City of Fort Worth, Texas v. Joel Fitzgerald, Sr.

REVERSE and RENDER and Opinion Filed February 8, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00327-CV
CITY OF FORT WORTH, TEXAS, Appellant
V.
JOEL FITZGERALD, SR., Appellee
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-08184
MEMORANDUM OPINION
Before Justices Carlyle, Garcia, and Rose1
Opinion by Justice Rose
Joel Fitzgerald, Sr. sued the City of Fort Worth after he was terminated as the
City’s Chief of Police, alleging among other claims that he was denied due process.
The trial court denied the City’s plea to the jurisdiction as to those claims, and the
City now appeals. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (permitting
interlocutory appeal of order denying governmental unit’s plea to the jurisdiction).
Concluding that the trial court lacked jurisdiction, we reverse the trial court’s order
1
The Hon. Jeff L. Rose, Justice, Assigned
and render judgment granting the City’s plea. Because the issues are settled in law,
we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
The City hired Fitzgerald as its police chief in 2015 and terminated his
employment on May 20, 2019. Fitzgerald filed suit for wrongful termination on June
6, 2019, alleging the City terminated him because he disclosed illegal practices by
the City involving access to the FBI’s Criminal Justice Information Systems (CJIS)
database. See City of Fort Worth v. Fitzgerald, No. 05-20-00112-CV, 2021 WL
486396, at *1 (Tex. App.—Dallas Feb. 10, 2021, pet. denied) (mem. op.). Among
other claims, Fitzgerald alleged that the City violated his liberty and property
interests under article I, § 19 of the Texas Constitution. These claims, pleaded in
Counts 3 and 4 of his operative petition,2 are at issue in this appeal. In a plea to the
jurisdiction, the City sought dismissal of Counts 3 and 4, contending that Fitzgerald
had not established a waiver of the City’s immunity for those claims.
In his response to the City’s plea, Fitzgerald argued he had “allege[d] a
facially valid constitutional claim that his due process rights were violated by the
City’s termination of his employment.” He argued that without notice, City Manager
David Cooke and Assistant City Manager Jay Chapa summoned him to a meeting
2
The City’s plea to the jurisdiction was directed to Fitzgerald’s third amended petition. After the
hearing on the City’s plea but before the trial court signed its order, Fitzgerald filed his fourth amended
petition. Because the plea, Fitzgerald’s response to it, and the trial court’s order cite the third amended
petition, we refer to that petition as “operative.” However, we note that the allegations at issue in this appeal
are identical in the two petitions.
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on May 20, 2019 and informed him that if he did not “resign and disavow his
investigations of CJIS violations . . . the City would terminate him immediately for
cause and designate his discharge as less than honorable.” He contended that he was
not allowed to retain a copy of the termination memo documenting the basis for his
termination and that his request to consult with his attorney was refused.
In his petition, Fitzgerald alleged that “[w]ithin minutes after the termination
meeting,” the City called a press conference to announce his termination. He pleaded
that in violation of statute and the Texas Constitution, Cooke released the
termination memo to the press. He also alleged that Cooke disparaged his character
to the press. In his affidavit in support of his response to the City’s plea to the
jurisdiction, Fitzgerald stated that “during the press conference, David Cooke openly
questioned my ‘judgment and leadership skills’ and questioned my loyalty.”
In the same affidavit, Fitzgerald stated that in a second press conference,
Cooke and Chapa “openly criticized and disparaged my leadership, tarnishing my
professional reputation in the policing industry.” Fitzgerald also stated that “Mayor
Betsy Price made a separate statement to national media outlets to announce that she
‘supported the termination’ and that the City ‘deserves a leader who will be present,
active, and engaged,’ implying that I possessed none of the aforementioned
qualities.”
In his response to the City’s plea to the jurisdiction, Fitzgerald summarized
the City’s allegations in the termination memo:
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The termination memo states that “[b]ecause of your increasing lack of
good judgment as the Police Chief of the City of Fort Worth, we have
lost confidence that you can be a trusted member of the City’s
Management team. You have a track record of making decisions that
are more focused on your best interest instead of the best interest of the
city, the organization or department as a whole.”
