Victor H. Tamayo v. Sheriff Omar Lucio, in His Official Capacity

NUMBER 13-11-00746-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
VICTOR H. TAMAYO, Appellant,
v.
SHERIFF OMAR LUCIO,
IN HIS OFFICIAL CAPACITY, Appellee.
On appeal from the 138th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion by Justice Benavides
A trial court dismissed appellant Victor Tamayo’s case by granting a plea to the
jurisdiction filed by the appellee, Cameron County Sheriff Omar Lucio in his official
capacity. In two issues, Tamayo argues that: (1) governmental immunity did not bar
his suit because he alleged a statutory violation and was not seeking monetary
damages, and (2) the Cameron County Sheriff was the proper defendant in his suit
alleging an ultra vires act. We affirm, in part, and reverse and remand, in part.
I. BACKGROUND
Tamayo was a licensed and commissioned peace officer for the State of Texas.
After Tamayo worked for several municipal police departments, then-Sheriff Conrado
Cantu commissioned Tamayo as a Sheriff’s Deputy for Cameron County in 2001. With
this commission, Tamayo received a badge from the Cameron County Sheriff’s
Department that identified him as a full-time peace officer. In 2005, Tamayo was
re-appointed by the current Cameron County Sheriff, Omar Lucio, as a Deputy Bailiff
“with full power and authority to perform all the acts and duties required. . . .” From
2005 to 2009, Tamayo worked as a bailiff in the 107th Judicial District Court for the
Honorable Benjamin Euresti, Jr. His job responsibilities included screening people who
entered the Cameron County Courthouse and providing additional security in Judge
Euresti’s courtroom. Of note, at this time in Cameron County, bailiffs’ paychecks were
issued through the county’s “Courthouse Security Department” and not through the
Sheriff’s Department.
Tamayo alleges that, on May 8, 2009, he issued a written reprimand for
insubordination to fellow Deputy/Bailiff Elizabeth Avitia. Deputy Avitia then complained
about Tamayo’s reprimand “upstairs” at the Cameron County courthouse. On May 11,
2009, Judge Euresti terminated Tamayo’s employment with the following letter:
2
As it may evidence, your services are no longer required and you are to
turn all of your Cameron County issued equipment. Therefore, you are
relieved from your duties effective today May 11, 2009 instanter.
After receiving this letter of termination, Tamayo appealed the decision to Sheriff
Lucio. Tamayo asserted that, as a peace officer, he was entitled to the protections of
chapter 614 of the Texas Government Code. TEX. GOV’T CODE ANN. § 614.001–.104
(West 2004 & Supp. 2011). Chapter 614 sets forth the procedures by which persons
such as peace officers and firefighters can be disciplined and/or terminated. According
to Tamayo’s pleadings, Sheriff Lucio denied the appeal and eventually submitted an “F-5
Report of Separation of License” to the Texas Commission on Law Enforcement,
reporting that Tamayo’s commission was honorably discharged. Lucio’s denial and
subsequent actions, Tamayo claims, constituted an “ultra vires ratification” of Judge
Euresti’s termination.
Tamayo then appealed to the Cameron County Civil Service Commission, which
dismissed his appeal for lack of jurisdiction. Bailiffs were not covered by the Civil
Service Commission at the time.1 The Civil Service Commission explained that it could
not consider his complaint because he was not an employee of the Sheriff’s Department,
but rather an at-will employee of the Cameron County Courthouse Security Department.
Tamayo then filed suit, requesting: (1) a declaratory judgment, (2) a request for
mandamus, and (3) a finding of wrongful termination and retaliation.2 Although his
1
Cameron County has since modified this policy to include bailiffs in their civil service commission.
2
We refer to Tamayo’s live pleading, entitled “Plaintiff’s Fourth Amended Petition.”
