First Court of Appeals says NO to City's attempt to get Civil Service Commission ruling in dispute over disciplinary action overturned by the courts. Uniform Declaratory Judgments Act is not to be used to create basis for lawsuit where judicial review is not authorized by statute. Appeal is only available to an aggrieved firefighter or police officer, not to the City.
(Tex.App.- Houston [1st Dist.] July 17, 2008)(Hanks) (City of Houston litigation, public employment, firefighters and policemen, disciplinary action, plea to the jurisdiction against city proper, DJA not available here)
OPINION BY JUSTICE GEORGE C. HANKS, JR
The City of Houston appeals the trial court's order granting the plea to its jurisdiction. The City contends that the trial court erred in granting the plea because the City's pleadings sufficiently set out facts establishing jurisdiction under the Declaratory Judgment Act. We affirm.
In 2006, an investigation conducted by the Houston Police Department ("HPD") determined that officer Joseph A. Buttitta had engaged in conduct that violated various HPD policies. In lieu of other disciplinary action, the City accepted Buttitta's request to receive a voluntary two-level demotion. A letter from the chief of police explaining Buttitta's misconduct and demotion was prepared and placed in Buttitta's permanent personnel file, pursuant to Local Government Code section 143.089. (1) Buttitta filed a motion with the Police Officers' Civil Service Commission ("Commission"), requesting that the letter be removed from his personnel file. After hearing oral argument on the motion, the Commission granted Buttitta's request and ordered that the letter be removed from his personnel file. The letter was removed and returned to the chief of police, who, after consultation with the City's legal department, directed that the letter be placed back in Buttitta's file.
Due to the controversy as to whether the letter should be placed in Buttitta's file, the City filed a petition in district court requesting a declaration that (1) the Commission did not have jurisdiction to order that the letter be removed and (2) the letter be returned to Buttitta's file. Buttitta filed a plea to the court's jurisdiction. The court granted Buttitta's plea and the City's petition was dismissed. The City now appeals.
Plea to the Jurisdiction
In its sole issue, the City complains that the trial court improperly granted Buttitta's plea to the jurisdiction. Specifically, the City argues that its petition set out sufficient factual allegations to establish jurisdiction under the Declaratory Judgment Act. [...]
The City contends that its petition sufficiently alleged facts establishing questions of statutory construction regarding the rights, status, and legal relations of the parties, specifically about whether the Commission's order is legal and enforceable and whether the letter must be removed from Buttitta's personnel file. According to the City, it showed that there is a substantial justiciable controversy between the parties that involves a genuine conflict of tangible interests. See Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). Therefore, the City concludes that it has pled facts that fall within the scope of the Declaratory Judgment Act ("DJA") (2) and establish the trial court's jurisdiction to hear the case.
It is well settled that the DJA is not a grant of jurisdiction, but "merely a procedural device for deciding cases already within a court's jurisdiction." Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996) (quoting State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994)); see also Tex. Civ. Prac. & Rem. Code Ann. § 37.003 (Vernon 1997) ("A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.") (emphasis added). Regardless of whether the petitioner established a controversy resolvable under the DJA, a court must first have subject matter jurisdiction before it can render a declaratory judgment. See County of Galveston v. Tolle, 176 S.W.3d 859, 862 (Tex. App.--Houston [1st Dist.] 2005, pet. denied).
Section 143.015 of the Local Government Code provides that fire fighters and police officers dissatisfied with a Commission decision may file a petition in district court asking that the decision be set aside, but does not state that the municipality involved may do the same. Tex. Loc. Gov't Code Ann. § 143.015(a) (Vernon 2008).
Accordingly, only aggrieved fire fighters and police officers have a right to seek judicial review of a Commission decision--not municipalities. See City of Houston v. Clark, 197 S.W.3d 314, 318-20 (Tex. 2006) (recognizing that the Local Government Code affords appellate rights from a Commission decision only to aggrieved officers, because the Commission is closely aligned with the municipality); City Of Garland v. Byrd, 97 S.W.3d 601, 607-08 (Tex. App.--Dallas 2002, pet. denied).
Because the City had no right to ask the trial court to set aside the Commission's decision, the court had no subject matter jurisdiction over the underlying dispute, and, therefore, could not grant the City's requested declaratory relief. We hold that the trial court did not err in granting Buttitta's plea to the jurisdiction.
The City also asserts that it should have been given an opportunity to cure any defect in its pleadings. However, because the jurisdictional defect is incurable, the City has no right to seek judicial review of the Commission's decision, the City's cause was properly dismissed. Peek, 779 S.W.2d at 805.
We overrule the City's sole point of error.Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Panel members: Before Justices Alcala, Hanks and Higley
Appellate cause number: 01-07-00323-CV
Full style of case: City of Houston v. Joseph A. Buttitta
Appeal from 113th District Court of Harris County
Trial Court Judge: Hon. Patricia Hancock