City of Houston v. Buttitta (Tex.App.- Houston 2008)

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.

City of Houston v. Buttitta

(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.

Background

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. [...]
Analysis

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.

We disagree.

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.
Justice

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

City's fight against firefighter ends, but unresolved legal issues smolder on

After multiple appeals, including one to the Texas Supreme Court, the disagreements over authority and jurisdiction in connection with judicial review of decision of independent hearing examiners in disciplinary disputes involving firefighters are still not fully extinguished. 

City of Houston Fire Station

In the latest court decision, on remand from the Supreme Court, a panel of the Fourteenth Court of Appeals holds that the the trial court did not have jurisdiction over the city's appeal from independent hearing examiner's decision, but one justice wrote separately, concurring in the result on different grounds. The firefighter prevails, but not on the merits. Unfortunately more litigation involving similar fact scenarios may be in the offing, as a key issue of first impression was not reached for a precedent-setting decision on the merits given the court's holding that the trial court lacked jurisdiction, and that the proper course of action for the reviewing court was to vacate the judgment below.

City of Houston v. Clark No. 14-03-00399-CV (Tex.App.- Houston [14th Dist.] Mar. 18, 2008)(Post-remand Majority Opinion by Frost) (firefighter litigation, disciplinary actions, no judicial review of merits of independent hearing examiner's decision, immunity plea, claim, lack of jurisdiction over dispute, case with multiple appeals)
The City of Houston v. Donald ClarkAppeal from 333rd District Court of Harris County
Trial Court Judge: Hon. Joseph J. Halbach
Disposition: Affirmed in part, dismissed in part
Concurring Opinion by Justice Edelman

City of Houston's appeal in firefighter suit fails

Houston Court of Appeals upholds fine against City for failure to promptly implement decision favorable to fire fighter in compensation grievance. City's claim of sovereign immunity rejected in opinion written by Justice Hanks.

City of Houston v. Hildebrandt No. 01-06-00936-CV (Tex.App.- Houston [1st Dist.] Feb. 28, 2008)(Hanks) (firefighter law suits, UDJA, declaratory judgment, statutory penalty, construction of statute, authority of hearing examiner)
Opinion by Justice Hanks
Panel composition: Justices Sam Nuchia, George Hanks and Laura C. Higley
Case style: City of Houston vs. Alan Hildebrandt
Appeal from 165th District Court of Harris County (Judge Elizabeth Ray)
Dispostion: Judgment for firefighter affirmed
OPINION BY JUSTICE GEORGE HANKS

The City of Houston (“the City”) appeals the trial court’s judgment denying its request for declaratory judgment and awarding Alan Hildebrandt $24,000 in statutory penalties. On appeal, the City presents three issues, arguing that the trial court improperly: (1) awarded statutory penalties to Hildebrandt because there is no evidence to support the award, (2) denied its request for declaratory judgment, and (3) granted Hildebrandt’s request for declaratory judgment. We affirm.

Background

Following surgery, Alan Hildebrandt, a fire fighter with the Houston Fire Department, began using the sick leave that he had accumulated over his 30 years working in a Fire Department suppression unit. After being on sick leave for 90 consecutive days, Hildebrandt was transferred from his suppression unit to a position with a five-day work schedule.

Pursuant to Fire Department policy, after a member has been on sick or injury leave for 90 days,he is transferred to a position with a five-day work schedule.

The parties agree that this transfer caused Hildebrandt to utilize his sick leave faster than when he was a member of the suppression unit.

Hildebrandt filed a step I grievance, See Tex. Local Gov’t Code Ann. § 143.128 (Vernon 2008) (describing the procedures a firefighter must follow to file a step I grievance and the subsequent obligations of a municipality) requesting that he be allowed to use his sick leave on the same schedule as it was accrued. After his step I grievance was denied, Hildebrandt filed a step II grievance, See Tex. Local Gov’t Code Ann. § 143.129 (Vernon 2008) (describing how a fire fightercontinues the grievance procedure if he finds the proposed solution from his step I grievanceunacceptable and the municipality’s burden once a step II grievance is properly filed) which was also denied. He then submitted a written request to appeal his step II grievance to an independent hearing examiner. See Tex. Local Gov’t Code Ann. § 143.129 (d) (explaining that, if the proposed solutionfollowing a step II grievance is unacceptable, a fire fighter may request an independent hearingexaminer pursuant to section 143.057 or continue to a step III grievance).

