City of Dallas, David O. Brown, in his official capacity as the Dallas Police chief; and Eddie Burns, in his official capacity as Chief of Dallas Fire-Rescue v. Dallas Black Firefighters' Association, et al

 
REVERSE and REMAND; Opinion Filed October 20, 2011.
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-11-00165-CV
............................
 
CITY OF DALLAS, DAVID O. BROWN, IN HIS OFFICIAL CAPACITY AS DALLAS
POLICE CHIEF, AND EDDIE BURNS, IN HIS OFFICIAL CAPACITY AS DALLAS
FIRE-RESCUE CHIEF, Appellants
 
V.
 
DALLAS BLACK FIRE FIGHTERS ASSOCIATION, BLACK POLICE ASSOCIATION OF
GREATER DALLAS, NATIONAL LATINO PEACE OFFICERS ASSOCIATION GREATER
DALLAS CHAPTER, DALLAS FRATERNAL ORDER OF POLICE LODGE 588, DALLAS
POLICE ASSOCIATION, DALLAS HISPANIC FIREFIGHTERS ASSOCIATION, AND DALLAS
FIRE FIGHTERS ASSOCIATION, Appellees
 
.............................................................
On Appeal from the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 11-0417
.............................................................
OPINION
Before Justices Moseley, Lang, and Myers
Opinion By Justice Lang
 
In this interlocutory appeal, appellants City of Dallas; David
O. Brown, in his official capacity as Dallas police chief; and Eddie
Burns, in his official capacity as Dallas fire-rescue chief
(collectively, the “City”) challenge the trial court's denial of their
plea to the jurisdiction respecting a “Rule 202 Petition to Investigate
Claim” (the “Petition”) filed by appellees, a group of police and
firefighter associations (collectively, the “Associations”). See
Footnote 1 In five issues, the City contends the trial court erred by
 
denying its plea to the jurisdiction because the trial court does not
have subject matter jurisdiction for the Petition. Specifically, the
City asserts (1) the Associations do not have a valid underlying claim
against the City under section 147.007(b) of the Texas Local Government
Code, see Tex. Loc. Gov't Code Ann. § 147.007(b) (West 2008); (2) rule
202 of the Texas Rules of Civil Procedure is not a waiver of sovereign
immunity, see Tex. R. Civ. P. 202; (3) the Associations do not have
“common-law” or “statutory” standing; and (4) the Associations'
complaints are not ripe.
For the reasons below, we reverse the trial court's denial of
the City's plea to the jurisdiction and remand this case to the trial
court to allow the Associations an opportunity to amend the Petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
In the Petition, which was filed on January 13, 2011, the
Associations sought to depose the Dallas police chief and fire-rescue
chief “for the purpose of ascertaining the propriety of filing
litigation against the City of Dallas.” See Footnote 2 The
Associations stated in the Petition, “While the Petitioners anticipate
that a lawsuit may be filed, they desire to conduct the requested
depositions as part of the Petitioners' investigation as to which claims
are appropriate.” Further, the Associations stated, “This request is not
made for the purpose of harassment, but simply to allow Petitioners to
make a quick determination as to whether meritorious claims exist and
the appropriate parties for same.” The Associations alleged in
 
the Petition that on approximately August 11, 2010, the City and the
Associations entered into a “Meet & Confer Agreement” (the “Agreement”)
that “sets forth various agreements as to working conditions, benefits,
wages, and other matters affecting the employment relationship between
the City and its police officers and firefighters.” According to the
Associations,
[T]he [Agreement] sets forth agreements by the City that police officers
and firefighters would be allowed overtime hours for the Super Bowl and
other grant- funded and reimbursed work. The City also agreed that
“Special Events,” which are regulated under City Code Chapter 42A, would
be required “to use off-duty Dallas Police Officers and Fire-Rescue
personnel.”
The Associations complained “it now appears that the City has
ignored, and intends to continue to ignore, its agreements under the
[Agreement]” by utilizing on-duty Dallas police officers and fire-rescue
personnel at events that “should be worked by off-duty officers under
the terms of the [Agreement] and the City Code.” Additionally, the
Associations asserted, “if the City has received funds to pay for
overtime use of officers from private entities, its failure to
appropriately utilize such funds for their intended purpose must be
investigated to determine if City police and firefighters, the intended
beneficiaries, have viable claims for these funds.” The Associations
contended the acts set forth in the Petition “may be in violation of the
[Agreement] and the City's obligations under [the Texas Local Government
Code].”
 
