, 365 S.W.3d 89, 105 (Tex. App.—
Austin 2011, no pet.) (stating that any claim by former state agency employees
for equitable relief from a constitutional violation would be barred by sovereign
immunity to the extent that the employees purported to assert it against the state
agency rather than the agency’s executive director).
22
constitutional violations when the remedy sought is equitable relief. City of Fort
Worth v. Jacobs, 382 S.W.3d 597, 600 (Tex. App.—Fort Worth 2012, pet.
dism’d). Thus, “[g]overnmental immunity does not shield a governmental entity
from a suit for declaratory relief based on alleged constitutional violations.” City
of Arlington v. Randall, 301 S.W.3d 896, 908 (Tex. App.—Fort Worth 2009, pet.
denied), disapproved of on other grounds by Tex. Dep’t of Aging & Disability
Servs. v. Cannon, 453 S.W.3d 411 (Tex. 2015); see also City of Beaumont v.
Bouillion, 896 S.W.2d 143, 149 (Tex. 1995) (“[S]uits for equitable remedies for
violation of constitutional rights are not prohibited.”); Chisholm Trail SUD
Stakeholders Grp. v. Chisholm Trail Special Util. Dist., No. 03-16-00214-CV,
2017 WL 2062258, at *6 (Tex. App.—Austin May 11, 2017, pet. denied) (mem.
op.).
However, “[a] claimant seeking a declaratory action must already have a
cause of action at common law or under some statutory or constitutional
provision.” Randall, 301 S.W.3d at 908; see also Chisolm Trail,
2017 WL 2062258, at *6 (noting that for the trial court to have jurisdiction over a
constitutional claim, “a plaintiff must actually plead a valid constitutional
violation”). Unless Swanson pled facts demonstrating a legitimate property or
liberty interest in her employment, she did not allege a viable constitutional claim.
See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541–42, 105 S. Ct.
1487, 1493 (1985) (quotation marks and citation omitted) (providing that “the Due
Process Clause provides that certain substantive rights—life, liberty, and
23
property—cannot be deprived except pursuant to constitutionally adequate
procedures,” and that such a deprivation must therefore “be preceded by notice
and opportunity for hearing appropriate to the nature of the case”); Hamilton v.
City of Wake Vill., 593 F. Supp. 1294, 1296 (E.D. Tex. 1984); see also Univ. of
Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (observing
that while the Texas Constitution refers to “due course” rather than “due
process,” “we regard these terms as without meaningful distinction,” and “in
matters of procedural due process, we have traditionally followed contemporary
federal due process interpretations of procedural due process issues”).
1. Swanson’s Performance Review Did Not Affect Her Liberty
Interest.
“A public employer may unconstitutionally deprive its employee of a liberty
interest if it discharges him under stigmatizing circumstances without giving the
employee an opportunity to clear his name.” Caleb v. Carranza, 518 S.W.3d
537, 545 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (citing Arrington v. Cty. of
Dall., 970 F.2d 1441, 1447 (5th Cir. 1992)). To plead a claim based on the
deprivation of a constitutional right to a name-clearing hearing, “a plaintiff must
allege that [s]he was a public employee, that [s]he was discharged, that
stigmatizing charges were made against [her] in connection with [her] discharge,
that the charges were false, that the charges were made public, that [s]he
requested a name-clearing hearing, and that the hearing was denied.” Id. “[T]he
process due such an individual is merely a hearing providing a public forum or
24
opportunity to clear one’s name, not actual review of the decision to discharge
the employee.” Hughes v. City of Garland, 204 F.3d 223, 226 (5th Cir. 2000)
(citation and quotation marks omitted). “A party does not have a liberty interest
in [her] reputation . . . unless [s]he can establish that the governmental
employer’s charges against [her] rise to such a level that they create a ‘badge of
infamy’ which destroys the claimant’s ability to take advantage of other
employment opportunities.” Evans v. City of Dall., 861 F.2d 846, 851 (5th Cir.
1988); see also Hughes, 204 F.3d at 226 (“[A] constitutionally protected liberty
interest is implicated only if an employee is discharged in a manner that creates
a false and defamatory impression about him and thus stigmatizes him and
forecloses him from other employment opportunities.” (citation and internal
quotation marks omitted)); Phelan v. Tex. Tech Univ., No. 07-07-0171-CV,
2008 WL 190741, at *10 (Tex. App.—Amarillo Jan. 23, 2008, pet. denied) (mem.
op.) (“[A] liberty interest is affected only when a plaintiff is terminated for reasons
which were false, stigmatizing, and published, such that his standing in the
community is seriously damaged or stigmatized to the extent he cannot seek or
obtain other employment.”).