Fitzgerald then enumerated “specific examples identified in the letter of his alleged
‘lack of good judgment’”:
(1) Dr. Fitzgerald’s conduct during the May 12, 2019, Top Cop Dinner
and Award Ceremony;
(2) an alleged inability to “build relationships with other department
directors and employees”;
(3) Dr. Fitzgerald’s alleged “failure to . . . address concerns raised by
the CJIS auditor [which] created more problems and added unnecessary
stress and drama”;
(4) Dr. Fitzgerald’s conducting a pre-recorded media interview in an
attempt to improve [his] image;
(5) Dr. Fitzgerald introducing “the 48 Rules of Power” [sic, 48 Laws of
Power] “as a leadership primer to [his] employees”;
(6) “publicly accepting a position with another city”;
(7) “writing memos to [himself] alleging discrimination or unfairness
then refusing to move forward with investigations to address [his]
allegations”; and
(8) failing to manage the Police Department budget.
In Count 3 of his petition, Fitzgerald contends that “The City’s action
terminating Dr. Fitzgerald with a general rather than an honorable discharge,
releasing the termination memo to the press, and holding a press conference
disparaging his name, without giving him an opportunity for a public hearing to clear
his name under their City Charter, is termination under ‘stigmatizing circumstances’
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and an unconstitutional denial of due process in violation of Dr. Fitzgerald’s liberty
interest under Art. I, Section 19 of the Texas Constitution.” He alleges that he has
lost at least one valuable job reference, has been told by a recruiter that it is unlikely
he will find another job as a police chief due to the circumstances of his termination,
and has been “turned down for numerous job opportunities for which he is
overqualified.” He pleaded for “mandamus relief to require the City to hold a public
hearing under its charter to allow him to contest his termination and clear his name.”
In Count 4, Fitzgerald claims that his termination without a public hearing
was an unconstitutional violation of his property interest under Article 1, § 19 of the
Texas Constitution and a violation of local government code § 143.013. He pleads
that the City admitted his termination was not “an at-will employment decision” and
that under § 143.013, he should have been reinstated to the rank he held immediately
before his removal as police chief, namely, “Acting Police Chief.”
The trial court heard the City’s plea on March 11, 2022. By written order of
April 7, 2022, the trial court denied the plea “as to Plaintiff’s causes of action for
unconstitutional deprivation of liberty interest and property interest in Counts 3 and
4 of Plaintiff’s Third Amended Petition.” This appeal followed.
ISSUES AND STANDARDS OF REVIEW
In two issues, the City contends the trial court erred by denying its plea to the
jurisdiction because Fitzgerald “did not and could not plead facts” sufficient to raise
a fact issue that the termination of his employment denied him due process or due
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course of law based on (1) an infringement of his constitutionally-protected liberty
interest, or (2) a deprivation of a constitutionally-protected property interest in his
continued employment with the City.
A plea to the jurisdiction challenges the court’s authority to decide a case.
Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012) (citing Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)). The burden is on the plaintiff
to affirmatively demonstrate the trial court’s jurisdiction. Id. (citing Texas Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).
Because subject-matter jurisdiction is a question of law, we review de novo a
trial court’s ruling on a plea to the jurisdiction. Houston Belt & Terminal Ry. Co. v.
City of Houston, 487 S.W.3d 154, 160 (Tex. 2016). In assessing a plea to the
jurisdiction, we begin by considering the plaintiff’s live pleadings and determine
whether the facts alleged affirmatively demonstrate that jurisdiction exists.
Heckman, 369 S.W.3d at 150 (citing Miranda, 133 S.W.3d at 226).