With respect to the testimony they expected to elicit, the
Associations stated that each of two persons they sought to depose “is
responsible for directing his command staff to engage in activity
contrary to normal City procedures in the context of off-duty jobs, and
possibly in violation of the City's agreements in the [Agreement] and
State law, which will affect the City personnel represented under the
[Agreement] by the Petitioners.” The Associations contended the
requested depositions were “needed to ascertain the nature and extent of
Petitioners' possible claims.”
Finally, the Associations stated in the Petition (1)
“Petitioners as the formally recognized representative of Dallas police
officers and firefighters under the [Agreement], have an interest in
potentially bringing claims against the City of Dallas, which may
include breach of contract and declaratory judgment, as well as
equitable and/or injunctive relief” and (2) the City's governmental
immunity from suit has been waived under section 147.007(b) of the local
government code. See Tex. Loc. Gov't Code Ann. § 147.007(b) (providing
state district court has jurisdiction on application of party aggrieved
by “action or omission” related to “right, duty or obligation” provided
by certain written agreements).
On January 28, 2011, the City filed a “Plea to the Jurisdiction
and Response to Petitioners' Rule 202 Petition.” As grounds for its plea
to the jurisdiction, the City contended the Petition should be dismissed
for want of jurisdiction because (1) a review of the language of the
 
Agreement demonstrates the Associations have not alleged an action or
omission by the City that is related to a right, duty, or obligation
under the Agreement such that the trial court would have jurisdiction
pursuant to section 147.007(b) of the local government code, (2) the
Associations do not have standing to bring a breach of contract claim
that is not valid or to complain about the City's allocation of funds,
and (3) the Associations' claims are not ripe.
Following a hearing, the trial court signed an order in which it
denied the City's plea to the jurisdiction and “ORDERED, ADJUDGED, and
DECREED that the Petitioners' Rule 202 Petition to Investigate Claim is
ALLOWED TO GO FORWARD.” (emphasis original). This interlocutory appeal
timely followed. See Footnote 3 See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(8) (West 2008) (allowing for interlocutory appeal of order
denying plea to jurisdiction by governmental unit).
II. DENIAL OF CITY'S PLEA TO THE JURISDICTION
 
 
A. Standard of Review and Applicable Law
 
Whether a trial court has subject matter jurisdiction is a
matter of law that is reviewed de novo. Tex. Dep't of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004); Tex. Natural Res.
Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Robinson
v. Neeley, 192 S.W.3d 904, 907 (Tex. App.-Dallas 2006, no pet.). In
performing this review, an appellate court does not look to the merits
of the case, but considers only the pleadings and evidence relevant to
the jurisdictional inquiry. See Miranda, 133 S.W.3d at 227; Cnty. of
 
Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
A party may challenge the trial court's subject matter
jurisdiction by filing a plea to the jurisdiction. Miranda, 133 S.W.3d
at 225-26. When such a plea challenges the claimant's pleadings, we
determine whether the claimant has pleaded facts that affirmatively
demonstrate the trial court's jurisdiction. Id. at 226. We construe the
pleadings liberally in favor of the plaintiff and look to the pleader's
intent. Id. (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 446 (Tex. 1993)); see also Tex. R. Civ. P. 45 (“All
pleadings shall be construed so as to do substantial justice.”). If the
pleadings do not allege facts sufficient to affirmatively demonstrate
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. See Miranda, 133 S.W.3d at
226-27; see also Clifton v. Walters, 308 S.W.3d 94, 98 (Tex. App.-Fort
Worth 2010, pet. denied); City of Austin v. Leggett, 257 S.W.3d 456, 461
(Tex. App.-Austin 2008, pet. denied). If the pleadings affirmatively
negate jurisdiction, the plea should be granted. See Miranda, 133
S.W.3d at 227; Leggett, 257 S.W.3d at 461. Under the common-law
doctrine of sovereign immunity, the state cannot be sued without its
consent. City of Houston v. Williams, No. 09-0770, 2011 WL 923980, at *3
(Tex. Mar. 18, 2011) (citing Tooke v. City of Mexia, 197 S.W.3d 325, 331
(Tex. 2006)). Governmental immunity operates like sovereign immunity to
 
afford similar protection to subdivisions of the state, including
counties, cities, and school districts. Harris Cnty. v. Sykes, 136
S.W.3d 635, 638 (Tex. 2004) (citing Wichita Falls State Hosp. v. Taylor,
106 S.W.3d 692, 694 n.3 (Tex. 2003)); Learners Online, Inc. v. Dallas
Indep. Sch. Dist., 333 S.W.3d 636, 641-42 (Tex. App.-Dallas 2009, no
pet.). Like sovereign immunity, governmental immunity has two
components: immunity from liability, which bars enforcement of a
judgment against a governmental entity, and immunity from suit, which
bars suit against the entity altogether. Tooke, 197 S.W.3d at 332.
Governmental immunity from suit deprives a trial court of subject matter
jurisdiction and is properly asserted in a plea to the jurisdiction. See
Miranda, 133 S.W.3d at 225-26.
“[E]ven if the State acknowledges liability on a claim, immunity
from suit bars a remedy until the Legislature consents to suit.”
Learners Online, 333 S.W.3d at 642 (quoting Ben Bolt-Palito Blanco
Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas.
Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006)). The plaintiff
bears the burden of pleading facts affirmatively demonstrating waiver of
immunity from suit. See, e.g., City of Irving v. Seppy, 301 S.W.3d 435,
443 (Tex. App.-Dallas 2009, no pet.). It is settled in Texas that for
the Legislature to waive the State's sovereign immunity, a statute or
resolution must contain a clear and unambiguous expression of the
Legislature's waiver of immunity. See Tex. Gov't Code Ann. § 311.034
(West Supp. 2010); Taylor, 106 S.W.3d at 696.
 
Chapter 147 of the Texas Local Government Code is titled “Local
Control of Firefighter and Police Officer Employment Matters in Certain
Municipalities with Population of One Million or More.” See Tex. Loc.
Gov't Code Ann. §§ 147.001-.011 (West 2008 & Supp. 2010). Section
147.007(b) of that chapter provides in relevant part
A state district court of the judicial district in which a majority of
the population of the municipality is located has full authority and
jurisdiction on the application of either party aggrieved by an action
or omission of the other party when the action or omission is related to
a right, duty, or obligation provided by any written agreement ratified
as required by this chapter.
Id. § 147.007(b).
Under Texas Rule of Civil Procedure 202.1(b), a person may
petition the court for an order authorizing the taking of a deposition
on oral examination or written questions “to investigate a potential
claim or suit.” Tex. R. Civ. P. 202.1(b). Pre-suit discovery pursuant to
rule 202 “is not an end in itself,” but rather “is in aid of a suit
which is anticipated” and “ancillary to the anticipated suit.” In re
Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (per curiam) (quoting Office
Emps. Int'l Union Local 277, AFL-CIO v. Sw. Drug Corp., 391 S.W.2d 404,
406 (Tex. 1965)); accord Lee v. GST Transp. Sys., L.P., 334 S.W.3d 16,
19 (Tex. App.-Dallas 2008, pet. denied). A rule 202 petition must “state
the subject matter of the anticipated action, if any, and the
petitioner's interest therein.” Tex. R. Civ. P. 202.2(e).
 