3
lawsuit was initially filed against the Cameron County Civil Service Commission, he later
dismissed his claims against this entity and added Sheriff Lucio in his official capacity as
Cameron County Sheriff. Tamayo argued that under chapter 614, he could not be
terminated without being given written notice of the charges against him, which must be
signed by the person making the complaint. See id. § 614.022. The complaint must
also be fully investigated and there must be evidence to prove the alleged misconduct.
Id. § 614.023(c).
Sheriff Lucio filed a plea to the jurisdiction, claiming that Tamayo was an at-will
employee employed by the Cameron County District Courthouse Security Department,
not a peace officer under the supervision of the Sheriff’s Department. As a courthouse
employee, Sheriff Lucio averred, Tamayo was not covered by chapter 614; thus, the
sheriff’s department had no duty to abide by those provisions. After a hearing, the trial
court granted Sheriff Lucio’s plea to the jurisdiction, thus dismissing Tamayo’s claims.
Tamayo appealed.
II. LAW REGARDING CHAPTER 614
Chapter 614 sets forth the procedures by which peace officers and firefighters in
Texas can be disciplined and/or terminated. TEX. GOV’T CODE ANN. § 614.001–.104.
This chapter defines employers as any “governmental entity that employs or appoints a
peace officer or fire fighter . . . .” Id. § 614.001(1). The statute applies to complaints
against any “peace officer under Article 2.12, Code of Criminal Procedure, or other law
who is appointed or employed by a political subdivision of this state.” Id. §
614.021(a)(3); see TEX. CODE CRIM. PROC. ANN. art. 2.12 (West Supp. 2011). Under
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chapter 614, peace officers and firefighters are “entitled to an investigation and to
receive a copy of the written complaint before being disciplined or terminated.” See
Graves v. Mack, 246 S.W.3d 704, 706 (Tex. App.—Houston [14th Dist.] 2007, no pet);
see also TEX. GOV’T CODE ANN § 614.023. The complaint must be in writing and signed
by the person making the complaint. TEX. GOV’T CODE ANN. § 614.022. Further,
before being terminated, the complaint must be fully investigated and there must be
“evidence to prove the allegation of misconduct.” Id. § 614.023(c).
III. PLEA TO THE JURISDICTION
A. Applicable Law
1. Plea to the Jurisdiction
A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of
action without regard to whether the claims asserted have merit.” Bland Indep. Sch.
Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's
authority to determine the subject matter of a pleaded cause of action. Tex. State
Employees Union/CWA Local 6184 v. Tex. Workforce Comm'n, 16 S.W.3d 61, 65 (Tex.
App.—Austin 2000, no pet.). The existence of subject-matter jurisdiction is a question
of law; thus, we review de novo the trial court's ruling on a plea to the jurisdiction. Id.
When a plea to the jurisdiction challenges the pleadings, we determine if the
pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear
the cause. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)
(citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)).
We construe the pleadings liberally in favor of the plaintiff and look to the pleaders’
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intent. Miranda, 133 S.W.3d at 226. If the pleadings do not contain sufficient facts to
affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate
incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff
should be afforded an opportunity to amend. Id. However, if the pleadings
affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be
granted without allowing the plaintiff an opportunity to amend. Id. (citing County of
Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)).
If the plea challenges the existence of jurisdictional facts, we consider relevant
evidence submitted by the parties when necessary to resolve the jurisdictional issue
raised, as the trial court is required to do so. Bland Ind. Sch. Dist., 34 S.W.3d at 555.
In a case in which the jurisdictional challenge implicates the merits of the plaintiff’s cause
of action and the plea to the jurisdiction includes evidence, the trial court reviews the
relevant evidence to determine if a fact issue exists. Miranda, 133 S.W.3d at 227. If a
fact question exists, then the plea cannot be granted and the fact issue will be resolved
by the fact finder. Id. However, if the relevant evidence is undisputed or fails to raise a
fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction
as a matter of law. Id.