If the pleadings fail to allege sufficient facts to affirmatively demonstrate the
trial court’s jurisdiction but also fail to affirmatively demonstrate incurable defects
in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be
afforded the opportunity to amend. Miranda, 133 S.W.3d at 226–27. If, on the other
hand, the pleadings affirmatively negate the existence of jurisdiction, then a plea to
the jurisdiction may be granted without allowing the plaintiff an opportunity to
amend. Id. at 227. We must also consider evidence the parties presented below that
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is relevant to the jurisdictional issues, Bland Indep. Sch. Dist., 34 S.W.3d at 555,
including evidence that a party has presented to negate the existence of facts alleged
in the plaintiff’s pleading. See Miranda, 133 S.W.3d at 227.
We construe the plaintiff’s pleadings liberally, taking all factual assertions as
true, and look to the plaintiff’s intent. Heckman, 369 S.W.3d at 150 (citing Miranda,
133 S.W.3d at 226). A plea to the jurisdiction must be granted if the defendant
affirmatively negates the existence of the court’s jurisdiction. Id.
DISCUSSION
The Texas Constitution provides: “No citizen of this State shall be deprived
of life, liberty, property, privileges or immunities, or in any manner disenfranchised,
except by the due course of the law of the land.” TEX. CONST. art. 1, § 19. The
supreme court has explained that because “[t]he Texas due course clause is nearly
identical to the federal due process clause,” Texas courts “have traditionally
followed contemporary federal due process interpretations of procedural due process
issues.” Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex.
1995). Consequently, although federal interpretations of procedural due process are
not binding in this case, we consider them to be persuasive authority. See id.Fitzgerald argues the trial court has jurisdiction over his claims that the City
violated his liberty and property interests. We consider each interest in turn.
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1. 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.) (quoting Arrington v. Cty. of
Dallas, 970 F.2d 1441, 1447 (5th Cir. 1992), and citing Brantley v. Tex. Youth
Comm’n, 365 S.W.3d 89, 106 (Tex. App.—Austin 2011, no pet.)). “‘To assert a
claim for the deprivation of this constitutional right to a name-clearing hearing, a
plaintiff must allege that he was a public employee, that he was discharged, that
stigmatizing charges were made against him in connection with his discharge, that
the charges were false, that the charges were made public, that he requested a name-
clearing hearing, and that the hearing was denied.’” Id. (quoting Arrington, 970 F.2d
at 1447). The remedy for denial of due process in these circumstances is a name-
clearing hearing, not retention on the payroll, back pay, or a right to continued
employment. Dennis v. S&S Consol. Rural High Sch. Dist., 577 F.2d 338, 344 (5th
Cir. 1978) (citing Codd v. Velger, 429 U.S. 624, 627 (1977) (per curiam), and Board
of Regents v. Roth, 408 U.S. 564, 573 n.12 (1972)).
The public charges must be “‘so stigmatizing that they create a ‘badge of
infamy’ that destroys plaintiffs’ ability to obtain other employment.’” Caleb, 518
S.W.3d at 545 (quoting Arrington, 970 F.2d at 1447). “Injury to a plaintiff’s
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reputation does not, in itself, amount to a deprivation of this liberty interest.”
Brantley, 365 S.W.3d at 106.
Numerous courts have considered whether particular charges created such
“badges of infamy.” In Upshaw v. Erath County, Texas, the court gave “[e]xamples
of dismissals held to be stigmatizing,” including “dismissals for dishonesty or for
having committed a serious felony.” No. 3:17-CV-1758-S, 2019 WL 2341378, at *5
(N.D. Tex. June 3, 2019) (mem. op. & order) (citing White v. Thomas, 660 F.2d 680,
684–85 (5th Cir. 1981) (police officer accused of lying on an official document), and
United States v. Briggs, 514 F.2d 794, 798 (5th Cir. 1975) (accusation of
participation in conspiracy to violate federal statutes including use of explosives to
commit federal felonies)). In Dennis, the court found a school district’s public charge
that a teacher had a drinking problem to be stigmatizing. See Dennis, 577 F.2d at341–43. In Willbanks v. Smith County, Texas, 661 F. Supp. 212, 215–16 (E.D. Tex.
1987), the court held there was evidence to support the jury’s finding of stigma
where a sheriff was terminated based on allegations that he was involved in a series
of thefts of saddles and cattle.
