Nueces County, Texas, (Former) Commissioner Roy Hinojosa and (Former) County Judge Richard Borchard v. Mary Thornton ( 2004 )

    NUMBER 13-03-011-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

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  NUECES COUNTY, TEXAS, AND (FORMER)                                                

COMMISSIONER ROY HINOJOSA AND (FORMER)

COUNTY JUDGE RICHARD BORCHARD,                                Appellants,

v.

MARY THORNTON,                                                                       Appellee.  

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    On appeal from the County Court at Law No. 2

of Nueces County, Texas.

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  MEMORANDUM OPINION

Before Justices Hinojosa, Castillo, and Wittig   

Opinion by Justice Wittig

          This is an accelerated interlocutory appeal challenging the trial court’s subject matter jurisdiction by invoking sovereign immunity. The appellants are Nueces County, former county commissioner Roy Hinojosa, and former county judge Richard Borchard. The appellee is Mary Thornton. The trial court denied appellants’ plea to the jurisdiction, motion to dismiss, and motion for partial summary judgment. Appellants bring an interlocutory appeal from the trial court’s denial of their various motions. Appellee contests our jurisdiction to entertain certain aspects of the appeal. We affirm in part, and reverse in part, dismissing certain claims. We remand the case to the trial court for further proceedings.

                                                                  I

          Appellee was an employee of Nueces County, Commissioner Precinct 2, since 1991. Hinojosa was appointed to fill the unexpired term of the late Commissioner Berlanga on April 15, 1996. From this date forward, the facts are hotly disputed.

          Appellee alleged that on April 16, 1996, she was asked to engage in what she considered to be illegal campaign activities on county time. These allegations are denied. According to appellee, after her refusal to perform the prohibited acts, she was terminated and told to surrender her keys and identification card. Judge Borchard allegedly told appellee her position was eliminated.

          Appellee filed a grievance under the provisions of the Nueces County Civil Service Commission (the Commission) Rules and Regulations. After a hearing on January 10, 1997, the Commission disingenuously found, appellee suggests, that she had not been terminated but rather was wrongfully placed on vacation as of April 19, 1996. According to the Commission ruling, appellee was to be reinstated on January 13, 1997. For stated health reasons, appellee did not return to work and initiated this suit against appellants on February 7, 1997.

          Appellee’s petition was amended three times to expand and define the claims. The claims consisted of five causes of action including: (1) wrongful termination and appeal of the Commission decision; (2) damages for constitutional violations under 42 U.S.C. § 1983; (3) damages under the Whistleblower Act against the County; (4) damages under Sabine Pilot against the County; and (5) intentional infliction of emotional distress against the two individual appellants. Appellants’ various dilatory pleas were filed in response to appellee’s fourth amended original petition.

                                                                  II

          We review a trial court's ruling on a plea to the jurisdiction under a de novo standard of review; subject matter jurisdiction is a question of law. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Nueces County v. Ferguson, 97 S.W.3d 205, 213 (Tex. App.–Corpus Christi 2002, no pet.); City of Fort Worth v. Robles, 51 S.W.3d 436, 439 (Tex. App.–Fort Worth 2001, pet. denied). The appeal is limited to our review of the trial court's ruling on the plea to the jurisdiction. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2003); Ferguson, 97 S.W.3d at 213. To determine whether appellee has affirmatively demonstrated the court's jurisdiction to hear the case, 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); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). “Our task is not to decide the merits of the case but rather to examine the claims in the pleadings, taking as true the facts pled, and determine whether those facts support jurisdiction in the trial court.” Ferguson, 97 S.W.3d at 213; see Baston v. City of Port Isabel, 49 S.W.3d 425, 427-28 (Tex. App.–Corpus Christi 2001, pet. denied).

          As a general rule, government entities are immune from tort liability under the doctrine of sovereign immunity unless the legislature has waived immunity. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998).

                                                                  III

          In its first issue, the County contends the trial court lacks subject matter jurisdiction over appellee’s cause against the County for two reasons. First, the appeal of the Commission ruling was brought in county court, not district court. Second, appellee was not demoted, suspended, or removed by a final decision of the Commission.

          According to the County, the trial court lacks jurisdiction because of the restrictions of the local government code. That code provides that appeal of a civil service commission decision is to the district court. Tex. Loc. Gov’t Code Ann. § 158.012 (Vernon 1999). Appellee filed her appeal in county court.