The aldermen’s complaints about Swanson’s performance were made
public at the February 24, 2014 special council meeting; at Swanson’s request,
the Council gave her a performance review in open session rather than in closed
session. The complaints about Swanson’s performance given at the special
council meeting were, essentially, that she was unable to perform the tasks
25
required of her, was lax in her performance of her duties, and was once rude to
the mayor. The charges against Swanson do not rise to the level that their
publication affected her liberty interest in her reputation. See, e.g., Evans,
861 F.2d at 851 & n.29 (holding that criticism of the plaintiff’s work indicated
excessive absenteeism, poor attitude, public criticism of his department, bad
language, and alienation of co-workers, not accusations of dishonesty or
immorality, and were not stigmatizing); see also O’Neill v. City of Auburn, 23 F.3d
685, 692 (2d Cir. 1994) (holding that statements about city’s superintendent of
public works that he had poor relationship with state agencies, that his work was
not up to par, and that his work was sloppy were not stigmatizing).
While the review did allege that Swanson once gave “an untruthful reply” to
a resident, read in context, the statement did not impugn Swanson’s character for
honesty. Rather, it alleged that Swanson failed to follow correct procedure and
was lax in performing her duties. The review stated that the resident had
inquired about his request for an assigned address for a lot and was told by
Swanson that she was waiting for a letter on the matter from the mayor. The
review stated that “[p]reviously, in the same situation, the letter was written by
[Swanson] and given to the Mayor for a signature. Procedure was known, but
not followed.” The allegation did not make the kind of accusation of dishonesty
that creates stigma. Compare Huffstutler v. Bergland, 607 F.2d 1090, 1092 (5th
Cir. 1979) (noting that the plaintiff’s honesty was rated as “unsatisfactory” in a
performance review but that, in the context of the review, in which the plaintiff
26
also received unsatisfactory ratings for dependability, productivity, quality of
work, professional interest, attendance, and punctuality, and in which the
reviewer stated that the plaintiff would only work when watched, the district
court’s conclusion that the unsatisfactory rating for honesty was not stigmatizing
was not clearly erroneous because it did not accuse the plaintiff of property theft
or constitute a “badge of infamy”), with Pasour v. Phila. Hous. Auth., No. 13–
2258, 2013 WL 4014514, at *1, *4 (E.D. Pa. Aug. 7, 2013) (holding that false
statements that agency employee, who was responsible for providing advice to
his supervisors regarding labor and employment matters, had engaged in an
unlawful conspiracy to conceal sexual harassment charges, were stigmatizing
because they called into question the employee’s reputation and integrity as an
employee and threatened his future employment), Holmes v. Town of East Lyme,
866 F. Supp. 2d 108, 126 (D. Conn. 2012) (statements accusing employee of
theft of services “directly addressed [the employee’s] reputation for honesty and
morality” and were stigmatizing), and Willbanks v. Smith Cty., 661 F. Supp. 212,
215, 216 (E.D. Tex. 1987) (holding that statements about deputy sheriff falsely
accusing him of stealing saddles and cattle were stigmatizing).
Because the allegations about Swanson’s performance made in
connection with her termination were not stigmatizing, her termination did not
affect her liberty interest. See Caleb, 518 S.W.3d at 545. Accordingly, Swanson
has no due process claim based on a deprivation of liberty, and the trial court
27
had no jurisdiction to consider a declaratory judgment claim based on such a
ground.
2. Swanson Had No Property Interest in Her Employment.
A constitutionally-protected property interest is “an individual entitlement
grounded in state law, which cannot be removed except ‘for cause’.” Grounds v.
Tolar I.S.D., 856 S.W.2d 417, 418 (Tex. 1993) (citation and quotation marks
omitted). “To state a claim based on the deprivation of a property interest in [her]
employment, a plaintiff must show that . . . [she] has a protected property interest
in [her] employment,” and “[a]n employee has a property interest in [her]
employment only when [s]he has a legitimate right to continued employment.”