After a hearing, the hearing examiner ordered the City to restore Hildebrandt’s sick leave level to the amount it would have been had he remained on a suppression unit.

The hearing examiner’s award noted that “it is left to the parties to work out the exact amount tobe restored to Hildebrandt’s account.”

The City appealed the hearing examiner’s award to a district court, asking for a declaratory judgment that the City is not required to implement the hearing examiner’s award. Hildebrandt brought a counter claim, asserting that he was owed statutory penalties that the City incurred by intentionally failing to implement the hearing examiner’s decision in a timely manner. See Tex. Local Gov’t Code Ann. § 143.134(h) (Vernon 2008) (award must be implementedwithin 10 days).

During opening statements in the trial court, the City clarified that it was claiming that the hearing examiner acted without or exceeded his jurisdiction in entering his award. The trial court denied the City’s declaratory judgment action and awarded Hildebrandt $24,000 on his counter claim. The City now appeals.

Declaratory Judgment

In its second issue, the City argues that the trial court erred in denying its motion for declaratory judgment “because the Fire Chief is statutorily entitled to assign members and to make policy relating to absences from work.”

Hildebrandt asserts that the City actually challenges whether the hearing examiner ignored the FireChief’s right to transfer members of the Fire Department. Hildebrandt contends that such anargument is foreclosed, because the City can only appeal a hearing examiner’s award on “groundsthat the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order wasprocured by fraud, collusion, or other unlawful means.” Tex. Local Gov’t Code Ann. §143.057(j) (Vernon 2008); see City of Houston v. Clark, 197 S.W.3d 314, 324 (Tex. 2006); City ofPasadena v. Smith, __ S.W.3d __, 2006 WL 2640410, at *3–4 (Tex. App.—Houston [1st Dist.] Sept.4, 2006, pet. denied, rehearing on pet. filed, Jan. 23, 2008). Hildebrandt contends that the City’sappeal fails because it does not concern the hearing examiner’s jurisdiction.
In Smith, we held that, because it was not arguing that the hearing examiner exceeded hisstatutorily conferred jurisdiction, but rather that he misapplied the law, the City was not affordedthe protection of section 143.057(j). 2006 WL 2640410 at *3–4. Here, however, the crux of theCity’s challenge is that, because “the Fire Chief has the unchallengeable right to assign members,the hearing examiner did not have jurisdiction to enter his award.” Therefore, we address whetherthe trial court erred in denying the City’s motion seeking a declaration that the hearing examiner hadno jurisdiction to enter his award.
Standard of Review

We review declaratory judgments under the same standards as other judgments and decrees. Tex. Civ. Prac. & Rem. Code Ann. § 37.010 (Vernon 1997). We look to the procedure used to resolve the issue at trial to determine the standard of review on appeal. City of Galveston v. Giles, 902 S.W.2d 167, 170 (Tex. App.—Houston [1st Dist.] 1995, no writ). The City’s motion for declaratory judgment required the trial court to interpret the City’s rights and those of the hearing examiner under the Local Government Code. Interpreting statutes is a legal matter, subject to de novo review. Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002). A trial court has no discretion when evaluating a question of law. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). The overriding goal of statutory interpretation is to determine the Legislature’s intent. Cont’l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex. 2002). In order to ascertain legislative intent, we first look to the plain and common meaning of the words used by the Legislature. Tex. Gov’t Code Ann. § 311.011 (Vernon 2005); Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 529 (Tex. 2002). It is a well-settled rule of statutory construction that every word of a statute must be presumed to have been used for a purpose. In re Bell, 91 S.W.3d 784, 790 (Tex. 2002). In ascertaining legislative intent, we do not confine our review to isolated statutory words, phrases, or clauses, but we instead examine the entire act. Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001).

Analysis

The City directs us to section 143.1095, which states that the head of a fire department may transfer a fire fighter for numerous reasons, including for “any other specified reason the department head considers necessary.” Tex. Local Gov’t Code Ann. § 143.1095(a)(6) (Vernon 2008). Thus, the City argues that the trial court erred in denying its motion for declaratory judgment, because the hearing examiner lacked jurisdiction to enter an award which usurped the Fire Chief’s statutorily prescribed authority to manage the Fire Department.