B. Analysis
1. Immunity Not Waived by Rule 202
 
 
We begin with the City's third issue, in which it contends the
trial court does not have subject matter jurisdiction for the Petition
because rule 202 “is not a waiver of sovereign immunity.” See Footnote
4 The City asserts
Section 147.007 does not contemplate that the parties to the agreement
can bring an action to investigate the existence of claims based on the
contract. The court is only given the jurisdiction to enforce the
agreement for an act or omission that involves a right, duty or
obligation under the contract. The Rule 202 procedure is not the
enforcement of the agreement.
(citation to statute omitted). Further, the City argues (1) “[t]he very
nature of this 202 Petition is that the Associations do not have a
grievance or know of a grievance with the City” and (2) “[t]he
Associations, by filing the Rule 202 petition, admit that they have no
evidence that they are aggrieved by an act or omission of the City
related to a right, duty or obligation under the Agreement.”
Additionally, the City asserted during oral submission before this Court
that, in accordance with such reasoning, a rule 202 deposition can never
be used to investigate a potential claim against a governmental entity
that has immunity from suit.
The Associations respond that “[s]ubject matter jurisdiction
exists to authorize a rule 202 deposition when it cannot be said that
the court would lack jurisdiction over the potential underlying claim.”
The Texas Constitution states, “The Supreme Court shall
promulgate rules of civil procedure for all courts not inconsistent with
 
the laws of the state as may be necessary for the efficient and uniform
administration of justice in the various courts.” Tex. Const. art. V, §
31(b); see also Centennial Ins. Co. v. Commercial Union Ins. Cos., 803
S.W.2d 479, 482 (Tex. App.-Houston [14th Dist.] 1991, no writ)
(rulemaking authority for Texas Rules of Civil Procedure is vested
exclusively in Supreme Court of Texas) (citing Beach v. Runnels, 379
S.W.2d 684, 686 (Tex. Civ. App.-Dallas 1964, writ ref'd)). Pursuant to
that authority, the supreme court has promulgated the Texas Rules of
Civil Procedure. See generally Tex. R. Civ. P. 1-822. Those rules
specifically provide they are not to be construed to (1) “enlarge or
diminish any substantive rights or obligations of any parties to any
civil action” or (2) “extend or limit the jurisdiction of the courts of
the State of Texas nor the venue of actions therein.” Tex. R. Civ. P.
815, 816. By contrast, Texas courts defer to the Legislature to
determine whether and to what extent immunity should be waived. See City
of Galveston v. State, 217 S.W.3d 466, 472-73 (Tex. 2007). Thus, the
fact that rule 202 does not provide for waiver of immunity is not
dispositive as to whether a rule 202 deposition can be used to
investigate a potential claim against a governmental entity that has
immunity from suit.
Rather, the rules of civil procedure, including rule 202,
provide a procedural mechanism “to obtain a just, fair, equitable and
impartial adjudication of the rights of litigants under established
principles of substantive law.” Tex. R. Civ. P. 1. The operation of that
 
mechanism was illustrated recently in Wolfe. See 341 S.W.3d at 932. In
that case, the Harris County Department of Education and four of its
seven trustees petitioned the trial court under rule 202 to order the
deposition of another trustee, Michael Wolfe, in order to investigate
suspected wrongdoing that might lead to a removal suit. Id. Wolfe
contended that only the county attorney had standing to seek discovery
that might lead to his ouster because by statute, “[t]he county attorney
shall represent the state in a proceeding for the removal of [a county]
officer” other than himself or the district attorney. Id. (quoting Tex.
Loc. Gov't Code Ann. § 87.018(d)). The trial court granted the petition
and ordered Wolfe's deposition, and the court of appeals denied Wolfe's
petition for mandamus. Id.
However, the supreme court granted Wolfe's petition for mandamus
and directed the trial court to vacate its order and dismiss the
proceeding. Id. at 933. The supreme court stated that without joinder of
the proper state official, the court does not have “jurisdiction to hear
and determine the cause.” Id. at 932. The court reasoned
The Department argues that the county attorney's joinder is not required
because a rule 202 proceeding is not a removal proceeding. But pre-suit
discovery “is not an end within itself”; rather it “is in aid of a suit
which is anticipated” and “ancillary to the anticipated suit.”
Id. at 933 (citations omitted).
Here, as described above, the City argues “[t]he Rule 202
procedure is not the enforcement of the agreement” and section
 
