Yvonne Barclay v. The Bexar County Sheriff's Department, Sheriff Ralph Lopez, in his Official Capacity, and The Bexar County Sheriff's Civil Service Commission--Appeal from 408th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-02-00780-CV

Yvonne BARCLAY,

Appellant

v.

THE BEXAR COUNTY SHERIFF'S DEPARTMENT,

Sheriff Ralph Lopez in His Official Capacity,

and the Bexar County Sheriff's Civil Service Commission,

Appellees

From the 408th Judicial District Court, Bexar County, Texas

Trial Court No. 2000-CI-00456

Honorable Frank Montalvo, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 16, 2003

REVERSED AND REMANDED

This is an appeal from the trial court's dismissal of appellant's claims based on appellees' plea to the jurisdiction/motion to dismiss (hereinafter "plea to the jurisdiction"). Because the basis of appellee's plea to the jurisdiction did not establish that the trial court lacked jurisdiction, we reverse and remand.

BACKGROUND

Yvonne Barclay was employed by the Bexar County Sheriff's Department and Sheriff Ralph Lopez as a Bexar County Detention Officer. Barclay alleges she suffered on-the-job injuries to both of her hands in February 1998. Barclay has been diagnosed with bilateral carpel tunnel syndrome, and she has undergone three surgeries. Barclay received worker's compensation benefits; however, she did not receive her full salary. Instead, Barclay was required to use accrued personal, sick, holiday, and compensatory time during her leave from work. On April 9, 1999, Sheriff Lopez ordered Barclay to a fitness for duty evaluation, following which, she was declared unfit for duty. As a result, Sheriff Lopez required Barclay to accept a civilian position at a reduced salary or be terminated. On June 10, 1999, Sheriff Lopez terminated Barclay's employment.

On August 31, 1999, the Bexar County Sheriff's Civil Service Commission held a hearing on Barclay's grievance following her termination. Before the Commission, Barclay asserted her condition was not improving and she requested that she be paid her full salary pursuant to Texas Constitution article III, section 52e. (1) During the hearing, the parties and the Commission struggled with two issues: whether carpal tunnel syndrome is the type of work-related injury envisioned by section 52e and, if it is, is Barclay "incapacitated." The record does not contain a written order from the Commission. However, the record contains the transcript from the Commission hearing, at the conclusion of which one of the commissioners moved to deny Barclay's "claim pursuant to Article 3, Section 52(e) . . . ."

Barclay then filed suit in district court, alleging the appellees' denial of her full salary violated her constitutional rights under section 52e; requesting a declaratory judgment that she was entitled to section 52e benefits; and requesting a writ of mandamus to compel Sheriff Lopez to comply with section 52e and continue to pay her maximum salary until the earlier of the expiration of his term of office or her incapacity ends. Appellees filed a plea to the jurisdiction, which the trial court granted without stating its grounds.

STANDARD OF REVIEW

We review de novo the district court's ruling on a plea to the jurisdiction. See State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In a plea to the jurisdiction, the movant has the burden of establishing that the facts pleaded by the plaintiff are insufficient to convey jurisdiction, or are fraudulent or in bad faith for the purposes of conveying jurisdiction on the trial court. Dewhurst v. Gulf Marine Inst. of Tech., 55 S.W.3d 91, 97 (Tex. App.--Corpus Christi 2001, pet. denied). In its plea, appellees alleged the trial court was without jurisdiction because (1) there was no justiciable issue; (2) Barclay's claims were barred by the doctrines of res judicata and collateral estoppel; and (3) Barclay failed to exhaust her administrative remedies under Local Government Code section 158.037, thus a suit for declaratory judgment was improper.

FINALITY OF COMMISSION'S DECISION

Appellees' plea to the jurisdiction relies on its assumption that the Commission's decision was final. See Mower v. Boyer, 811 S.W.2d 560, 562 (Tex. 1991) (both collateral estoppel and res judicata require a final judgment); Tex. Loc. Gov't Code Ann. 158.037(a) (Vernon 1999) (providing for appeal of a "final decision"). While the parties have treated the decision as final, we disagree with this characterization.