          Appellee first counters that Nueces County courts have concurrent jurisdiction with the district courts. She cites section 25.1802 of the government code. Tex. Gov’t Code Ann. § 25.1802 (Vernon 2003). This section provides in part: “(a) In addition to the jurisdiction provided by Section 25.0003 and other law, and except as limited by Subsection (d), a county court at law in Nueces County has: (1) the jurisdiction provided by the constitution and by general law for district courts.” Id. Appellee also cites Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 447 (Tex. 1996) (there exists nothing in the statutory language to indicate an intent to expressly limit jurisdiction to district courts; therefore, the county court at law had subject matter jurisdiction). We agree and hold the county court has jurisdiction as provided by the constitution and the general laws for district courts.

          The more difficult challenge, which appellee fails to overcome, is from the language under section 158.012(a) limiting appellate review by a district (or here county) court to those who receive an adverse order from the Commission, i.e., demotion, suspension, or removal. Tex. Loc. Gov’t Code Ann. § 158.012(a) (Vernon 1999). The Commission ruling at issue held appellee was wrongfully placed on vacation and that she was not terminated. As correctly argued by the County, we already have specifically addressed this code requirement that only certain orders from the Commission are appealable in Alba v. Nueces County Sheriff's Department, 89 S.W.3d 132, 134 (Tex. App.–Corpus Christi 2002, pet. denied). There we held, according to the rules of construction, that we presume the words “demoted,” “suspended,” and “removed” were intended to have meaning and purpose. Id. “Their inclusion, therefore, clearly eliminates the possibility that all orders from the Commission are appealable to the district court.” Id. Because the Commission's final decision did not demote, suspend, or remove appellee from employment with the County, we hold that the trial court erred in not granting the County’s plea to the jurisdiction, insofar as the appeal of the Commission’s decision is concerned. See id.

          In the second issue, all three appellants assert the trial court lacks subject matter jurisdiction to entertain appellee’s section 1983 claims. Appellants first rely upon Quern v. Jordan, 440 U.S. 332, 341 (1979) (section 1983 does not abrogate the states’ sovereign immunity). However, Quern dealt with a state’s immunity from suit under the Eleventh Amendment of the United States Constitution. Id. at 340. Appellants also argue from Kimel v. Florida Board of Regents, 528 U.S. 62, 82-83 (2000) (Congress may not abrogate a state’s sovereign immunity by use of federal statute even in presence of congressional intent to do so under the Fourteenth Amendment). However, once again, Kimel dealt with an Eleventh Amendment issue and specifically holds that the ADEA does not validly abrogate the states' sovereign immunity from suit in federal court. Id. at 96. The federal district court’s dismissal of the state was thus approved. Id. Quizzically, appellants cite Hafer v. Melo, 502 U.S. 21 (1991). Our reading of that case shows that state officials, sued in their individual capacities, are "persons" within the meaning of section 1983. Id. at 31. “The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under § 1983 solely by virtue of the ‘official’ nature of their acts.” Id.

          Further, appellants’ chief authority Quern approved Monell, the cornerstone of appellee’s argument. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). Monell specifically holds that local governments are persons and may be liable under section 1983. Id.

Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-168, 90 S. Ct. 1598, 1613, 26 L. Ed. 2d 142 (1970): "Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials . . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Id.

          Appellee also argues that a state court should not refuse to hear a section 1983 claim. She cites Thomas v. Allen, 837 S.W.2d 631, 632 (Tex. 1992) (state court may not deny a federal right when the parties and controversy are properly before it in the absence of a “valid excuse”). Specifically, a state court cannot refuse to hear such a claim on the general basis of sovereign immunity. Id.; cf. Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 581-82 (Tex. 2001) (the state and its employees sued in their official capacity are not “persons” who may be sued under section 1983; trial court may grant summary judgment on sovereign immunity after case is developed).

          Our own research brings us to Forrester v. White, 484 U.S. 219, 230 (1988). There the United States Supreme Court held that a state judge was “not entitled to absolute immunity for his decisions to demote and discharge Forrester.” Id. Accordingly that case was remanded to the trial court for further proceedings. Id. We believe Monell, Thomas, and Forrester, are controlling.

          Here, appellants assert that a party cannot bring a claim directly under constitutional amendments, but must go through a separate federal statute. This is precisely what appellee did.