147.007(b) is therefore inapplicable. However, the pre-suit discovery
requested by the Associations “is not an end within itself,” but rather
is “in aid of a suit which is anticipated” and “ancillary to the
anticipated suit.” Id.; accord Lee, 334 S.W.3d at 19. Therefore, in
determining jurisdiction, we look to the substantive law respecting the
anticipated suit. See Wolfe, 341 S.W.3d at 933; City of Willow Park v.
Squaw Creek Downs, L.P., 166 S.W.3d 336, 340-41(Tex. App.-Fort Worth
2005, no pet.) (trial court had jurisdiction over plaintiff's rule 202
petition to investigate billing dispute and validity of lien filed by
city against plaintiff's property, where city conceded trial court would
have jurisdiction over any trespass to try title suit arising from its
lien); cf. In re Jorden, 249 S.W.3d 416, 420-22 (Tex. 2008) (because
Texas statute limits discovery in health-care lawsuits until after
plaintiff serves expert report, pre-suit depositions under rule 202 are
prohibited until after expert report is served).
We decide against the City on its third issue.
2. Waiver Pursuant to § 147.007(b)
 
In its second issue, the City contends the trial court does not
have subject matter jurisdiction for the Petition because “the
Associations do not have a valid underlying claim against the City under
section 147.007(b)” and waiver pursuant to that section is therefore
inapplicable. According to the City, “the Associations' complaints are
not sufficient to establish subject matter jurisdiction because the
complaints either do not establish a City act or omission that aggrieved
 
them, or they do not establish a right, duty or obligation under the
Agreement.” See Footnote 5
The Associations argue they “have articulated a claim that falls
within the clear-and- unambiguous waiver found in section 147.007(b).”
Additionally, they assert “[t]he City waived its immunity from suit when
it entered into a meet-and-confer agreement under Chapter 147.”
First, we address the Associations' contention that the City
waived its governmental immunity pursuant to section 147.007(b) by
entering into the Agreement. In support of that contention, the
Associations cite Texas A&M University-Kingsville v. Lawson, 87 S.W.3d
518 (Tex. 2002). In that case, a plurality of the supreme court
concluded that if a government entity agrees to settle a lawsuit from
which it is not immune, it cannot claim immunity from suit for breach of
the settlement agreement. Id. at 518. In so holding, the court reasoned
(1) “[o]nce the Legislature has decided to waive immunity for a class of
claims, the inclusion of settlements within the waiver is consistent
with that decision” and (2) “[t]he State should not regain waived
immunity by settling a case.” Id. at 522.
Lawson has been interpreted as applying only to settlement
contracts. See Slade v. Tex. S. Univ. Bd. of Regents, 232 S.W.3d 395,
399 (Tex. App.-Houston [1st Dist.] 2007, no pet.). Further, subsequent
to Lawson, the supreme court has stated that “[b]y entering into a
contract the State waives its immunity from liability but not its
immunity from suit.” Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist.,
 
