DALLAS COUNTY SHERIFF'S DEPARTMENT, Appellant v. ADOLPHUS SMITH, Appellee

Reversed and Rendered Opinion filed November 13, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01492-CV
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DALLAS COUNTY SHERIFF'S DEPARTMENT, Appellant
V.
ADOLPHUS SMITH, Appellee
 
.................................................................
On Appeal from the 95th District Court
Dallas County, Texas
Trial Court Cause No. 86-15623-D
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O P I N I O N
                        Before Justices Stewart, Lagarde and Burnett
Opinion By Justice Stewart
                 Dallas County Sheriff's Department appeals a jury verdict in favor of appellee, J. Adolphus Smith, awarding damages for the Department's failure to promote him. Smith filed suit in district court after the Dallas County Sheriff's Department Civil Service Commission found that it did not have jurisdiction to hear his grievance. In eleven points of error, the Department challenges the district court's jurisdiction and its award of damages. We deal only with the district court's jurisdiction, since we find that it is dispositive of this appeal. We reverse and render.
        Smith, a deputy in the Sheriff's Department, applied to be promoted to the rank of sergeant and participated in the Department's testing procedures. The test was threefold: a written test, a performance appraisal, and an oral evaluation. Smith outscored all other applicants on the written test. Three days after the written test, but prior to the performance appraisal and oral evaluation, Smith was ordered by Sergeant Ben Lancaster, his supervisor, to write a thirty-day performance evaluation on his partner. Smith pointed out to Sergeant Lancaster that no deputy had ever been so instructed, and he refused to follow the order, because he believed that it was against Department policy. Smith later complied with the order and restated his objections to Sergeant Lancaster's order. Meanwhile, Sergeant Lancaster charged Smith with insubordination. When the threefold test results were posted, Smith was ranked in the third out of four groups; only applicants ranked in the top two groups eventually were promoted to sergeant.
        Smith believed that his score on the subsequent performance evaluation was improperly influenced by Sergeant Lancaster's charge of insubordination. After the final test results were posted, Smith filed a grievance with the Commission to contest his final placement on the promotion list. The Commission convened to hear Smith's grievance. The Commission, without receiving evidence or hearing testimony, decided that it did not have jurisdiction "to review the subjective thoughts or decisions of the members of the oral board on promotions." Smith appealed ab initio to the district court, which conducted a trial de novo on the merits of Smith's grievance. The jury found that the insubordination charge against Smith was improper, that it had influenced Smith's performance evaluation but not his oral evaluation, and that the Department's treatment of Smith was discriminatory. The jury awarded Smith $120,750 in back pay, compensatory damages, punitive damages, and attorney's fees.
        In its first three points, the Department contends that the district court erred in assuming jurisdiction over Smith's complaint. The Department argues that the district court had no subject matter jurisdiction over this case, because there is no affirmative showing in the record that jurisdiction is proper. In his petition, Smith invoked jurisdiction pursuant to: (1) article 5, section 8 of the Texas Constitution; (2) article 1908 of Vernon's Annotated Civil Statutes (Repealed; now Texas Government Code section 24.008);
and, (3) chapter 7, section 7.25 of the Commission's Rules and Regulations.
        Article 5, Section 8 of the Texas Constitution provides that the district court has, "exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body." Section 158.035 of the Texas Local Government Code provides that the Commission shall adopt, publish, and enforce rules regarding, inter alia, promotions and grievance procedures. Tex. Local Gov't. Code Ann. § 158.035 (3) and (6)(Vernon 1988). By enacting this statute, the legislature has conferred jurisdiction of these matters on the Commission and, thus, has deprived the district court of original jurisdiction of this matter. Further, the district court's appellate jurisdiction over the subject matter within the Commission's jurisdiction is limited by section 158.037 of this code to a review of the Commission's final decisions resulting in an employee's being demoted, suspended, or removed from a position.
        Smith argues that the district court has appellate jurisdiction because the Department's failure to promote him was tantamount to a demotion since he would have been promoted absent the improper actions of Sergeant Lancaster in issuing a disciplinary insubordination charge against him. We disagree. Smith's pleadings clearly demonstrate that his causes of action are predicated on denial of promotion, which is not a matter subject to review by the district court. Id.