[W]e note that Congress has provided a means of seeking relief against state officials who violate the Constitution. In pertinent part, 42 U.S.C.A. § 1983 states that any person, acting under color of state law, who deprives a United States citizen "of any rights, privileges, or immunities secured by the Constitution" shall be liable to such citizen. Without intimating any views on the merits of appellant's due process claim, we note that no attempt has been made to invoke the protection of § 1983. It adds nothing to appellant's case to assume that a suit under § 1983 would be subject to defenses unique to the agency and its officials, for such defenses would also be available in the hypothetical implied Fourteenth Amendment cause of action. With these observations, we hold that appellant's complaint is fatally defective in that it fails to state a claim upon which relief may be granted.

Hearth, Inc. v. Dep’t of Pub. Welfare, 617 F.2d 381, 382-83 (5th Cir. 1980). We must construe the pleadings in the appellee’s favor and look to her intent. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 804 (Tex. 1989). Because appellee properly invoked the subject matter jurisdiction of the trial court, appellants’ second issue is overruled.

          In the third issue, appellants contend that appellee failed to timely file a grievance within ninety days of a “constructive discharge.” The record reflects otherwise. Appellee formally complained to the Commission less than a month after her alleged discharge.

          Appellants further contend that in order to establish a waiver of governmental immunity, appellee must plead and prove that appellee made a report to appropriate law enforcement. See Tex. Gov’t Code Ann. § 554.002 (Vernon Supp. 2003). We agree. See Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 321-22 (Tex. 2002). However, once again, the record reveals such a pleading on page nine of appellee’s fourth amended original petition. In deciding a plea to the jurisdiction, a court may not weigh the claims' merits but must consider only the plaintiff’s pleadings and the evidence pertinent to the jurisdictional inquiry. White, 46 S.W.3d at 868.

          The third prong of appellants’ issue three alleges that no suit was filed within ninety days as required by law. See Tex. Gov’t Code Ann. § 554.005 (Vernon 1994). Appellee argues that her original petition, timely filed, alleged that the county’s termination of her was in direct violation of Texas statutory and common law. Indeed, paragraph four of the original petition makes such a claim. Given that the time used by an employee acting under the grievance or appeal procedures is excluded, we do not believe this defense has merit. See Tex. Gov’t Code Ann. § 554.006(c) (Vernon Supp. 2003); see also Tex. Civ. Prac. & Rem. Code Ann. § 16.068 (Vernon 1997). In any event, there is serious question whether a limitations question may be entertained by interlocutory appeal. See Univ. of Houston v. Elthon, 9 S.W.3d 351, 356 (Tex. App.–Hous. [14th Dist.] 1999, pet. dism’d w.o.j.). But see Gregg County v. Farrar, 933 S.W.2d 769, 775 (Tex. App.–Austin 1996, writ denied) (language in the Whistleblower Act, "exhaust any applicable grievance or appeal procedures,” requires the employee to utilize all procedures in place for resolving disputes at the governmental entity, whether they are denominated "grievance" procedures or "appeal" procedures). Appellants’ third issue is overruled.

          In the fourth issue, the County argues the lack of subject matter jurisdiction for appellee’s Sabine Pilot claim. See Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985). It cites Salazar v. Lopez, 88 S.W.3d 351, 353 (Tex. App.–San Antonio 2002, no pet.). Salazar acknowledges the exception to the employment-at-will doctrine under Sabine Pilot, but holds this exception does not waive sovereign immunity. Id. (citing Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex. App.–Houston [1st Dist.] 1999, pet. dism'd w.o.j.), Carroll v. Black, 938 S.W.2d 134, 135 (Tex. App.–Waco 1996, writ denied), and Redmon v. Dallas Area Rapid Transit, No. 3:00-CV-0218-R, 2001 WL 182849, at *1 (N.D. Tex. Jan. 22, 2001)). We agree. Appellant’s fourth issue is sustained.

          In their final issue, the two individual appellants assert there is no legislative consent to bring a claim for damages for intentional infliction of emotional distress. Appellee asserts, and the pleadings reflect, this is a claim against Judge Borchard and Hinojosa in their individual capacities. Persons sued in their individual capacities may not rely on sovereign immunity protections for claims against them in that capacity, although they may assert the defense of official immunity. Ferguson, 97 S.W.3d at 215 (citing Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex. App.–El Paso 1993, writ dism'd w.o.j.)). This issue is overruled.

IV

          We reverse the trial court’s order denying appellants’ pleas to the jurisdiction on both the appeal from the Commission decision of January 13, 1997 and the Sabine Pilot claims. These claims are hereby dismissed, without prejudice, for want of jurisdiction. Appellants’ remaining issues are overruled and the case is remanded to the trial court for further proceedings. 

                                                                                      Don Wittig

                                                                                      Justice

Opinion delivered and filed

this 4th day of March, 2004.