After his step II grievance was denied, Hildebrandt decided to appeal to an independent hearing examiner pursuant to the provisions of section 143.057. See Tex. Local Gov’t Code Ann. § 143.129. Under subsection 143.057(f), the hearing examiner has the same duties and powers as the Fire Fighters’ Civil Service Commission. Tex. Local Gov’t Code Ann. § 143.057(f); see also City of Houston v. Jackson, 192 S.W.3d 764, 768 (Tex. 2006). This includes the authority to determine whether Chapter 143 and its rules are being obeyed. Tex. Local Gov’t Code Ann. § 143.009 (Vernon 2008). Therefore, hearing examiners are given the power to apply, interpret, and enforce the rules that are contained in the chapter that permits the Fire Chief to transfer fire fighters. See Lindsey v. Fireman’s and Policeman’s Civil Serv. Comm’n, 980 S.W.2d 233, 236 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).

Here, the hearing examiner interpreted section 143.045 and ordered an award based upon his interpretation; therefore, he acted within the jurisdiction afforded him by the Local Government Code. We hold that the trial court did not err in denying the City’s request for declaratory judgment.

We overrule the City’s second issue.

Sovereign Immunity

In its third issue, the City argues that the trial court improperly granted Hildebrandt’s suit for statutory penalties because the claim was barred by sovereign immunity.

Additionally, the City contends that the trial court erred by allowing Hildebrandt to avoid sovereignimmunity by using a declaratory action to claim monetary damages against it. However, the finaljudgment shows that the trial court did not grant Hildebrandt declaratory relief, but, rather, found thathe was entitled to judgment on his counter claim for statutory penalties. Therefore, a declaratoryaction was not used to circumvent the City’s sovereign immunity.

Specifically, the City asserts that Chapter 143 includes no enabling clause allowing for judicial review of Hildebrandt’s claim for statutory penalties.

Standard of Review

As with the City’s second issue, we review interpretation of the Local Government Code de novo. See Bragg, 71 S.W.3d at 734. Additionally, the Texas Supreme Court has consistently held that penal statutes should be strictly construed. See, e.g., Brown v. De La Cruz, 156 S.W.3d 560, 565 (Tex. 2004). Statutes waiving sovereign immunity and statutes waiving governmental immunity are similarly construed. See, e.g., Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). “[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” Tex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2007).

Analysis

Hildebrandt responds to the City’s argument by asserting that subsection 143.134(h) clearly and unambiguously allows for a penalty to be pursued against the City. Subsection 143.134(h) provides for a statutory penalty as follows:

If the decision of the commission under Section 143.131 or the decision of a hearing examiner under Section 143.129 that has become final is favorable to a fire fighter, the department head shall implement the relief granted to the fire fighter not later than the 10th day after the date on which the decision was issued. If the department head intentionally fails to implement the relief within the 10-day period, the municipality shall pay the fire fighter $1,000 for each day after the 10-day period that the decision is not yet implemented.
Tex. Local Gov’t Code Ann. § 143.134(h).

In determining whether a statute affords a clear and unambiguous waiver of immunity absent express language to that effect, one interpreting guideline is that a statute must waive immunity “beyond a doubt,” such as “when the provision in question would be meaningless unless immunity were waived.” See Wichita Falls State Hosp, 106 S.W.3d at 697.

Here, the mandatory penalty in subsection 143.134(h) would be meaningless unless the municipality’s immunity were waived. Therefore, because subsection 143.134(h) mandates that a municipality pay a penalty for noncompliance with a hearing examiner’s decision after 10 days, there is a clear and unambiguous waiver of the municipality’s immunity. We also note that the Texas Supreme Court has recently recognized that subsection 143.134(h)applies where a municipality fails to comply with an independent hearing examiner’s decision. Jackson, 192 S.W.3d at 772.

We hold that sovereign immunity did not bar the trial court from determining whether Hildebrandt was owed statutory penalties under subsection 143.134(h).

We overrule the City’s third issue.

Legal Sufficiency

In its first issue, the City argues that the trial court erred in awarding statutory penalties to Hildebrandt because the evidence is legally insufficient to support the trial court’s finding that the Fire Chief intentionally failed to implement the hearing examiner’s award.

Standard of Review

In an appeal of a judgment rendered after a bench trial, the trial court’s findings of fact have the same weight as a jury’s verdict, and we review the legal sufficiency of the evidence used to support them just as we would review a jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); In re K.R.P., 80 S.W.3d 669, 673 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). When challenged, a trial court’s findings of fact are not conclusive if, as in the present case, there is a complete reporter’s record. In re K.R.P., 80 S.W.3d at 673. When a party who does not have the burden of proof at trial challenges the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party’s favor. Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex. 1998). If there is any evidence of probative force to support the finding, i.e., more than a mere scintilla, we will overrule the issue. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005).