212 S.W.3d at 324. In this case, the Agreement is not a settlement
contract pertaining to a lawsuit from which the City is not immune. See
Lawson, 87 S.W.3d at 518. Therefore, we conclude Lawson is inapposite.
Second, we consider whether waiver of immunity pursuant to
section 147.007(b) is otherwise applicable in this case. Under section
147.007(b), “[a] state district court . . . has full authority and
jurisdiction on the application of either party aggrieved by an action
or omission of the other party when the action or omission is related to
a right, duty, or obligation” provided by certain written agreements.
Tex. Loc. Gov't Code Ann. § 147.007(b).
The Agreement states, in relevant part,
The City regulates Special Events as described in City Code Chapter 42A,
which is currently being reviewed and revised. It is the City's
intention in the revision of Chapter 42A to require special event
permittees to use off-duty Dallas Police Officers and Fire-Rescue
personnel where lawfully possible. . . . See Footnote 6
Under article 4, section 1, of the Agreement, the City retains the
“sole, exclusive, and vested right, prerogative, power, and authority”
to manage the police and fire-rescue departments and workforce “in all
respects,” including, inter alia, “the right to assign and direct the
work of Officers, including the scheduling and assignment and
reassignment of duties, responsibilities and hours of work.” Article 10,
section 2, provides, in part, “[f]or the period from October 1, 2010
through March 31, 2012, the Parties agree that the City may compensate
 
Police Officers' and Firefighters' . . . overtime hours solely with
compensatory time in lieu of overtime compensation.” The only exceptions
to section 2 of article 10 are contained in section 3 of that article
and include, inter alia, “Super Bowl overtime hours” and “[g]rant-funded
and other reimbursed overtime hours.” Further, the Agreement provides in
article 18 that “[n]otwithstanding any provision in the entirety of this
Agreement, neither this Agreement nor any provision of this Agreement
makes any statute, ordinance, charter provision or other written rule,
order, or policy a contract or a contractual obligation.” The
City asserts three arguments in support of its contention that the facts
alleged by the Associations do not fall within the “contours” of section
147.007(b). First, the City contends the Associations “do not have a
breach of contract claim for a violation of Chapter 42A of the Dallas
City Code.” According to the City,
A plain reading of the Agreement demonstrates that it does not require
the City to immediately require special event permittees to use off-duty
Dallas police officers and fire-rescue personnel. It does not even
require the City to change the requirements of chapter 42A or to do so
by a certain date. . . .
Furthermore, nothing in the version of chapter 42A at the time
of the hearing or the Agreement prevents the City from assigning on-duty
officers to events if the City determines that officers are needed. . .
. Thus, the City cannot breach the Agreement by scheduling on-duty
officers to events.
 
(citations to record omitted). Moreover, the City argues, (1) “the
Dallas City Code in effect at the time of the plea to the jurisdiction
hearing did not even require permittees to hire only Dallas officers or
firefighters” and (2) pursuant to article 18 of the Agreement, “the
manner and method of implementing chapter 42A cannot be a breach of the
Agreement.”
Second, the City asserts the Associations “have not and cannot
state a breach of an obligation under the Agreement to pay overtime
hours for the Super Bowl and other grant-funded and reimbursed work.”
The City contends article 10 of the Agreement “simply provides how
compensatory time is to be calculated and when officers must be paid
overtime instead of receiving compensatory time.” According to the City,
the Associations “have not identified any right, duty or obligation of
the City under the Agreement to assign only officers and firefighters
eligible for overtime to grant-funded and reimbursed events.” Thus, the
City argues, it “cannot breach the Agreement by scheduling on-duty
officers during their regular 40-hour work week to events.”
Third, the City contends the Associations “do not have a breach
of Agreement claim for the City's decisions allocating resources.” The
City asserts the Associations “do not point to anywhere in the Agreement
that concerns how the City will allocate or otherwise spend the money
that it receives, nor do they point to any provisions concerning their
rights as third-party beneficiaries of money received by private
 