2. Sovereign Immunity
Under Texas law, sovereign immunity deprives a trial court of subject-matter
jurisdiction for lawsuits against the State or certain governmental units unless the State
expressly consents to the suit. Miranda, 133 S.W.3d at 224. Governmental immunity
operates in a similar way by offering governmental subdivisions, such as counties, cities,
6
and school districts, immunity from suit unless that immunity is clearly waived. See
Tooke v. City of Mexia, 197 S.W.3d 325, 300–31 n.11 (Tex. 2006) (explaining the
difference between sovereign immunity and governmental immunity).
“Sovereign immunity protects the State from lawsuits for money damages.” Tex.
Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). Immunity
can be waived, but it must be “effected by clear and unambiguous language.” TEX.
GOV’T CODE ANN. § 311.034 (West Supp. 2011); see City of New Braunfels v. Allen, 132
S.W.3d 157, 161 (Tex. App.—Austin 2004, no pet.). The Texas Supreme Court has
acknowledged, though, that “an action to determine or protect a private party's rights
against a state official who has acted without legal or statutory authority is not a suit
against the State that sovereign immunity bars.’” City of El Paso v. Heinrich, 284
S.W.3d 366, 372 (Tex. 2009) (citing Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405
(Tex. 1997)). The high court elaborated that “suits to require state officials to comply
with statutory or constitutional provisions are not prohibited by sovereign immunity, even
if a declaration to that effect compels the payment of money.” City of El Paso, 284
S.W.3d at 372.
B. Discussion
1. The Applicability of Chapter 614
It is undisputed that Tamayo was appointed by the Cameron County Sheriff’s
Department in 2001 by then-Sheriff Cantu. Documents from the Texas Commission on
Law Enforcement reflect that, in January 2001, Tamayo was appointed as a “regular
peace officer” with the “Cameron County Sheriff’s Office.” Tamayo was then
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re-appointed in 2005 by the current Cameron County Sheriff, Omar Lucio, as a Deputy
Bailiff “with full power and authority to perform all the acts and duties required . . . .”
In his brief, Sheriff Lucio refutes the contention that Tamayo was “employed” by
the Cameron County Sheriff’s Department. Instead, Sheriff Lucio argues that Tamayo
was employed by the Cameron County Courthouse Security Department, a division
separate and apart from the auspices of the sheriff’s reach. As proof of this contention,
Sheriff Lucio emphasized to the trial court that Tamayo was paid from the district court
budget and not the Sheriff’s Department. In fact, both parties at the hearing on the plea
to the jurisdiction stipulated to this fact.
This argument, however, is irrelevant. Chapter 614 applies to complaints
against any “peace officer under Article 2.12, Code of Criminal Procedure, or other law
who is appointed or employed by a political subdivision of this state.” TEX. GOV’T CODE
ANN. § 614.021(a)(3) (emphasis added). Tamayo presented evidence that he was
appointed by Cameron County as a Deputy “with full power and authority to perform all
the acts and duties required. . . .” This appointment was filed and recorded in Book 21
of the “Record of Appointments” in Cameron County. We also note that Texas law
requires that “the county sheriff shall have charge and control of the county courthouse,
subject to the regulations of the commissioners court.” See TEX. LOC. GOV’T CODE ANN.
§ 291.003 (West 2005). Tamayo worked in the county courthouse, a building over
which Sheriff Lucio had statutory “charge and control.” Id. Sheriff Lucio exercised this
apparent “charge and control” when he submitted an “F-5 Report of Separation of
License” to the Texas Commission on Law Enforcement, reporting that Tamayo’s
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commission was honorably discharged from his appointing agency, the “Cameron
County Sheriff’s Office.”
Because we conclude that Tamayo was “appointed” by Cameron County, we
need not address the issue of whether the sheriff’s department or the courthouse
security department “employed” him.3 See TEX. R. APP. P. 47.1. We conclude that
Tamayo was entitled to the procedural safeguards of chapter 614. See TEX. GOV’T
CODE ANN. § 614.021(a)(3).
