City of New Braunfels v. Tovar
City of New Braunfels v. Tovar
Opinion of the Court
OPINION
This is an interlocutory appeal of an order denying a plea to the jurisdiction asserted by a municipality and three official-capacity defendants.
The underlying dispute arises under the Civil Service Act, now codified in Chapter 143 of the Local Government Code.
§ 143.033. Promotional Examination Grades
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(b) Each police officer is entitled to receive one point for each year of seniority as a classified police officer in that department, with a maximum of 10 points. Each fire fighter is entitled to receive one point for each year of seniority in that department, with a maximum of 10 points.
'(c) [T]he grade that must be placed on the eligibility list for each police officer or fire fighter shall be computed by adding the applicant’s points for seniority to the applicant’s grade on the written examination, but for a fire fighter applicant only if the applicant scores a passing grade on the written examination. Each applicant’s grade on the written examination is based on a maximum grade of 100 points and is determined entirely by the correctness of the applicant’s answers to the questions.... [A]ll police officer applicants who receive a grade of at least 70 points shall be determined to have passed the examination and all fire fighter applicants who receive a grade on the written examination of at least 70 points shall be determined to have passed the examination. If a tie score occurs, the commission shall determine a method to break the tie.7
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Assuming that the “seniority points” provided by subsection (b) became relevant to Tovar’s grade, there is no dispute that Tovar’s tenure with the New Braunfels Police Department would qualify him for the maximum of 1.0 additional points. In omitting such an adjustment, appellants evidently relied on a local civil-service rule that purports to construe Act section 143.033 to limit eligibility for “seniority points” solely to candidates who “receive a grade of at least 70 on the written examination” alone,
The Commission considered Tovar’s appeal during a meeting on July 9, 2014, and voted to deny relief. On July 18, Tovar filed his suit against appellants in the district court. In it, he principally seeks declaratory, injunctive, and mandamus relief to enforce what he views as the proper construction of Act section 143.033 and compel appellants to add the ten seniority points to which he claims entitlement, credit him with a grade of 74 on the exam, and place his name on the promotion-eligibility list. Incident to these claims, Tovar also seeks attorney’s fees and court costs.
Both on appeal and below, appellants have challenged the district court’s subject-matter jurisdiction to adjudicate Tovar’s claims on essentially two sets of grounds.
Appellants second line of jurisdictional attack is based on governmental immunity, which would generally bar suit against the City, its agencies or agents (including the three official-capacity defen
Tovar’s suit is plainly within the waiver provided by section 143.015 — its substantive thrust is that the Commission’s decision denying him the benefit of seniority points and a place on the promotion-eligibility list should be overturned.
Appellants’ chief argument in opposition is that Tovar did not invoke section 143.015, or even assert a justiciable claim under it, because he did not specifically name the Commission, in so many words, as a defendant, but instead sued the City and the Commission’s three members in their official capacities. Leaving aside whether there is any distinction between “the City of New Braunfels” and “the City of New Braunfels’ Civil Service Commission” that would be material to jurisdiction, “[i]t is fundamental” that a suit against a government officer in his or her official capacity, such as Tovar has asserted against the Commission’s three members, “is merely ‘another way of pleading an action against the entity of which [the official] is an agent.’ ”
Tovar’s alternative theory for invoking the district court’s jurisdiction despite appellants’ governmental immunity relies on the “ultra vires exception” to such immunity, whereby a claimant can seek prospective relief to compel a governmental body to comply with its statutory authority or perform a non-diseretionary duty.
Although we have sometimes declined to address the' applicability of the ultra vires exception where, as here, a valid statutory waiver of immunity has been invoked,
We agree that subsection (c) unambiguously mandates these actions on the part of the Commission (or, within the ultra-vires rubric, the Commission members in their official capacities) despite Tovar’s inability to obtain a passing grade on the written exam prior to any adjustments. This becomes apparent, as Tovar suggests, when examining subsection (c)’s contrasting treatment of seniority points for fire fighters versus police officers. Subsection (c) mandates that “the grade that must be placed on the eligibility list for each police officer or fire fighter shall be computed by adding the applicant’s points for seniority to the applicant’s grade on the written examination,” then adds “but for a fire fighter applicant only if the applicant scores a passing grade on the written examination.”