“In contrast, dismissals that merely suggest inadequate job performance or
incompetence are not sufficient.” Upshaw, 2019 WL 2341378, at *5. In Upshaw—
as in this case, as we discuss below—a deputy sheriff and captain were given a
“general discharge” rather than an “honorable discharge,” as those terms are defined
in the Texas Occupations Code. Id. at *1, 5. The officers’ request for a name-clearing
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hearing was denied. Id. at *2. The officers contended that “the ‘General Discharge’
was a ‘proverbial “kiss of death” for a law enforcement officer,’” so their
employment opportunities had been substantially foreclosed. Id. Quoting the
statutory language, the court explained that a “general discharge” “means either that
the termination ‘was related to a disciplinary investigation of conduct that is not . . .
criminal misconduct [or] insubordination or untruthfulness,’ or that the termination
was ‘for a documented performance problem.’” Id. at *5 (quoting TEX. OCC. CODE
§ 1701.452(b)(2)–(3)). Concluding that “[a]ccordingly, the ‘General Discharge’
merely suggests that Plaintiffs’ performance was inadequate or incompetent, rather
than that Plaintiffs committed a serious felony or were dishonest,” the court granted
the motion to dismiss the plaintiffs’ due process claims. Id.
Other courts have reached similar conclusions. In Evans v. City of Dallas, 861
F.2d 846, 851 and n.29 (5th Cir. 1988) (per curiam), the court held that progress
reports “indicat[ing] excessive absenteeism, poor attitude, public criticism of his
department, bad language, and alienation of co-workers” did not create a badge of
infamy. And in Town of Shady Shores v. Swanson, the court concluded there was no
badge of infamy where the employer complained that Swanson “was unable to
perform the tasks required of her, was lax in her performance of her duties, and was
once rude to the mayor.” 544 S.W.3d 426, 442 (Tex. App.—Fort Worth 2018), rev’d
in part on other grounds, 590 S.W.3d 544 (Tex. 2019); see also Huffstutler v.
Bergland, 607 F.2d 1090, 1092 (5th Cir. 1979) (no badge of infamy where
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Department of Agriculture employee was given unsatisfactory rating for honesty but
not accused of property theft); Caleb, 518 S.W.3d at 545 (where employee received
name-clearing hearing, prevailed, and found employment elsewhere, charges that
she participated in standardized testing scandal were not so stigmatizing that they
created badge of infamy); Phelan v. Texas Tech Univ., No. 07-07-0171-CV, 2008
WL 190741, at *10 (Tex. App.—Amarillo Jan. 23, 2008, pet. denied) (mem. op.)
(read in context, references to plaintiff as a “creep” and description of his behavior
as “dysfunctional” were not so stigmatizing as to deprive plaintiff of liberty interest).
In this case, Fitzgerald argues he was unconstitutionally deprived of his liberty
interest when he was discharged under stigmatizing circumstances without a name-
clearing hearing. In its plea to the jurisdiction, the City addressed each allegation on
which Fitzgerald relies.
a. The termination memo
In the termination memo, the City criticized Fitzgerald’s “increasing lack of
good judgment” as police chief and “track record of making decisions that are more
focused on [his own] best interest” instead of the City’s or the department’s. The
memo cited Fitzgerald’s “inability to build relationships,” “add[ing] unnecessary
stress and drama” to an audit, attempting to improve his image, recommending a
particular book on leadership to his employees, publicly accepting a position with
another city, refusing to follow up on investigations that he initiated, and failing to
manage the department’s budget.
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Unlike the cases where a “badge of infamy” was found, however, none of the
City’s criticisms impugned Fitzgerald’s character for honesty or accused him of
crime. See, e.g., White, 660 F.2d at 684–85 (accusing an officer of lying on an
official document); Briggs, 514 F.2d at 798 (accusations of federal felonies). We
conclude the City’s statements in the termination memo did not constitute a “badge
of infamy” implicating Fitzgerald’s liberty interest. See Town of Shady Shores, 544
S.W.3d at 443 (“Because the allegations about Swanson’s performance made in
connection with her termination were not stigmatizing, her termination did not affect
her liberty interest.”).
b. The press conferences
In his petition, Fitzgerald alleges that immediately after the termination
meeting, the City called a press conference to announce that Fitzgerald had been
terminated with cause. He contends the City “disparaged [his] character” by
releasing the termination memo to the press. In his response to the City’s plea and
his supporting affidavit, Fitzgerald also explained that during the press conference,
Cooke “openly questioned Dr. Fitzgerald’s ‘judgment and leadership’ skills.”