entities.” According to the City, “[t]he Agreement does not concern the
use of funds received from third parties or how the funds are to be
utilized.” Moreover, the city argues, “to the extent that the
Associations are alleging that the Agreement allows them to dictate how
the City uses those funds, such an agreement is unenforcable.”
“Rule 202 does not require a petitioner to plead a specific
cause of action; instead, it requires only that the petitioner 'state
the subject matter of the anticipated action, if any, and the
petitioner's interest therein[.]'” City of Houston v. U.S. Filter
Wastewater Grp., Inc., 190 S.W.3d 242, 245 n.2 (Tex. App.-Houston [1st
Dist.] 2006, no pet.) (quoting Tex. R. Civ. P. 202.2(e)). However, the
supreme court has stated there is “cause for concern about insufficient
judicial attention to petitions to take pre-suit discovery” and “judges
should maintain an active oversight role to ensure that [such discovery
is] not misused.” In re Does, 337 S.W.3d 862, 865 (Tex. 2011); accord
Wolfe, 341 S.W.3d at 933 (“[c]ourts must strictly limit and carefully
supervise pre-suit discovery to prevent abuse of the rule”). Further, in
certain contexts, the requesting party's burden is heightened with
respect to rule 202. See In re Rockafellow, No. 07-11-00066-CV, 2011 WL
2848638, at *4 (Tex. App.-Amarillo July 19, 2011, orig. proceeding)
(where requested rule 202 deposition would involve disclosure of trade
secret information, requesting party's burden under rule 202.2(e) is
heightened).
Here, the Associations have stated the “subject matter of the
 
anticipated action” and their “interest therein.” See Tex. R. Civ. P.
202.2(e). However, this case involves not only rule 202, but also
jurisdiction based on waiver of governmental immunity. As described
above, in determining jurisdiction, we look to the substantive law
respecting the anticipated suit. See Wolfe, 341 S.W.3d at 933; City of
Willow Park, 166 S.W.3d at 340-41. In this case, the substantive law
respecting the waiver of governmental immunity, section 147.007(b),
requires that the Association's rule 202 petition be sufficiently
specific to demonstrate the Associations were potentially “aggrieved”
under the Agreement. See Tex. Loc. Gov't Code Ann. § 147.007(b). We
cannot conclude the Petition satisfies that requirement. Therefore, we
decide in favor of the City on its second issue. Additionally, based on
the resolution of that issue, we decide in favor of the City on its
first issue. See Footnote 7 However, the Associations alleged
in the Petition that each of two persons they seek to depose “is
responsible for directing his command staff to engage in activity
contrary to normal City procedures in the context of off-duty jobs, and
possibly in violation of the City's agreements in the [Agreement] and
State law.” On this record, we cannot conclude the Petition
“affirmatively demonstrate[s] incurable defects in jurisdiction.” See
Miranda, 133 S.W.3d at 226. Therefore, the Associations should be
“afforded the opportunity to amend.” Id. at 227.
3. Standing and Ripeness
 
In its fourth and fifth issues, the City challenges the
 
“common-law” and “statutory” standing of the Associations and the
ripeness of their complaints. However, the City's contentions as to
standing and ripeness are based on the lack of (1) “an alleged grievance
related to a right, duty or obligation in the Agreement” or (2) a
showing that the Associations' complaint “differs from a claim that a
member of the general public might have.” In light of our conclusion
above that the Associations should be afforded the opportunity to amend
the Petition, we conclude the City's fourth and fifth issues are moot.
See Gen. Agents Ins. Co. of Am., Inc. v. El Naggar, 340 S.W.3d 552, 556
(Tex. App.-Houston [14th Dist.] 2011, no pet.) (issue may become moot
when party seeks ruling on matter which, when rendered, would not have
any practical legal effect on then-existing controversy).
III. CONCLUSION
 
We conclude the Petition does not affirmatively demonstrate the
trial court's jurisdiction, but does not affirmatively demonstrate
incurable defects in jurisdiction. Accordingly, the Associations are
given an opportunity to amend. We decide in favor of the City on its
first and second issues and against the City on its third issue. We need
not address the City's fourth and fifth issues.
We reverse the trial court's denial of the City's plea to the
jurisdiction and remand this case to the trial court for further
proceedings consistent with this opinion.
 