2. Governmental Immunity
a. Waiver of Immunity
Having concluded that Tamayo was covered by chapter 614, we turn to the issue
of whether governmental immunity has been waived. We agree with Sheriff Lucio that
there is no clear and unambiguous general waiver of immunity built into chapter 614.
See TEX. GOV’T CODE ANN. § 614.001–.104; see Tex. Natural Res. Conservation
Comm'n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002) (affirming that “[l]egislative consent
to sue the State must be expressed in ‘clear and unambiguous language’”) (citing TEX.
GOV’T CODE ANN. § 311.034; Univ. of Tex. Med. Branch at Galveston v. York, 871
S.W.2d 175, 177 (Tex. 1994)).
However, as noted earlier, the Texas Supreme Court has held that “suits to
require state officials to comply with statutory or constitutional provisions are not
prohibited by sovereign immunity . . . .” City of El Paso, 284 S.W.3d at 372. Here,
3
Indeed, as Tamayo correctly points out, “the question of ‘who is a worker’s employer’” is often a
fact question. Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983).
9
Tamayo’s pleading alleged that Sheriff Lucio failed to perform the purely ministerial duty
of complying with chapter 614. This act, Tamayo alleges, constituted an “ultra vires”
ratification of Judge Euresti’s termination. In City of El Paso, the high court held that “to
fall within [the] ultra vires exception [to sovereign immunity], a suit must not complain of a
government officer's exercise of discretion, but rather must allege, and ultimately prove,
that the officer acted without legal authority or failed to perform a purely ministerial act.”
Id.
b. Tamayo’s Causes of Action
Tamayo pleaded that Sheriff Lucio failed to comply with chapter 614 and filed
several claims with the trial court to this effect: a declaratory action, a writ of
mandamus, and a common law claim for wrongful termination and retaliation. 4 We
analyze each claim in turn, construing Tamayo’s pleadings liberally in favor of him and
looking to his intent. Miranda, 133 S.W.3d at 226.
1. The Declaratory Judgment Action
The Uniform Declaratory Judgment Act “is a remedial statute designed ‘to settle
and to afford relief from uncertainty and insecurity with respect to rights, status, and
other legal relations.’” City of El Paso, 284 S.W.3d at 370 (citing TEX. CIV. PRAC. & REM.
CODE ANN. § 37.002(b) (West 2008)). It provides as follows:
A person . . . whose rights, status, or other legal relations are affected by a
statute, municipal ordinance, contract, or franchise may have determined
any question of construction or validity arising under the instrument,
4
Tamayo also claims that he requested injunctive relief at the trial court level, but that is not evident
in Plaintiff’s Fourth Amended Petition.
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statute, ordinance, contract, or franchise and obtain a declaration of rights,
status, or other legal relations thereunder.
TEX. CIV. PRAC. & REM. CODE ANN. § 37.004 (West 2008). With respect to Tamayo’s
claim for a declaratory judgment, “private parties may seek declaratory relief against
state officials who allegedly act without legal or statutory authority.” IT-Davy, 74 S.W.3d
at 855. “This is because suits to compel state officers to act within their official capacity
do not attempt to subject the State to liability.” Id. “Therefore, certain
declaratory-judgment actions against state officials do not implicate the
sovereign-immunity doctrine.” Id.
Sheriff Lucio argues, however, that Tamayo’s request for retroactive wages
makes this case a lawsuit for “money damages,” thus triggering the sheriff’s
governmental immunity. See IT-Davy, 74 S.W.3d at 853 (holding that “sovereign
immunity protects the State from lawsuits for money damages.”). Nevertheless, City of
El Paso holds the following:
Where statutory or constitutional provisions create an entitlement to
payment, suits seeking to require state officer to comply with the law are
not barred by immunity merely because they compel the [S]tate to make
those payments.
City of El Paso, 284 S.W.3d at 371. Tamayo claims that Chapter 614 created a
statutory requirement that Tamayo continue his employment until Sheriff Lucio complied
with the procedures to terminate him. See TEX. GOV’T CODE ANN. §§ 614.021–.023.