        Smith also relies on section 24.008 of the Texas Government Code as support for the district court's original jurisdiction. That section reads: "The district court may hear and determine any cause that is cognizable by courts of law or equity and may grant any relief that could be granted by either courts of law or equity." Because the legislature has conferred jurisdiction over the subject matter of this case on an administrative body, original jurisdiction of the cause is not "cognizable by courts of law or equity."
        Finally, Smith relies on chapter 7, section 7.25 of the Dallas County Sheriff's Department Civil Service Rules and Regulations to support the district court's jurisdiction. Although the Commission's rules and regulations were not admitted in evidence, we note that the Commission may not enlarge its rule making authority beyond those areas authorized by the legislature. Gerst v. Oak Cliff Savings & Loan Ass'n, 432 S.W.2d 702, 706 (Tex. 1968). The Sheriff's Department Civil Service System Act, Tex. Local Gov't. Code Ann. §§ 158.031-158.040 (Vernon 1988), mentions a district court only in relation to appeals of the Commission's final decisions demoting, suspending or removing an employee. Thus, any Commission rule purporting to expand that appellate jurisdiction, or otherwise to allow an employee to invoke the district court's jurisdiction, would be unauthorized. Id. Consequently, we conclude that appellant's reliance on the Commission's rules and regulations to support the trial court's original jurisdiction in this case is misplaced.         
        Nevertheless, Smith maintains that the Commission abdicated its responsibility to hear a grievance properly before it, leaving Smith with no alternative other than an appeal ab initio to the district court. We disagree that Smith's only alternative was a trial on the merits in district court. The district court had jurisdiction to review the Commission's decision that it could not hear grievances concerning promotions. Courts generally may review only the final actions of an administrative agency. Mahon v. Vandygriff, 578 S.W.2d 144, 147 (Tex. Civ. App.--Austin 1979, writ ref'd n.r.e.); City of Houston v. Turner, 355 S.W.2d 263, 264 (Tex. Civ. App.--Houston 1962, no writ). The Commission's decision that it did not have jurisdiction over Smith's complaint was an appealable final action since there were no matters held open for further decision. Mahon, 578 S.W.2d at 147; Houston, 355 S.W.2d at 264. The district court would not be bound by the Commission's assessment of its jurisdiction since it is a question of law. Administrative determinations of questions of law are subject to judicial review, and a court may substitute its own judgment as to the law. Pension Board of Police Officers Pension System of Houston v. Colson, 492 S.W.2d 307, 309 (Tex. Civ. App.--Beaumont 1973, writ ref'd n.r.e.).
        However, the scope of judicial review of an administrative action is limited to the issue decided by the agency. Barbour v. Dist. Dir. of I & N S, 491 F.2d 573 (5th Cir. 1974), cert denied, 419 U.S. 873. The Commission's decision was limited to its finding that it did not have jurisdiction over Smith's complaint. Smith did not ask the district court to decide whether the Commission's jurisdictional decision was proper. Instead, Smith convinced the district court to withdraw its previous order, abating the suit and remanding to the Commission for an evidentiary hearing, and to proceed solely in the district court. When the district court conducted a trial de novo on the merits of Smith's complaint, it exceeded its limited scope of jurisdiction. The district court could have received evidence regarding the Commission's jurisdiction and could have remanded the matter if the Commission had erroneously decided not to hear Smith's grievance.
        Smith argues that, since district courts have jurisdiction over decisions of the Commission, they should also have ab initio jurisdiction if no decision is reached. He asserts that the Commission cannot prevent a court from hearing a matter properly before the Commission by not reaching a decision. Smith's argument erroneously assumes that the Commission did not reach a decision. The Commission clearly reached a decision that it lacked jurisdiction over grievances involving promotions. As previously stated, this jurisdictional decision was appealable to the district court.
        Smith also insists that his action in district court was more than an appeal of the Commission's decision.        He contends that under article 5, section 8 of the Texas Constitution a district court has original general jurisdiction to determine that the actions of an administrative body affected his constitutional or property rights. See Spring Indep. School Dist. v. Dillon, 683 S.W.2d 832, 836 (Tex. App. -- Austin 1984, no writ). When a vested property right has been adversely affected by action of an administrative body, so as to invoke the protection of due process under the Texas or federal constitutions, an inherent right of appeal is recognized. City of Amarillo v. Hancock, 239 S.W.2d 788, 790 (Tex. 1951), cited with approval in Brazosport Sav. & Loan Assn v. American Sav. & Loan Assn, 342 S.W.2d 747, 750 (Tex. 1961). Smith, by alleging that the Department's failure to promote him was tantamount to a demotion, appears to argue that he had a vested property right in being promoted to sergeant. To