Analysis

Under subsection 143.134(h), “[i]f the department head intentionally fails to implement the relief” awarded to the fire fighter, the municipality must pay the fire fighter statutory penalties. Tex. Local Gov’t Code Ann. § 143.134(h). The City notes that “department head” is defined in the Local Government Code as “the chief or head of a fire or police department or that person’s equivalent, regardless of the name or title used.” Tex. Local Gov’t Code Ann. § 143.003 (Vernon 2008). Therefore, the City argues that, because there is no evidence that the Fire Chief knew of the award, let alone intentionally failed to implement it, the trial court’s finding is legally insufficient.

We rejected the identical argument in City of Houston v. Jackson. 135 S.W.3d 891, 898 (Tex. App.—Houston [1st Dist.] 2004), overruled on other grounds, 192 S.W.3d 764 (Tex. 2006). “Intent is generally a question of fact,” which “may be proven by circumstantial evidence.” Id. Therefore, in conducting our sufficiency review, we look to see whether there is more than a scintilla of evidence, actual or circumstantial, that the Fire Chief intentionally failed to implement the award within 10 days.

Here, Hildebrandt sent a letter to the City on February 12, informing it that implementation of the award was five days past due, and that subsection 143.134(h) provides for a statutory penalty for noncompliance after 10 days. In the letter, Hildebrandt directed that the Fire Chief be provided a copy of the letter to ensure timely implementation of the award. Nevertheless, the evidence shows that the City did not implement the award until March 3, 34 days after the decision was issued. Therefore, we hold that there was legally sufficient evidence that the Fire Chief intentionally failed to implement the hearing examiner’s award within 10 days. See Haggar Clothing, 164 S.W.3d at 388.

We overrule the City’s first issue.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.
Justice

Panel consists of Justices Nuchia, Hanks, and Higley.

Justice Sam Nuchia writes that dismissal for lack of jurisdiction with prejudice was proper even though the merit were not reached

Lovell v. City of Baytown, Texas (Tex.App.- Houston [1st Dist.] Aug. 9, 2007, pet. filed Jan. 7, 2008)

Update: This case is being appealed to the Texas Supreme Court and has been docketed under case no. 07-1011

Keith Lowell; Ferrel J. Angelle; Bill Baylis; James Burgess; Robert Burlin; Thomas Carr; Gilbert Contreras; David Cox; Jeff Daigle; James T. Datillo, Sr.; Richard S. Domask; W.A. Domask; Daniel J. Dubiel; Ralph Feniello; Rodney Foster; Gaston Gagne; et al v. City of Baytown, Texas, No. (Tex.App.- Houston [1st Dist.] Aug. 9, 2007)(Opinion by Justice Nuchia)(fire fighter litigation, firefighters' suit against city)
Appeal from 215th District Court of Harris County
Trial court judge: Hon. Levi J. Benton

OPINION BY JUSTICE SAM NUCHIA

Appellants, Keith Lowell, Jeff Daigle, Richard S. Domask, W.A. Domask, Ralph Finiello, Rodney Foster, Gaston Gagne, Derrick Gaskin, James Slate Hill, Marshall Hutton, Jared Jackson, James T. Lewis, Tracy E. Lindsey, Victor Medina, Mark Medrano, James Moss Jr., Charles E. Murrell, Scott Pritchett, Raul Rodriguez Jr., Shawn Russi, Brian W. Smith, John Wadley, Millard Williams Jr., Gary M. Willis Jr., Michael Wooster, James Burgess, Robert Burlin, Gilbert Contreras, David Cox, James T. Datillo Sr., Daniel J. Dubiel, Barry I. Hawkins, Walter Horton, Jackie Ickes, Paul Munoz, Mark Neal, Frederick D. Spencer, Ferrell J. Angelle, Bill Baylis, Thomas Carr, Ross L. Hargin, Richard Lopez, Robert T. McKay, Victor Medrano, George J. Restivo, Weylon Robinson, Timothy Rogers, Michael K. Ryan, Larry A. Troutman, and Marian Wyse, appeal the trial court's order dismissing appellants' claims for lack of subject-matter jurisdiction. Appellants, firefighters employed by appellee, City of Baytown (the City), sought declaratory and injunctive relief and back pay under the Civil Service Act. (1) The trial court granted the City's plea to the jurisdiction based on governmental immunity from suit. On appeal, appellants contend that their claims under the Declaratory Judgments Act (2) do not implicate governmental immunity and that the City's immunity from suit is waived as to claims under the Civil Service Act. Alternatively, appellants contend that, if it was appropriate for the trial court to dismiss appellant's claims, the trial court should not have dismissed them with prejudice. Finally, appellants contend that, because the trial court dismissed the case based only upon the City's claim of immunity from suit, this Court cannot affirm the dismissal on the basis that appellants' did not exhaust their administrative remedies.
We affirm in part and reverse in part and remand the case for further proceedings.