See Martinez v. City of Dall., No. 3:16-CV-2890-M, 2017 WL 4298134, at
*2 (N.D. Tex. Sept. 28, 2017); see also Moulton v. City of Beaumont, 991 F.2d
227, 230 (5th Cir. 1993) (“To succeed with a claim based on . . . due process in
the public employment context, the plaintiff must show two things: (1) that he had
a property interest/right in his employment, and (2) that the public employer’s
termination of that interest was arbitrary or capricious.”). Stated otherwise, to
have a property interest in public employment, Swanson must have a legitimate
claim of entitlement to continued employment. Tex. A & M Univ. Sys. v.
Luxemburg, 93 S.W.3d 410, 422 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied).
Although General George S. Patton, Jr. famously quipped that a “civil
servant is sometimes like a broken cannon—it won’t work and you can’t fire it”
28
(GREAT QUOTES FROM GREAT LEADERS 124 (compiled by Peggy Anderson,
1990)), in Texas, “unless a specific agreement to the contrary dictates otherwise,
a[] [public] employee can be released for good reason, bad reason, or no
reason.” Jordan v. Jefferson Cty., 153 S.W.3d 670, 674 (Tex. App.—Amarillo
2004, pet. denied). Swanson, however, did not allege the existence of an
agreement limiting the Town’s ability to terminate her employment. She did not
allege that she had an employment contract with the Town or that she had an
understanding with the Town that she would be fired only for cause. See, e.g.,
Perry v. Sindermann, 408 U.S. 593, 599–600, 92 S. Ct. 2694, 2699 (1972)
(holding that though the plaintiff college professor had no formal tenure, the
plaintiff had created a fact issue about whether he had tenure under a de facto
tenure program).
Further, the jurisdictional evidence negates the existence of any such
property interest. First, while the Town’s employee handbook sets out
procedures the Council follows before terminating an employee—if an employee
is facing termination, the Council will give the employee the reasons for
termination, and the employee may, within forty-eight hours, respond to the
termination effort and challenge the grounds for termination—the handbook
specifies that its employees are at-will. See id., 92 S. Ct. at 2699 (holding that
when a handbook specifies that employment is at-will, the handbook negates any
implication that the employment is anything but at-will). The handbook therefore
did not give Swanson a property interest in continued employment.
29
Second, under section 22.077 of the local government code, a city
secretary has no right to continued employment. Under section 22.077(a), a
governing body must provide a city secretary notice and a hearing before
terminating her employment, but only if the termination is for incompetency,
corruption, misconduct, or malfeasance. See Tex. Loc. Gov’t Code Ann.
§ 22.077(a). Unless terminating her employment on those grounds, the Council
could remove Swanson under section 22.077(b) by vote of the governing body at
any time without notice or an opportunity to be heard. See id. § 22.077(b);
Hamilton, 593 F. Supp. at 1296–97 (construing predecessor to section
22.077 and observing that if a municipal officer is charged with incompetency,
misconduct, corruption, or malfeasance, the officer must be given due notice and
an opportunity to be heard before removing the officer, but “[o]therwise—and this
is clear—a city officer can be discharged at any time for ‘a want of confidence’ by
a two-thirds vote of a city council”). The local government code thus does not
give a city secretary the right to continued employment. See Tex. Loc. Gov’t
Code Ann. § 22.077 (allowing municipal officials’ employment to be terminated
and not restricting the grounds on which employment may be terminated).
Accordingly, even assuming that subsection (a), standing alone, would give a
municipal officer a property interest in continued employment, subsections (a)
and (b), construed together, make clear that a municipal officer fired for “no
confidence” has no such property interest. See McDonald v. City of Corinth, No.
4:94-CV-299, 1995 WL 908617, at *3 (E.D. Tex. Nov. 28, 1995) (“[A]s a matter of
30
law . . . an employee subject to termination by a ‘no confidence’ vote has no
property interest in his position.”) (citation omitted); aff’d, 102 F.3d 152 (5th Cir.
1996); Hamilton, 593 F. Supp. at 1297 (holding that a municipal officer, who by
statute may be fired for no confidence without notice or a hearing, is an at-will
employee).