have a property interest protected by the due process clause of the federal and state constitutions, a person must have a legitimate claim of entitlement. See Board of Regents v. Roth, 408 U.S. 564, 578 (1976); Alford v. State, 738 S.W.2d 312, 315 (Tex. App. -- Dallas 1987, no writ). State law determines whether a person has a property right protected by due process. Bradford v. Edelstein, 467 F. Supp. 1361, 1368 (S.D. Tex. 1979). See Bishop v. Wood, 426 U.S. 341, 345 (1976). A person's interest in a benefit or entitlement is a property interest protected by the requirements of due process if there are rules or explicit understandings that support the person's claim to the benefit or entitlement. Bradford, 467 F.2d at 1368, citing Perry v. Sinderman, 408 U.S. 593, 601 (1972). Smith has not cited, nor have we found, any state law giving Smith an entitlement to this promotion. The threefold promotion testing procedure supports the conclusion that Smith did not have a vested property right. At most, Smith had an expectancy of a promotion.         
        Smith also appears to allege that his liberty interest was violated by the Department's failure to promote him. Smith alleges that the Department's failure to promote him caused him loss of reputation, status, and esteem of his colleagues. The Supreme Court has held that reputation alone is not a liberty interest that is protected by due process. See Paul v. Davis, 424 U.S. 693, 702, 713 (1976). Smith has not alleged that the Department, in failing to promote him, imposed any stigma that foreclosed his freedom to reapply for promotion to sergeant or to take advantage of other employment opportunities. See Alford, 738 S.W.2d at 317. We conclude that Smith did not show that he has a liberty interest protected by the due process clause.
        We have examined the record to determine whether Smith's petition alleged any other cause of action upon which the district court's original jurisdiction could have been based. First, the Commission on Human Rights Act, 15 Tex. Rev. Civ. Stat. Ann. art. 5221k (Vernon 1987), secures employees from certain discriminatory employment practices, including those based on race. However, Smith has not alleged a cause of action under this Act since he did not follow the complaint procedures set forth therein. 15 Tex. Rev. Civ. Stat. Ann. art. 5221k, section 6.01 (Vernon 1987). The Commission on Human Rights Act requires an investigation and decision by the Human Rights Commission as to whether there has been any unlawful employment practice; a complainant seeks judicial action after he has exhausted his administrative remedies. Id. The legislature has conferred original jurisdiction on discriminatory employment practices on an administrative body and, thus, has deprived the district court of original jurisdiction of this claim. Tex. Const. Art. V, Sec. 8.
        Second, State law prohibits an officer or employee of the State or of a political subdivision of the State, when acting or purporting to act in his official capacity, from refusing to grant a benefit to, or imposing an unreasonable burden upon, a person because of race. Tex. Civ. Prac. & Rem. Code Ann. §106.001 (Vernon 1986). Section 106.002(a) provides that an aggrieved person may sue for preventive relief, including application for a permanent or a temporary injunction, a restraining order, or other order. Tex. Civ. Prac. & Rem. Code Ann. §106.002(a)(Vernon 1986). Smith has not appealed the trial court's denial of injunctive relief. Even if the court had awarded injunctive relief, section 106.002(b) only allows the court, in its discretion, to award the prevailing party a reasonable attorney's fee; it does not provide for the award of back wages, compensatory damages, or punitive damages that Smith received. Tex. Civ. Prac. & Rem. Code Ann. § 106.002(b)(Vernon 1986).
        Finally, to establish a claim under title 42, section 1983 of the United States Code, the plaintiff must have been deprived of federally protected rights, privileges, or immunities as a result of state action. Triplett v. Azordegan, 570 F.2d 819, 822 (8th Cir. 1978). See also Parratt v. Taylor, 415 U.S. 527 (1981); Bradford, 467 F. Supp. at 1368 (S.D. Tex. 1979). Thus, the threshold requirement in virtually every section 1983 action is to identify which Constitutional right the plaintiff seeks to vindicate. Ryan v. Burlington County, 674 F. Supp. 464, 476 (D. N.J. 1987) As discussed above, Smith did not show that he had a property right or a liberty interest protected by the due process clause of the Fourteenth Amendment. Therefore, we find that Smith failed to set forth a prima facie case of discrimination under section 1983. Accordingly, the Department's first three points are sustained. Since judicial action without jurisdiction is void, we reverse the district court's award of damages, attorney's fees, and its order that Smith be promoted to sergeant. Cleveland v. Ward, 285 S.W. 1063 (Tex. 1926).
        The judgment of the trial court is reversed and judgment is rendered that plaintiff take nothing.
 
 
 
                                                          
                                                          ANNETTE STEWART
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
881492F
 
 
File Date[11-13-89]
File Name[881492F]