BACKGROUND

The City of Baytown firefighters are subject to the Civil Service Act (the Act), which provides that all firefighters within the same classification are entitled to the same base salary and to longevity or seniority pay. Tex. Loc. Gov't Code Ann. § 143.041 (Vernon Supp. 2006). In addition, the City and the firefighters have entered into a collective bargaining agreement (CBA) that provides for a "step plan" within the Fire Department's employment classifications. Under the Act, a firefighter begins to accrue seniority points on the date that he or she is hired. A department head may designate an employee from the next lower classification to fill a position temporarily in a higher classification. Id., § 143.038 (Vernon 1999). While filling the higher position, the employee is entitled to the base salary of the higher position as well as the employee's own longevity or seniority pay. Id. § 143.038(b).

Appellants sued the City, alleging that they had not been paid their seniority pay when serving temporarily in higher classifications. After the original petition and answer were filed, each party filed a motion for summary judgment. The City then filed a plea to the jurisdiction asserting that the City's governmental immunity from suit had not been waived and that appellants had not exhausted their administrative remedies. The trial court granted the City's plea and dismissed appellants' claims for lack of subject matter jurisdiction. The trial court denied appellants' motion for new trial, and appellants filed this appeal.

STANDARD OF REVIEW

A plea to the jurisdiction is appropriate whenever a governmental unit believes that the trial court lacks subject-matter jurisdiction. Tex. Dept. of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). When deciding whether to grant a plea to the jurisdiction, the trial court must look solely to the allegations in the petition. Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736,739 (Tex. App.--Austin 1994, writ denied). The plaintiff bears the burden of alleging facts affirmatively showing that the trial court has subject-matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). The court of appeals must take the allegations in the petition as true and construe them in favor of the pleader. Id. Whether a trial court has subject-matter jurisdiction is a question of law and is reviewed de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

DISCUSSION

I. The City's Governmental Immunity From Suit

In their first issue, appellants contend that the trial court erred by ruling that the City's governmental immunity from suit deprived the court of subject-matter jurisdiction over claims brought under the Civil Service Act. Appellants argue that (1) the trial court has jurisdiction under the Declaratory Judgments Act to construe the Civil Service Act; (2) waiver of the City's immunity from claims for back pay brought under the Civil Service Act has been established through 60 years of case law; (3) and (3) the common-law doctrine of waiver of immunity applies because, otherwise, portions of the Civil Service Act would be rendered meaningless.

1. Declaratory judgment and injunction

Appellants' lawsuit demands interpretation of sections 143.038 and 143.041of the Civil Service Act. See Tex. Local Gov't Code Ann. §§ 143.038, 143.041. The Declaratory Judgments Act provides, "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." Tex. Civ. Prac. & Rem. Code Ann. § 37.003(a) (Vernon 1997). The court's authority extends to include the construction of statutes and ordinances. Id., § 37.004(a) (Vernon 1997). A suit to construe a statute or ordinance does not implicate governmental immunity from suit. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). However, a party may not circumvent governmental immunity from suit by characterizing a suit for money damages as a declaratory-judgment action. Id. at 856.

The relief requested by appellants in their petition included (1) a declaration that the City's failure to pay the base salary of the higher-graded position along with a firefighter's own seniority pay violated Local Government Code sections 143.038 and 143.041 and (2) a permanent injunction prohibiting the City from future violation of the statutes. Because appellants' requested declaration and injunction do not require the payment of money damages, these claims do not implicate governmental immunity. Therefore, the trial court had jurisdiction to construe the relevant sections of the Civil Service Act and to enjoin the City from failing to pay appellants consistent with the trial court's construction of the Act. See Bell v. City of Grand Prairie, 221 S.W.3d 317, 325 (Tex. App.--Dallas 2007, no pet.) (concluding that, to extent appellants did not seek money damages, declaratory judgment action and injunction were not barred by governmental immunity).

