Armando Chapa, Darrell Newman and Mario Dominguez v. City of Floresville--Appeal from 218th Judicial District Court of Wilson County

MEMORANDUM OPINION

No. 04-05-00120-CV

Armando CHAPA, Darrell Newman, and Mario Dominguez,

Appellants

v.

THE CITY OF FLORESVILLE,

Appellee

From the 218th Judicial District Court, Wilson County, Texas

Trial Court No. 03-08-00360-CVW

Honorable Donna S. Rayes, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Rebecca Simmons, Justice

Delivered and Filed: November 9, 2005

AFFIRMED

Armando Chapa, Darrell Newman, and Mario Dominguez, former police officers for the City of Floresville (the City), sued the City for breach of contract, tortious interference with a business relationship, and defamation. The City filed a plea to the jurisdiction asserting sovereign immunity from suit, which the trial court granted, dismissing appellants suit. On appeal, the appellants contend 1) the City waived its sovereign immunity from suit by accepting the appellants performance under an alleged employment contract; and 2) the trial court erred by granting the City s plea to the jurisdiction without allowing the appellants an opportunity to amend their pleading. We affirm the trial court s judgment.

Background

Chapa, Newman, and Dominguez were police officers assigned to the City s 81st Judicial Narcotics Task Force. In the spring of 2002, the Texas Department of Public Safety acquired supervisory authority over the Judicial Narcotics Task Force and required the appellants, along with all members of the task force, to re-apply for their positions. Chapa and Dominguez re-applied, but Newman did not. None of the appellants were re-hired by the City, and their employment was terminated.

The appellants subsequently filed suit against the City for breach of contract, tortious interference with a business relationship, and defamation. Although the City had not expressly entered into an employment contract with the appellants, the appellants contended language in the City s employee policy manual created an employment contract: [a] regular employee may be dismissed for cause by the department supervisor with approval by the City Administrator. Similarly, the appellants relied on language in the City s police policy manual to argue the City designated them just cause employees and intended to limit its right to terminate police officers: [p]ersonnel of the Police Department...whose service has been ordered terminated for insufficient cause may appeal directly to the City Council.

In response, the City filed an original answer, denying the appellant s allegations and affirmatively asserting its entitlement to sovereign immunity from suit. The City subsequently filed a plea to the jurisdiction arguing the appellants failed to assert that a valid written contract existed and/or that [the City s] sovereign immunity was waived by legislative consent. The City attached copies of the manuals as evidence to its plea to the jurisdiction. The City argued that the manuals contained no express language limiting the City s right to terminate its employees at will, and that the City s decision to require undercover police officers to re-apply for their positions was a discretionary act of the City guarded by sovereign immunity. The appellants did not amend their original petition. After a hearing, the trial court granted the City s plea to the jurisdiction and dismissed the appellants claims against the City for lack of subject matter jurisdiction.

Standard of Review

The purpose of a plea to the jurisdiction 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. Id. Because subject matter jurisdiction is a question of law, we review a trial court s ruling on a plea to the jurisdiction under a de novo standard of review. Tex. Natural Res. Conservation Comm n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).

In determining whether subject matter jurisdiction exists, we look to the allegations in the pleadings, accept them as true, and construe them in favor of the pleader. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). We consider the facts alleged in the petition, and to the extent it is relevant to the jurisdictional issue, any evidence submitted by the parties to the trial court. Tex. Natural Res. Conservation Comm n v. White, 46 S.W.3d 864, 868 (Tex. 2001).

It is the plaintiff s burden to allege facts affirmatively demonstrating the trial court s jurisdiction. Tex. Ass n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Brown, 80 S.W.3d at 555. On the other hand, 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.

Discussion

The appellants concede their claims against the City for defamation and interference with business relationships are barred by sovereign immunity. They contend, however, that the City s policy manuals prove the existence of an employment contract, and that the City s conduct of accepting the appellants performance under the employment contract waived the City s immunity from suit. We disagree.