DOUGLAS S. LANG
JUSTICE
110165F.P05
-------------------
Footnote 1
Specifically, “Associations” as used herein refers collectively
 
to appellees Dallas Black Fire Fighters Association, Black Police
Association of Greater Dallas, National Latino Peace Officers
Association Greater Dallas Chapter, Dallas Fraternal Order of Police
Lodge 588, Dallas Police Association, Dallas Hispanic Firefighters
Association, and Dallas Fire Fighters Association.
-------------------
Footnote 2
Additionally, the Associations requested that the chiefs “be
required to bring with them all documents . . . in their possession,
custody and/or control” pertaining to services provided by Dallas police
officers and fire-rescue personnel for certain “Special Events.”
-------------------
Footnote 3
At the conclusion of the hearing on the City's “Plea to the
Jurisdiction and Response to Petitioners' Rule 202 Petition,” the trial
judge made oral findings that “the likely benefit of allowing the . . .
petitioners to take the requested depositions to investigate potential
claims outweighs the burden or expense of the procedure” and “allowing
the petitioners to take the requested depositions may prevent a failure
or delay of justice in an anticipated suit.” See Tex. R. Civ. P. 202.4
(addressing required findings and contents as to rule 202 orders).
Further, the trial judge stated “[t]he 202 is granted” and “[t]he Court
orders that the depositions be upon oral examination.” The record does
not contain an order authorizing the Associations to take the
depositions requested. See Tex. R. Civ. P. 202.2(h). However, to the
extent the Petition was “granted,” this appeal does not address any
 
matter respecting the trial court's rulings beyond jurisdiction. See IFS
Sec. Grp., Inc. v. Am. Equity Ins. Co., 175 S.W.3d 560, 563 (Tex.
App.-Dallas 2005, no pet.) (order pursuant to rule 202 allowing pre-suit
discovery incident to contemplated lawsuit against party from whom
discovery is sought is not final, appealable order).
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Footnote 4
The parties do not dispute that the City has governmental
immunity. To the extent the City uses the terms “sovereign immunity” and
“governmental immunity” interchangeably, we construe the issues in this
appeal to pertain to “governmental immunity.” See Sykes, 136 S.W.3d at
638.
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Footnote 5
The parties do not dispute that the Contract is a “written
agreement ratified as required” by chapter 147. See Tex. Loc. Gov't Code
Ann. § 147.007(b).
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Footnote 6
At the time the Agreement was executed, section 42A of the
Dallas City Code did not require permit holders to hire only Dallas
police officers or firefighters, nor did it make any mention of
“off-duty” status respecting such officers and personnel. See Dallas,
Tex., Code § 42A-12(a) (2006). On February 9, 2011, the code was amended
to provide, in relevant part,
The emergency medical personnel required to be provided at a special
event by this section must be sworn members of the Dallas fire-rescue
department, except that the chief of the Dallas fire-rescue department
may authorize a special event applicant or permit holder to provide
emergency medical personnel from other jurisdictions . . . . Off-duty
 
jobs for Dallas fire-rescue officers at a special event must comply with
the Dallas Fire-Rescue Rules and Regulations.
Id. § 42A-11.1(c) (2011). Additionally, the amended code stated
The police officers required to be provided at a special event by this
section must be sworn members of the Dallas police department, except
that the chief of the Dallas police department may authorize a special
event applicant or permit holder to provide peace officers from other
jurisdictions . . . . Off-duty jobs for Dallas police officers at a
special event must comply with the Dallas Police Department General
Orders and Code of Conduct.
Id. § 42A-12(c).
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Footnote 7
In its first issue, the City contends “[t]he trial court erred
in denying the plea to the jurisdiction.”
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