Fitzgerald also alleges that in a second press conference on May 22, 2019, Cooke
and Chapa “again openly criticized and disparaged my leadership, tarnishing my
professional reputation in the policing industry.” And in his response to the City’s
plea, Fitzgerald alleged that “Mayor Betsy Price made a separate statement where
she announced that she ‘supported the termination’ and said that the City ‘deserves
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a leader who will be present, active, and engaged,’ implying that Dr. Fitzgerald had
none of these qualities.”
In its plea to the jurisdiction, the City described the initial press conference:
On May 20, 2019, Cooke held a press conference discussing Plaintiff’s
removal. At the press conference, Cooke indicated that the removal was
a result of a culmination of items, including a recent incident in
Washington, D.C., Plaintiff’s previous selection as a finalist for Police
Chief of the City of Baltimore, Plaintiff‘s fiscal stewardship, and
Plaintiff’s teamwork within the organization, all of which brought into
question Plaintiff’s “judgment and leadership.”
In sum, the record reflects that the City and the Mayor generally repeated the
concerns expressed in the termination memo in their comments to the press. As we
have explained, these allegations do not constitute a “badge of infamy” affecting
Fitzgerald’s liberty interest. See Town of Shady Shores, 544 S.W.3d at 443.
c. The F-5 form
Upon Fitzgerald’s separation from the Department, the City was required to
complete and file a Texas Commission on Law Enforcement Form F-5, “Separation
of Licensee.” See TEX. OCC. CODE § 1701.452. Fort Worth Police Captain Bryan
Jamison signed the form on May 23, 2019. Jamison checked the box showing that
Fitzgerald’s separation from the Fort Worth Police Department was a “General
Discharge.” The form described this category:
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General Discharge3
(A) was terminated by, retired or resigned from, or died while employed
by a law enforcement agency and the separation was related to a
disciplinary investigation of conduct that is not included in the
definition of dishonorably discharged; or
(B) was terminated by or retired or resigned from a law enforcement
agency and the separation was for a documented performance problem
and was not because of a reduction in workforce or an at-will
employment decision.
The form included two other categories, “Honorably Discharged” and
“Dishonorably Discharged.” An honorable discharge was defined as one made
“while in good standing and not because of pending or final disciplinary actions or
a documented performance problem.” A dishonorable discharge was defined as
termination, or retirement or resignation in lieu of termination, “in relation to
allegations of criminal misconduct” or “for insubordination or untruthfulness.”
Fitzgerald contested the “General Discharge” designation before the State
Office of Administrative Hearings (SOAH) and obtained a favorable decision. See
TEX. OCC. CODE § 1701.4525 (“Petition for Correction of Report; Hearing”). In a
decision and order dated May 15, 2020, the administrative law judge found that “the
Police Department has failed to establish misconduct that would warrant
[Fitzgerald’s] separation being classified as a general discharge,” and concluded that
3
As we discuss, section 1701.452 of the Texas Occupations Code, entitled “Employment Termination
Report,” sets forth the requirements for the form, including descriptions of the three categories of discharges
discussed here. See TEX. OCC. CODE § 1701.452(b).
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“the F-5 Report should be changed to reflect that [Fizgerald] was honorably
discharged.”
A general discharge, for reasons not involving allegations of criminal
misconduct, insubordination, or untruthfulness, would not have been so stigmatizing
as to create a “badge of infamy.” See Upshaw, 2019 WL 2341378 at *5 (“general
discharge” of law enforcement officer on F-5 form was not badge of infamy). But in
any event, Fitzgerald received a hearing from SOAH, the result was favorable to
him, and the record now reflects he received not a “general” discharge but an
“honorable” one.