Sovereign immunity, unless waived, protects the State from lawsuits for damages. Gen. Servs. Comm n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). Sovereign immunity encompasses both immunity from suit and immunity from liability. Id. Immunity from suit bars a suit against the State unless the Legislature expressly gives consent to sue. Id. Immunity from suit thus defeats a trial court s subject matter jurisdiction. Tex. Dep t of Transp. v. Jones, 8 S.W.3d 636, 637-38 (Tex. 1999).

When the State enters into a contract with a private entity, it gives up its immunity from liability; however, the act of contracting does not waive the State s immunity from suit. Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 707 (Tex. 2003). Relying on a footnote in Federal Sign v. Texas Southern University, the appellants contend that the City waived immunity by its conduct of accepting the appellants performance under the contract. See 951 S.W.2d 401, 408 n.1 (Tex. 1997) ( There may be other circumstances where the State may waive its immunity by conduct other than simply executing a contract ), superceded by statute as stated in Little-Tex., 39 S.W.3d at 593. We disagree. Since Federal Sign, the Texas Supreme Court has declined to find any instances in which the State waived its immunity by its own conduct, and has reiterated that it is the Legislature s sole province to waive or abrogate sovereign immunity. IT-Davy, 74 S.W.3d at 857; see also id. ( Creating a waiver by conduct exception would force the State to expend its resources to litigate the waiver-by-conduct issue before enjoying sovereign immunity s protections-- and this would defeat many of the doctrine s underlying policies. ); Little-Tex, 39 S.W.3d at 597 (holding there is no waiver by conduct exception to sovereign immunity whereby a party can sue the State without first obtaining legislative consent under a statute).

Further, the appellants argument fails because the evidence offered in this case affirmatively negates the existence of any employment contract with the City. Absent a specific agreement to the contrary, there is a presumption in Texas that employment is at-will. Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998). An employee may rebut this presumption by proving the existence of an employment contract in which the employer has indicated a definite intent to be bound not to terminate the employment except under clearly specified circumstances. Id. at 503. In order to overcome the presumption of at-will employment, an employee manual must specifically and expressly limit the employer s right to terminate the employee. McAlister v. Medina Elec. Coop., Inc., 830 S.W.2d 659, 664 (Tex. App. San Antonio 1992, writ denied). It is not enough that the manual contains a list of censurable conduct; the manual s language must indicate that this list provides the exclusive grounds for termination. Id.

In this case the City s employee policy manual does not alter the at-will employment relationship. The employee policy manual states that an employee may be dismissed for cause and contains a list of censurable conduct, but the preceding paragraph expressly states that the City s right to terminate employees is not limited: the employee shall be notified in writing regarding the cause for dismissal...though charges may be based on causes other than those enumerated. (Emphasis added). Further, the preceding page of the employee policy manual contains disclaimer language advising employees that employment is at will:

All employees are at will, and as such, are free to resign at any time with or without reason. The City, likewise, retains the right to terminate employment at any time with or without reason or notice. Nothing contained in these guidelines is intended to be nor should be construed as a guarantee that employment will be continued for any period of time.

The employee policy manual therefore did not limit the City s right to terminate employees, and we reject the appellants contention that the employee policy manual constituted an employment contract.

Likewise, the City s police policy manual contains no express language specifically limiting the City s right to terminate police officers. The police manual provides that officers may be terminated for conviction of a felony, insubordination, commission of an offense that impairs service, repeated disciplinary actions, and unsuitability. However, there is no language confining the City s right to terminate police officers to the list of censurable conduct; this provision did not alter the at-will status of police officers.

The appellants also contend that the grievance procedures contained in the policy manuals abrogate the employment at-will presumption. We again disagree. The grievance procedures merely provide the process by which employees may present claims through the administration, and as such do not alter its employee s at-will status. See Renken v. Harris County, 808 S.W.2d 222, 225 (Tex.

App. Houston [14th Dist.] 1991, no writ) (stating that merely having grievance procedures does not alter an employee s at-will status; the employee manual must provide the exclusive means of firing).

Because the appellants did not have a contract with the City, we hold that the trial court did not err in granting the City s plea to the jurisdiction. The appellants first issue is overruled. Because the appellants petition contained incurable defects, we also overrule the appellants second issue. Brown, 80 S.W.3d at 555.

Conclusion

Based on the foregoing discussion, we affirm the trial court s judgment.

Catherine Stone, Justice