Finally, although TOMA gave Swanson the right to have her employment
discussed in an open meeting rather than in executive session, the TOMA notice
and meeting requirements do not give Swanson a right to a particular form of
notice or procedure before her employment may be terminated. TOMA
provisions are for the benefit of the public as a whole, not specifically for
conveying employment rights to public employees. See Hays Cty. Water
Planning P’ship v. Hays Cty., 41 S.W.3d 174, 178 (Tex. App.—Austin 2001, pet.
denied) (noting that TOMA was enacted “for the purpose of ‘assuring that the
public has the opportunity to be informed concerning the transactions of public
business’” (citation omitted)).
The Council here voted to remove Swanson on no-confidence grounds.
Swanson does not allege that she was fired for incompetence, misconduct,
corruption, or malfeasance, and the Town’s evidence shows she was not fired for
those reasons.4 Cf. Tex. Loc. Gov’t Code Ann. § 21.022 (West 2008) (providing
4
We do not address whether a municipality may fire a municipal officer
without notice and a hearing in retaliation for reporting a violation of law but
defeat the officer’s retaliation suit by claiming that the firing was due to “no
confidence.” See, e.g., Flores v. Town of Combes, No. 13-04-616-CV,
31
that, for purposes of judicial removal of a member of a municipality’s governing
body, “incompetency” means “(A) gross ignorance of official duties; (B) gross
carelessness in the discharge of official duties; or (C) inability or unfitness to
promptly and properly discharge official duties because of a serious mental or
physical defect that did not exist at the time of the officer’s election”). Even if we
were to accept Swanson’s allegation that the real reason for her firing was
retaliation, the Town did not violate a property right in firing her for the simple
reason that she has no such right.5 See Richards v. City of Weatherford, 145 F.
Supp. 2d 786, 790 (N.D. Tex.) (Mahon, J.), aff’d, 275 F.3d 46 (5th Cir. 2001)
(dismissing municipal judge’s due process claims in part because he “fail[ed] to
2006 WL 949960, at *2 (Tex. App.—Corpus Christi Apr. 13, 2006, no pet.) (mem.
op.) (holding, in suit by former police chief who alleged a retaliatory firing, that
town was not entitled to summary judgment on the merits because it had not
proven as a matter of law that it would have fired the chief for no confidence in an
absence of his reporting of alleged violations of the law). Swanson’s
Whistleblower Act and Sabine Pilot claims have already been dismissed, and
they are not before us.
5
As the Supreme Court aptly recognized over forty years ago regarding
employment decisions and alleged violations of the U.S. Constitution, courts are
not the appropriate forum in which to review the multitude of
personnel decisions that are made daily by public agencies. We
must accept the harsh fact that numerous individual mistakes are
inevitable in the day-to-day administration of our affairs. The United
States Constitution cannot feasibly be construed to require federal
judicial review for every such error . . . . The Due Process Clause of
the Fourteenth Amendment is not a guarantee against incorrect or
ill-advised personnel decisions.
Bishop v. Wood, 426 U.S. 341, 349–50, 96 S. Ct. 2074, 2080 (1976).
32
cite any Texas statute, ordinance, contract, or caselaw recognizing a protected
property interest”).
We sustain the Town’s third issue challenging the trial court’s jurisdiction
over Swanson’s constitution-based UDJA claims.
V. Swanson Did Not Allege a Viable Free Speech Claim.
The Town argues in its fourth issue that it is entitled to governmental
immunity from Swanson’s free speech claim under the Texas Constitution.
A. The Town Was Not Entitled to No-Evidence Summary Judgment on
Its Free Speech Claim.
The Town first argues that it was entitled to no-evidence summary
judgment on the free speech claim because the elements of Swanson’s claim are
jurisdictional facts and she presented no evidence of her claim in response to its
no-evidence motion. We overrule this part of the Town’s fourth issue. See
Thornton, 447 S.W.3d at 40.
B. The Town May Not Appeal from the Denial of Its Traditional Summary
Judgment Motion.
The Town next argues that it was entitled to traditional summary judgment
on the claim for two reasons: first, because it presented evidence that
Swanson’s speech was made pursuant to her official duties as town secretary
and second, as to Swanson’s request for back pay and attorney’s fees, because
the Texas Constitution does not create a private right of action for money
damages. The Town did not raise immunity as a ground for summary judgment
on Swanson’s free speech claim. Consequently, we may not review the trial
33
court’s denial of its motion as to the free speech claim in this interlocutory appeal.