Local Government Code section 158.037 allows an employee "who, on a final decision by the commission, is demoted, suspended, or removed from a position" to appeal the decision by filing a petition in district court. Tex. Loc. Gov't Code Ann. 158.037(a) (Vernon 1999). Section 158.037(a) does not define what constitutes a "final decision." The Texas Supreme Court has defined a final agency order as one (1) that is definitive; (2) promulgated in a formal manner; (3) with which the agency expects compliance; and (4) that imposes an obligation, denies a right, or fixes some legal relationship as a consummation of the administrative process. Texas-New Mexico Power Co. v. Texas Indus. Energy Consumers, 806 S.W.2d 230, 232 (Tex. 1991). Applying these guidelines here, we conclude, after reviewing the record of the Commission hearing, that the Commission's decision is not final.

When Barclay first appealed to the Commission, she asked that the Commission allow her to go to independent doctors to determine whether she was fit for duty. However, at the first of two Commission hearings, Barclay's counsel announced she was changing her request because the prognosis of her carpal tunnel syndrome was that the condition was not improving; therefore, she was now asking for her full salary under section 52e. The Commission recessed the hearing to allow the parties to prepare arguments on this request.

The transcript of the second hearing begins with this statement by an unidentified speaker: "This is to determine (inaudible) to send Ms. Barclay to three physicians." At the conclusion of this hearing, an unidentified commissioner seconded another unidentified commissioner's motion as follows:

I'm going to move that - the commission deny Mrs. Barclay's claim pursuant to Article 3, Section 52(e) . . . and that pursuant to the Section 2.61 and 2.62, the civil service commission will select a panel of three physicians for Mrs. Barclay to have the option of being examined within 30 days after her receipt of the notification of those physicians by the commission.The record contains a copy of a letter, following the hearing, from the Commission to Barclay in which it states Barclay has the option of being evaluated by three physicians or psychiatrists to determine her fitness for duty. The record also contains a copy of a letter from Barclay's attorney to the Commission stating that Barclay will make appointments with the three doctors designated by the Commission.

Thus, the Commission's decision denied Barclay's "claim" under section 52(e), but allowed her to proceed with a fitness-for-duty evaluation before three doctors. This is an interlocutory ruling because it leaves unresolved her status as either fit for duty or incapacitated. Also, contrary to Barclay's argument on appeal, nothing in the Commission's decision indicates that it was based upon her failure to satisfy one or more of the requirements a law enforcement officer must meet under section 52e to establish an entitlement to full salary. The Commission did not affirmatively and unambiguously determine whether carpal tunnel syndrome is an "injury" encompassed within the scope of section 52e, that Barclay developed the syndrome in the course of her official duties, or that she is incapacitated as a result of the syndrome. See Tex. Const. art. III, 52e. Because the Commission's decision is not final, we hold that appellees did not establish that Barclay's suit was barred by the doctrines of res judicata or collateral estoppel or because she did not first exhaust her administrative remedies. Appellees' argument that Barclay's claim was barred under the Declaratory Judgment Act was premised entirely on its assertion that Barclay was required to exhaust her administrative remedies. Because appellees did not establish a "final decision" from which Barclay could appeal, this argument likewise provides no basis for granting the plea. (2)

CONCLUSION

The grounds upon which appellees based their plea to the jurisdiction did not establish that the trial court was without jurisdiction. Therefore, we reverse the trial court's order of dismissal and remand the cause to the trial court.

Sandee Bryan Marion, Justice

1. Section 52e provides: "Each county in the State of Texas is hereby authorized to pay all medical expenses, all doctor bills and all hospital bills for Sheriffs, Deputy Sheriffs, Constables, Deputy Constables and other county and precinct law enforcement officials who are injured in the course of their official duties; providing that while said Sheriff, Deputy Sheriff, Constable, Deputy Constable or other county or precinct law enforcement official is hospitalized or incapacitated that the county shall continue to pay his maximum salary; providing, however, that said payment of salary shall cease on the expiration of the term of office to which such official was elected or appointed. Provided, however, that no provision contained herein shall be construed to amend, modify, repeal or nullify Article 16, Section 31, of the Constitution of the State of Texas." Tex. Const. art. III, 52e.

2. The appellees' contention that there is no justiciable issue here because any amount Barclay could receive under section 52e is more than offset by the amount she received as worker's compensation benefits is without merit. The Workers' Compensation Code reduces benefits paid to law enforcement officials who receive their maximum salary under section 52e. Frasier v. Yanes, 9 S.W.3d 422, 425 (Tex. App.--Austin 1999, no pet.); Tex. Lab. Code Ann. 504.051(a)(2) (Vernon 1996). "Salary payments under section 52e are mandatory and may not be reduced." Frasier, 9 S.W.3d at 425.