Each applicant’s grade on the written examination [i.e., that which the preceding sentence requires to be added to “the applicant’s points for seniority” to compute “the grade that must be placed on the eligibility list”], is based on a maximum grade of 100 points and is determined entirely by the correctness of the applicant’s answers to the questions .... [A]ll police officer applicants who receive a grade of at least 70 points shall be determined to have passed the examination and all fire fighter applicants who receive a grade on the written examination of at least 70 points shall be determined to have passed the examination.31
The import of these provisions and their contrasting treatment of police officers and fire fighters is that only a fire fighter’s “grade on the written examination” itself counts toward the passing grade of 70, while a police officer’s has the benefit of his or her “grade” — a term referring to the total of the • “grade on the written examination” and “points for seniority.” We must presume the Legislature tailored this contrasting language deliberately, and give effect to it.
We affirm the district court’s order denying appellants’ plea to the jurisdiction.
ORDER
PER CURIAM
Under the circumstances of this case, we order that no motions for rehearing may
It is ordered.
. See Tex. Civ. Prac. & Rem.Code § 51.014(a)(8); Texas A & M Univ. v. Koseoglu, 233 S.W.3d 835, 845 (Tex. 2007) (holding that section 51.014(a)(8) allows official-capacity defendants to bring interlocutory appeal of order denying plea to jurisdiction).
. See generally Tex. Loc. Gov’t Code §§ 143.001-.403; see also Bracey v. City of Killeen, 417 S.W.3d 94, 97 (Tex.App.-Austin 2013, no pet.) ("In municipalities that have voted to adopt it, the Civil Service Act — nowadays codified as chapter 143 of the Local Government Code — supplants at-will employment of police officers with a regime of merit-based, just-cause employment that is intended to ‘secure efficient ... police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants.’ ” (quoting Tex. Loc. Gov’t Code § 143.001(a))).
. See id. § 143.006 (creation and appointment of civil service commission).
. See City of Round Rock v. Whiteaker, 241 S.W.3d 609, 617-18 (Tex.App.-Austin 2007, pet. denied) (summarizing the Act’s provisions mandating creation and use of eligibility lists in making promotions).
We take the foregoing facts, which appear to be undisputed, from Tovar's live petition and material jurisdictional evidence. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
. See Whiteaker, 241 S.W.3d at 617 (citing Tex. Loc. Gov’t Code § 143.033(c)).
.See Tex. Loc. Gov’t Code § 143.034(a) (permitting "dissatisfied” exam candidate to "appeal, within five business days, to the [civil service] commission for review in accordance with this chapter”). Although Tovar’s live petition refers to this filing as a "grievance” rather than an "appeal” (and appellants seem to emphasize that fact), he also indicates that his "grievance” was made "pursuant to Tex. Loc. Gov’t Code § 143.034,” the provision authorizing an "appeal” by a "dissatisfied” exam candidate. Tovar’s choice of pleading nomenclature would not alter the substantive nature of what was plainly his pursuit of the administrative "appeal” remedy provided by section 143.034(a). And to the extent there could be any doubt, we additionally observe that Tovar’s evidence includes a copy of this filing and that he styled it an "appeal.”
. Id. § 143.033(b)-(c).
. New Braunfels, Tex., Firefighters & Police-Officers Civil Service Commission Rules and Regulations § 143.033(1) (Oct. 11, 2011), available at http://www.nbtexas.org.
. See Whiteaker, 241 S.W.3d at 617 (discussing statutory- procedures for deriving promotion-eligibility lists and rankings).
. See, e.g., Talley v. City of Killeen, 418 S.W.3d 205, 207 (Tex.App.-Austin 2013, pet. denied) (explaining that local civil-service rule is unenforceable to extent it is inconsistent with Civil Service Act (citing Tex. Const. art. XI, § 5; City of Houston v. Bates, 406 S.W.3d 539, 546 (Tex. 2013))).
. Tovar’s live petition also includes a prayer for "actual damages.” However, the reporter’s record from the hearing on appellants’ plea to the jurisdiction reflects that Tovar’s counsel orally non-suited any claims for such damages. See In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 324-25 (Tex. 2009) (recognizing oral nonsuit as effective when made).
. Appellants have also presented several arguments that are either in the nature of pleas in bar or otherwise go to the merits of Tovar’s claims rather than the district court's jurisdiction to decide them. We do not — and cannot — address those issues at this juncture. See Bland, 34 S.W.3d at 555 (holding that courts may consider evidence that goes to merits, but only where necessary to resolve jurisdiction issue that is before the court in interlocutory appeal); see also Astoria Indus, of Iowa, Inc. v. SNF, Inc., 223 S.W.3d 616, 626-27 (Tex.App.-Fort Worth 2007, pet. denied) (noting that scope of jurisdiction in interlocutory appeal is generally limited to issue on which interlocutory appeal is authorized, even if order denies or grants other relief).