Nevertheless, we must consider the jurisdictional arguments the Town makes
now on appeal. See Rusk State Hosp., 392 S.W.3d at 95.
C. Swanson Failed to Allege a Viable Free Speech Claim Outside of Her
Official Duties.
1. Public Employees Have Free Speech Rights.
The Texas Constitution authorizes suits against the government for
equitable or injunctive relief for constitutional violations. City of Hous. v.
Downstream Envtl., L.L.C., 444 S.W.3d 24, 38 (Tex. App.—Houston [1st Dist.]
2014, pet. denied) (citing Bouillion, 896 S.W.2d at 148–49). Swanson sought
reinstatement, and reinstatement of employment is an equitable remedy. See
Jacobs, 382 S.W.3d at 599. But, as stated above, “this limited waiver of
immunity exists only to the extent the plaintiff has pled a viable constitutional
claim.” Downstream Envtl., 444 S.W.3d at 38.
“[C]itizens do not surrender their First Amendment rights by accepting
public employment.” Lane v. Franks, 134 S. Ct. 2369, 2374 (2014). To the
contrary, “speech by public employees on subject matter related to their
employment holds special value precisely because those employees gain
knowledge of matters of public concern through their employment.” Id. at 2379.
A plaintiff has a viable constitutional free-speech retaliation claim when: “(1) they
suffered an adverse employment decision; (2) their ‘speech’ involved a matter of
public concern; (3) their interest in commenting on matters of public concern
34
outweighed their employer’s interest in promoting efficiency; and (4) their speech
motivated the adverse employment decision.” See Caleb, 518 S.W.3d at
544 (citing Beattie v. Madison Cty. Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001)).
“[W]hen public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their communications from
employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951,
1960 (2006); see also Caleb, 518 S.W.3d at 544. The extent to which a public
employee’s speech is protected by the First Amendment “depends on a careful
balance ‘between the interests of the (employee), as a citizen, in commenting
upon matters of public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its
employees.’” Lane, 134 S. Ct. at 2374 (citation omitted). The question is
“whether the speech at issue is itself ordinarily within the scope of an employee’s
duties, not whether it merely concerns those duties.” Id. at 2379.
Even if the speech at issue relates to the employee’s job duties, the
speech may in some cases still be considered citizen speech. “[W]hen a public
employee raises complaints or concerns up the chain of command at his
workplace about his job duties, that speech is undertaken in the course of
performing his job.” Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008). “If,
however, a public employee takes his job concerns to persons outside the work
place in addition to raising them up the chain of command at his workplace, then
35
those external communications are ordinarily not made as an employee, but as a
citizen.” Id.
2. Swanson’s Speech Regarding Town Records Was Employee
Speech, not Citizen Speech.
Here, Swanson pled that she reported three acts that she alleged were
violations of the law: (1) the mayor destroying the recording of the investment
committee meeting; (2) the mayor removing recordings of meetings from town
hall; and (3) the mayor intending to call Swanson to a meeting under false
pretenses to obtain her resignation. Swanson’s pleadings do not allege facts
addressing whether her speech was made in the course of her job duties. The
record, on the other hand, addresses the question with respect to the alleged
violations related to Town records and whether the reporting was citizen speech.
See Heckman, 369 S.W.3d at 150 (compelling the granting of a jurisdictional
challenge if the governmental entity presents undisputed evidence that negates
jurisdiction).
First, the record before us shows that the speech was within Swanson’s
job duties. When asked at her deposition if she thought she was doing her job to
tell the Town attorney and Council that the mayor had violated the law by asking
for meeting tapes to bring home, Swanson testified, “I think I was doing my job,
yes.” See Garcetti, 547 U.S. at 424, 126 S. Ct. at 1961 (pointing out that the
plaintiff conceded that his speech was made pursuant to his employment duties
and that the court therefore need not “articulate a comprehensive framework for
36
defining the scope of an employee’s duties in cases where there is room for
serious debate”). Swanson thus conceded that her job duties included reporting
perceived violations of laws related to town records by members of the governing
body.
Second, Swanson’s pleadings and the evidence show that her reports for
each of the alleged incidents were made up the chain of command at the Town,
not outside of it. Swanson alleged that she reported issues to individual
councilmembers,6 the Council as a whole, the mayor, and the Town attorney.