Considering the pleadings and the evidence relevant to the jurisdictional issue,
see Heckman, 369 S.W.3d at 150, we conclude the trial court lacked jurisdiction over
Fitzgerald’s claim that the City violated his liberty interest under Article 1, Section
19 of the Texas Constitution. We sustain the City’s first issue.
2. Property interest
In its second issue, the City argues that Fitzgerald’s due process claim fails
because he was an at-will employee with no protected property right in his continued
employment. The City contends it offered sufficient evidence that Fitzgerald was at
at-will employee, shifting the burden to Fitzgerald to offer competent evidence that
he was “depriv[ed] of a constitutionally-protected property interest in his continued
employment with the City.”
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To invoke due process protection, an employee must have a cognizable
property interest in continued employment. See Roth, 408 U.S. at 577 (to have a
property interest protected by due process, a person must have more than an abstract
need or unilateral desire for it; a person “must, instead, have a legitimate claim of
entitlement to it”). An at-will employment relationship4 does not create such an
interest. See, e.g., Moreno v. Tex. Dep’t of Transp., 440 S.W.3d 889, 897 (Tex.
App.—El Paso 2013, pet. denied); Coté v. Rivera, 894 S.W.2d 536, 542 (Tex.
App.—Austin 1995, no writ).
“A discharged employee who asserts that the parties have contractually
agreed to limit the employer’s right to terminate the employee at will has the burden
of proving an express agreement or written representation to that effect.” Id. Any
ambiguity in the grant of a property interest in public employment is resolved in
favor of the State. Byars v. City of Austin, 910 S.W.2d 520, 523 (Tex. App.—Austin
1995, writ denied).
Fitzgerald argues he was not an employee at will. He contends that “an
employment agreement existed,” evidenced by his testimony at the SOAH hearing
about a letter from the City offering him employment that set out a schedule of
4
“Texas follows the employment-at-will doctrine, and employment for an indefinite term may be
terminated at will and without cause.” Williams v. First Tennessee Nat’l Corp., 97 S.W.3d 798, 802–03
(Tex. App.—Dallas 2003, no pet.). “Absent a specific contract term to the contrary, this doctrine allows an
employee to quit or be terminated without liability on the part of the employer or the employee, with or
without cause.” Id. at 803.
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payments in the event that he was involuntarily terminated without cause. He
concedes that “this fact alone does not indicate whether Dr. Fitzgerald was an
employee at will,” but argues that “it at least confirms that a contract for his
employment existed.” The City responds, however, that Fitzgerald has not alleged
the existence of any agreement limiting the City’s ability to terminate his
employment.
Fitzgerald also relies on the City’s completion of the F-5 form as a “General
Discharge” to argue that his employment was not at will. Relying on the wording of
the “General Discharge” category—that his termination “was not because of . . . an
at-will employment decision”—Fitzgerald argues that his employment was not “at
will.” He contends that by checking the “General Discharge” box on the F-5 form,
“the City appears to concede that Dr. Fitzgerald was not an employee at will.” We
disagree. The form’s statutory source, § 1701.452(b)(2) of the Texas Occupations
Code, defines “generally,” “honorably,” and “dishonorably” discharged. TEX. OCC.
CODE ANN. § 1701.452(b)(1), (3). The statute addresses types of discharges, not
terms of employment. See generally id. § 1701.452 (requiring law enforcement
agencies to report employee resignations, retirements, terminations, and separations
to the Texas Commission on Law Enforcement).
As the City argues, Fitzgerald’s reading of the statute would “turn every
officer who was terminated for a performance problem into a contract employee.”
Under Texas law, the presumption is otherwise. See Talford v. Columbia Med. Ctr.