This statute, he contends, created an entitlement or a property interest. See Turner v.
Perry, 278 S.W.3d 806, 822 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). We
agree.
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In Turner v. Perry, the Fourteenth Court of Appeals dealt with a similar issue and
found that a school district police officer had a property interest in keeping his job until
the district followed its own grievance procedure. Id. “A property interest protected by
procedural due process arises where an individual has a legitimate claim of entitlement
that is created, supported, or secured by rules or mutually explicit understandings.” Id.
Here, chapter 614 “created a property interest: in the absence of a complaint that was
signed, delivered, investigated, and supported by evidence,” Tamayo had a “legitimate
expectation of continued employment.” See id.; see also Guthery v. Taylor, 112 S.W.3d
715, 721–23 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
In light of the foregoing, we hold that the trial court had jurisdiction over Tamayo’s
declaratory judgment action.
2. The Request for Writ of Mandamus
We also find that Tamayo’s claim for a writ of mandamus was properly before the
trial court. Tamayo requested the trial court to issue a writ to compel Sheriff Lucio to
comply with his non-discretionary duty to follow chapter 614. “A writ of mandamus will
issue to compel a public official to perform a ministerial act.” Anderson v. Seven Points,
806 S.W.2d 791, 793 (Tex. 1991). “An act is ministerial when the law clearly spells out
the duty to be performed by the official with sufficient certainty that nothing is left to the
exercise of discretion.” Id. Under City of El Paso, we hold that this mandamus
request was in the trial court’s jurisdiction to decide. City of El Paso, 284 S.W.3d at
372.
3. Common-Law Causes of Action
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Tamayo also pleaded common law causes of action such as wrongful termination
and retaliation. First, we sustain the plea to the jurisdiction with regard to the retaliation
claim because Texas does not recognize a common law action for retaliatory discharge.
See Austin v. HealthTrust, Inc.—The Hosp. Co., 967 S.W.2d 400, 401 (Tex. 1998).
“Rather than create a one-size-fits-all whistleblower statute, the Texas Legislature has
instead opted to enact statutes that protect specific classes of employees from various
types of retaliation.” Id. (outlining various statutes in the Texas Government Code,
Health and Safety Code, and Agriculture code, among others, for whistleblowers).
Tamayo did not plead any particular statutory retaliation claim, so the trial court’s
dismissal of this cause of action was appropriate. See id.
Second, with regard to Tamayo’s claim for wrongful termination, we conclude that
the plea to the jurisdiction was appropriate because there is no evidence of waiver of
governmental immunity. “It is only where the court can see that, even by amendment,
no cause of action can be stated consistent with the facts alleged that the court is without
jurisdiction.” Bybee v. Fireman's Fund Ins. Co., 331 S.W.2d 910, 917 (Tex. 1960). We
find that the trial court has no jurisdiction in the matter concerning wrongful termination.
C. Conclusion
Tamayo has alleged facts that affirmatively demonstrate the court’s jurisdiction to
hear his declaratory judgment action and request for mandamus. Miranda, 133 S.W.3d
at 226. We hold that his common law causes of action in retaliation and wrongful
termination, however, are barred. We sustain his first issue in part and overrule it in
part.
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IV. PROPERLY NAMED DEFENDANT
In his second issue, Tamayo contends that Sheriff Omar Lucio, in his official
capacity, is a properly named defendant.
A. Applicable Law
“A plaintiff may sue a governmental employee or official in the person's official
capacity, individual capacity, or both.” Nueces County v. Ferguson, 97 S.W.3d 205,
213 (Tex. App.—Corpus Christi 2002, no pet.) (citing Denson v. Tex. Dep't of Crim.
Justice, 63 S.W.3d 454, 460 (Tex. App.—Tyler 1999, pet. denied)). Claims against
governmental employees or officials in their official capacities are separate and distinct
from claims against them in their individual capacities. Id. at 213–14 (quoting Vela v.