The Town’s aldermen and mayor, as members of the Town’s governing body,
were up the chain of command. See Tex. Loc. Gov’t Code Ann.
§ 22.031 (providing that the governing body of a Type-A municipality is made up
of the mayor and aldermen). The record does not clearly establish the Town
attorney’s position within the chain of command for Town employees. However,
Swanson testified in her deposition that she told the Town attorney because she
believed that he was someone who “should enforce any violations” and that he
“was the appropriate person for [her] to report a violation of the law” to, and she
hoped he would “make sure they were following the law.” She also testified that
the Town attorney was a person “who would give [her] direction as to the work
6
Although Swanson referred to “councilmembers” in her petition, the Town
is a Type-A municipality, and therefore its governing body is made up of
aldermen. See Tex. Loc. Gov’t Code Ann. § 22.031 (West 2008).
37
[she was] responsible for doing.” She thus made her reports to him as someone
who was up the chain of reporting responsibilities at the Town.
Third, while Swanson further testified that she also told an investigator with
the district attorney’s office, she could not remember ever telling anyone that she
had done so. The Town therefore could not have been retaliating against her for
making that report when it terminated her employment. See Caleb, 518 S.W.3d
at 544.
In summary, for the reports regarding Town records, Swanson’s pleadings
did not allege speech outside the chain of command or outside her job duties,
and the Town’s evidence established that her speech was within the chain of
command and concerned matters within her job duties. Because Swanson
therefore did not allege a viable First Amendment claim based on this employee
speech, the trial court had no jurisdiction over her claim.
3. Swanson’s Speech About the Mayor’s Planned Meeting Was
Not Entitled to First Amendment Protection.
Regarding Swanson’s claim that the mayor intended to call her into a
meeting under false pretenses, Swanson’s petition also fails to allege a viable
First Amendment claim. Swanson pled that she reported to the Town attorney
and to the Council that the mayor had intended to call her into a meeting under
false pretenses in order to ask her to resign. (Although Swanson’s petition does
not elaborate on this allegation, in her deposition she explained that she learned
about the mayor’s intention by reading the mayor’s email while searching for a
38
different email at the mayor’s request.) For this speech to be protected, it had to
relate to a matter of public concern. See Caleb, 518 S.W.3d at 544. Assuming
that by enacting local government code section 22.077, the legislature indicated
that the termination of employment of a city secretary is a matter of public
concern, it has given no such indication for the kind of circumstance alleged by
Swanson. Swanson’s pleadings did not allege any basis to consider the mayor’s
unacted-upon plan to meet with Swanson to ask for her resignation—even if she
did not intend to tell Swanson the true reason for the meeting ahead of time—to
be matter of public concern.
Because the pleadings and evidence negated any violation of Swanson’s
free speech rights, the trial court had no jurisdiction over any claim seeking
reinstatement or other equitable relief based on such speech. Accordingly, we
sustain the Town’s fourth issue.
VI. The Trial Court Could Not Grant the Town’s No-Evidence
Summary Judgment Motion on Immunity Grounds.
In the Town’s fifth and sixth issues, it argues that it properly identified the
grounds for its no-evidence motion for summary judgment and that governmental
immunity is properly raised in a no-evidence motion for summary judgment.
These issues address Swanson’s trial court objections to the Town’s no-evidence
summary judgment motion. As discussed herein because we hold that a
governmental entity may not raise immunity in a no-evidence summary judgment
motion, we overrule both issues.
39
VII. Conclusion
Having overruled the Town’s first, second, fifth, and sixth claims we affirm
the trial court’s order denying summary judgment for the Town on Swanson’s
UDJA claims seeking a declaration that the Town’s termination of her
employment was void under TOMA; injunctive relief relating to making agendas
and meeting recordings for past and future Town meetings available to the
public; and attorney’s fees for those claims based on TOMA violations. Having
sustained the Town’s third issue in part and the Town’s fourth issue, we dismiss
for lack of jurisdiction Swanson’s UDJA claims for back pay; her UDJA claims
based on violations of her rights under article I, section 9 of the Texas
Constitution, seeking both reinstatement and declaratory relief; and her free
speech claim.
/s/ Mark T. Pittman
MARK T. PITTMAN
JUSTICE
PANEL: SUDDERTH, CJ.; KERR and PITTMAN, JJ.
DELIVERED: January 18, 2018
40