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at Lancaster Subsidiary, L.P., 198 S.W.3d 462, 464 (Tex. App.—Dallas 2006, no
pet.) (discussing “presumption of at-will employment” under Texas law). “Absent a
specific agreement to the contrary, employment may be terminated by the employer
or the employee at will, for good cause, bad cause, or no cause at all.” Id. (citing
Midland Judicial Dist. Cmty. Supervision & Corrs. Dep’t v. Jones, 92 S.W.3d 486,
487 (Tex. 2002) (per curiam)). We conclude that by checking the “General
Discharge” box on the form, the City did not admit that Fitzgerald was not an at-will
employee.
Fitzgerald next contends he was employed by the City as “Acting Chief of
Police” before he completed the “procedural requirements necessary” to become
police chief and department head. He argues that because neither party offered
evidence in the record on this point, we must accept his allegation as true and draw
inferences in his favor. Relying on local government code § 143.013(c), he argues
that he should have been reinstated in the department as acting police chief when he
was terminated as chief. See TEX. LOC. GOV’T CODE ANN. § 143.013(c) (“if a person
is removed from the position of department head, the person shall be reinstated in
the department and placed in a position with a rank not lower that that held by the
person immediately before appointment as department head”; the person “retains all
rights of seniority in the department”).
The City responds that Fitzgerald never held any rank under the Texas civil
service laws prior to his appointment as the department head for the police
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department. The record reflects that immediately before his employment with the
City as department head and police chief, he was the chief of police for the city of
Allentown, Pennsylvania. The City further argues that Fitzgerald did not raise this
argument in the trial court and has offered no supporting evidence. The City
concludes that that there is nothing in local government code Chapter 143 to support
Fitzgerald’s contention. We conclude there is no evidence to raise a fact issue that
Fitzgerald held a lower rank in the department before he was appointed as
department head.
Last, Fitzgerald contends public policy does not support the City’s argument
that he was an employee at will. He contends that there is no “special class of citizens
who have greater constitutional rights based on the terms of their employment
agreements,” arguing “[i]t suggests an elitism that some Texas citizens, either due
to luck or skill in negotiation of contracts, have more constitutional rights than
others.” He concludes that this “public policy advanced by the City is dangerous and
should not be adopted.” But no new public policy is at issue here. See Montgomery
Cty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998) (“For well over a
century, the general rule in this State, as in most American jurisdictions, has been
that absent a specific agreement to the contrary, employment may be terminated by
the employer or the employee at will, for good cause, bad cause, or no cause at all.”);
Winters v. Houston Chronicle Pub. Co., 795 S.W.2d 723, 723 (Tex. 1990) (“The
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long standing rule in Texas is that employment for an indefinite term may be
terminated at will and without cause.”).
Considering the relevant pleadings and the evidence, see Heckman, 369
S.W.3d at 150, we conclude the trial court lacked jurisdiction over Fitzgerald’s claim
that the City violated his property interest in his employment under Article 1, Section
19 of the Texas Constitution. We sustain the City’s second issue.
CONCLUSION
We reverse the trial court’s order denying the City’s plea to the jurisdiction as
to Fitzgerald’s claims in Counts 3 and 4 of his petition and render judgment
dismissing the claims for lack of jurisdiction.
/Jeff L. Rose/
JEFF L. ROSE
FORMER CHIEF JUSTICE,
COURT OF APPEALS,
THIRD DISTRICT OF TEXAS AT AUSTIN
SENIOR JUDGE
SITTING BY ASSIGNMENT
220327F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CITY OF FORT WORTH, TEXAS, On Appeal from the 191st Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-19-08184.
No. 05-22-00327-CV V. Opinion delivered by Justice Rose.
Justices Carlyle and Garcia
JOEL FITZGERALD, SR., Appellee participating.
In accordance with this Court’s opinion of this date, the trial court’s order of
April 7, 2022 is REVERSED and judgment is RENDERED that:
Plaintiff/Appellee Joel Fitzgerald Sr.’s claims in Counts 3 and 4 of his
operative petition are dismissed for lack of jurisdiction.
It is ORDERED that appellant City of Fort Worth, Texas recover its costs of
this appeal from appellee Joel Fitzgerald, Sr.
Judgment entered February 8, 2023
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