. See Whiteaker, 241 S.W.3d at 617-18.
. See id. at 625. Appellants also suggest that Tovar’s claims are not justiciable because it is merely speculative that any vacancies or promotions will occur before the expiration of any promotion list that would have been created based on the May 20, 2014 examination. See Tex. Loc. Gov’t Code § 143.036(h). While perhaps relevant to potential mootness in the future, see Heckman v. Williamson Cnty., 369 S.W.3d 137, 161-64 (Tex. 2012) (discussing general principles of mootness); but see id. at 164 (discussing capable-of-repetition-but-evading-review concept), appellants fail to demonstrate that Tovar currently lacks a justiciable interest in his claims.
. See, e.g., City of New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 512-13 (Tex. App.-Austin 2014, no pet.).
. Tex. Loc. Gov’t Code § 143.015(a). Such a petition must be filed within ten days after the date of the final commission decision. See id. There is no dispute Tovar’s suit was filed within that deadline.
. Id. § 143.015(b)-(d).
. See Whiteaker, 241 S.W.3d at 630.
. See Tex. Loc. Gov’t Code § 143.015(a) (authorizing police officer “dissatisfied with any commission decision” to "file a petition in district court asking that the decision be set aside”).
. Id. § 143.015(b).
. Id. § 143.015(c).
. Koseoglu, 233 S.W.3d at 844 (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)).
. Texas Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 726, 750 (Tex.App.-Austin 2014, pet. dism'd); accord Teladoc, Inc. v. Texas Med. Bd., 453 S.W.3d 606, 613 n. 24 (Tex.App.-Austin 2014, pet. filed) (noting that naming agency officer "amounts to a duplica-tive but harmless pleading of the same claim
. See Balquinta, 429 S.W.3d at 750; Teladoc, 453 S.W.3d at 613 n. 24.
. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Contrary to appellants' assertions during oral argument, the import of Heinrich is not tied to the existence of a contractual right.- See id. (focusing on state official’s acting without legal authority or failing to perform a purely ministerial act); see also Southwestern Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 588 (Tex. 2015) (holding that local governmental agency’s refusal to comply with Water Code provision constituted ultra vires act).
. See Heinrich, 284 S.W.3d at 373.
. Id. at 372-73.
. Texas Dep’t of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 701-02 (Tex.App.-Austin 2011, no pet.) (citing Heinrich, 284 S.W.3d at 372-73; Creedmoor-Maha Water Supply Corp. v. Texas Comm’n on Envtl. Quality, 307 S.W.3d 505, 516 n. 8 (Tex.App.-Austin 2010, no pet.)).
.See, e.g., Balquinta, 429 S.W.3d at 751 ("[WJhere th[e] jurisdictional analysis of an ultra-vires claim would also have the effect of deciding the merits of a claim under APA section 2001.038 that is within the trial court’s jurisdiction by virtue of that statute's waiver of immunity, a trial court does not err in deferring that overlapping determination until a later time.” (citing Sunset Transp., 357 S.W.3d at 705); Texas Dep’t of Pub. Safety v. Salazar, 304 S.W.3d 896, 906 n. 7 (Tex.App.Austin 2009, no pet.)). Our concern has been that an ultra vires analysis would effectively decide the merits of claims within the statutory waiver. See id. (declining to address ultra vires jurisdiction because it would "decide disputes regarding [the state actors’] statutory authority that also underlie [plaintiffs’] section 2001.038 rule challenge and comprise the merits of that claim.”).
. Tex. Loc. Gov't Code § 143.033(c).
. Id. (emphases added).
. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (“When construing a statute, our primary objective is to ascertain and give effect to the Legislature's intent.... To discern that intent, we begin with the statute’s words.... We presume that the Legislature chooses a statute’s language with care, including each word chosen for a purpose, while purposefully omitting words not chosen.”) (internal citations omitted); see also Talley, 418 S.W.3d at 207 (applying similar analysis to Civil Service Act’s 10-day deadline for appeals).
. See Tex.R.App. P. 49.4.
. Tex.R.App. P. 18.6.
Reference
- Full Case Name
- CITY OF NEW BRAUNFELS Jan Kotylo, in her official capacity Pat Clifton, in his official capacity and Fritz Welsch, in his official capacity v. Joseph TOVAR
- Cited By
- 12 cases
- Status
- Published