Rocha, 52 S.W.3d 398, 403 (Tex. App.—Corpus Christi 2001, no pet.)). “A person
sued in his legal capacity is regarded as a distinct legal personage from that same
person sued in his individual capacity.” Id. at 214. “A person filing suit against an
individual solely in an official capacity thus cannot impose liability or recover damages
from that same person in an individual capacity, nor can a suit solely against a person in
an individual capacity result in liability or the execution of a judgment against the
governmental unit that the person represents in an official capacity.” Id.
“Accordingly, the capacity in which a governmental employee or official is sued is
significant because it affects the party upon whom liability may be imposed and from
whom damages may be collected, as well as the defenses that may be raised.” Id.
(citing Jackson v. Stinnett, 881 S.W.2d 498, 500 (Tex. App.—El Paso 1994, no writ)).
In a suit against a person in an official capacity, a plaintiff is actually seeking to
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impose liability against the governmental unit the sued person represents, rather than on
the individual specifically named. Id.; Rocha, 52 S.W.3d at 403. The suit is, then, in
actuality, one against the governmental unit, which is the legal entity that will be held
liable for any judgment rendered against the individual sued in an official capacity.
Nueces County, 97 S.W.3d at 214.
The capacity in which a governmental employee or official is sued likewise affects
the immunity defenses that may be asserted. Rocha, 52 S.W.3d at 403. “Persons
sued in their official capacity may raise any defense available to the governmental unit,
including sovereign immunity.” Nueces County, 97 S.W.3d at 214. “An individual
sued in an official capacity may enjoy the protections of sovereign immunity to the same
extent as those protections are available to the person's employer and thus, if the
governmental unit would be immune due to sovereign immunity, so is the governmental
official sued in his official capacity.” Id. (citing City of Hempstead v. Kmiec, 902 S.W.2d
118, 122 (Tex. App.—Houston [1st Dist.] 1995, no writ)).
B. Discussion
As explained earlier, Lucio’s claim of governmental immunity in his official
capacity is waived for the reasons elucidated in City of El Paso: “suits to require state
officials to comply with statutory or constitutional provisions are not prohibited by
sovereign immunity.” City of El Paso, 284 S.W.3d at 372. Here, Tamayo’s pleadings
assert that, as Sheriff of Cameron County, Sheriff Lucio had the ministerial duty to follow
the procedures set forth in chapter 614 when ending Tamayo’s appointment as a deputy.
See TEX. GOV’T CODE ANN. §§ 614.001–.104. We agree. “An action to determine or
15
protect a private party’s rights against a state official who has acted without legal or
statutory authority is not a suit against the State that sovereign immunity bars.” Fed.
Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997).
Because we conclude it was appropriate for Tamayo to name Sheriff Omar Lucio
in his official capacity, we sustain Tamayo’s second issue.5
V. CONCLUSION
Having sustained Tamayo’s first issue in part, and sustained his second issue in
full, we reverse and remand this case to the trial court for proceedings consistent with
this opinion.
__________________________
GINA M. BENAVIDES,
Justice
Delivered and filed the
18th day of July, 2013.
5
In his briefing, Sheriff Lucio contended that because Tamayo was employed (and paid) by the
Cameron County Courthouse Security Department and not the Sheriff’s Department, there is no “position”
to which to return him. Further, Sheriff Lucio argued that the Sheriff’s Department should not be the one
to pay any retroactive “back wages” because Tamayo was not his employee.
This briefing is premature. The focus of this memorandum opinion was to determine if the trial
court had jurisdiction to hear Tamayo’s lawsuit. We have determined that the trial court has jurisdiction
over Tamayo’s declaratory judgment action and his request for mandamus. The merits of the case, and
any appropriate relief, if necessary (such as a reinstated position or retroactive wages), must be
considered before the trial court, not this court.
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