2. Back pay

Appellants also requested an award of back pay and benefits lost as a result of the City's failure to pay appellants properly. Appellants contend that more than 60 years of case law establishes that back pay is recoverable under the Civil Service Act. Appellants direct us to numerous cases, including seven supreme court cases, (4) that affirm the right to be awarded back pay under the Civil Service Act. In response, the City argues that immunity was not an issue in the cases cited by appellant and that some of those cases involved a vested property interest, unlike the present case, which involves "mere 'wishes'" of appellants.
Because it is jurisdictional, immunity from suit is always an issue when a governmental entity is sued. Subject-matter jurisdiction cannot be waived and may be considered by an appellate court on its own motion. Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 517 (Tex. 1995). Therefore, the parties' failure to raise the issue of governmental immunity from suit cannot explain 60 years of silence on this issue. However, the supreme court has recently broken that silence in two cases brought under the Civil Service Act.

In City of Houston v. Williams, a group of retired firefighters sued to recover amounts they claimed were improperly withheld from lump-sum payments due them upon retirement as required by sections 143.115 and 143.116 of the Local Government Code. 216 S.W.3d 827, 828 (Tex. 2007). The court noted that "state law requires" that firefighters receive such payments. Id. The court of appeals had held that the "sue and be sued" language of the City's charter and the "plead and be impleaded" language of Local Government Code section 51.075 waived the City's immunity from suit. Id. Because this holding was inconsistent with Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006), the supreme court reversed the court of appeals' judgment. Id. The court also determined that appellants could not assert their claim for declaratory relief because the only injury alleged had already occurred and the only plausible remedy was money damages. Id. at 828-29. The court stated, "[I]f the sole purpose of such a declaration [to determine statutory rights] is to obtain a money judgment, immunity is not waived." Id. at 829. Because of the recent enactment of sections 271.151-.160 of the Local Government Code, which waives immunity from suit for certain contract claims, the court remanded the case to the trial court to consider the applicability of that statute. Id.

In City of Sweetwater v. Waddell, firefighters and their association sued the city for failure to promote Waddell and to pay firefighters as required by the Civil Service Act. 218 S.W.3d 80, 80 (Tex. 2007). The firefighters prayed for a declaration that the City's actions were unlawful, an order that Waddell be promoted, and money damages. Id. The trial court granted the City's plea to the jurisdiction, and the court of appeals reversed, holding that the "sue and be sued" language in the charter waived the City's immunity from suit. Id. at 80-81. The supreme court, holding that the court of appeals' decision was inconsistent with Tooke v. City of Mexia, reversed the court of appeals, stating, "On remand the trial court may consider, among other things, whether the City's immunity from suit is waived by sections 271.151-.160 of the Local Government Code or other statutory provisions." Id. at 81. The court did not address whether appellants' declaratory judgment claims had been properly brought.

We read Williams and Waddell to foreclose any award of money damages under the Civil Service Act unless the Legislature gives to firefighters and police officers, for whose benefit this act was passed, permission to sue.

3. Common-law waiver of immunity

Appellants propose that we apply the common-law doctrine that waiver of immunity from suit will be found if, without waiver, a statute would be rendered meaningless. Appellants cite, as an example of such waiver, City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995). In Barfield, the supreme court stated:
The rule requiring a waiver of governmental immunity to be clear and unambiguous cannot be applied so rigidly that the almost certain intent of the Legislature is disregarded. Legislative intent remains the polestar of statutory construction. We will not read statutory language to be pointless if it is reasonably susceptible of another construction. If a statute leaves no reasonable doubt of its purpose, we will not require perfect clarity, even in determining whether governmental immunity has been waived. Id. at 292.

Using these principles, the court held that, even in the absence of specific waiver language, the intent of the Legislature was to waive governmental immunity from suit for violations of the Anti-Retaliation Law. (5) Id. at 296-97.

Appellants also cite, as an example of waiver by legislative intent, the Whistleblower Act, (6) which is discussed in Barfield. Id. at 296. Regarding that Act, which applies to state agencies and local governments, the court stated, "[I]ndeed, there would be no purpose for the Act at all if immunity were not waived." Id. Appellants argue that this reasoning applies equally to the Civil Service Act, which applies specifically to cities and their employment of firemen and police officers.

We find appellants' reasoning compelling. However, in our view, our supreme court has, in Waddell and Williams, specifically precluded the recovery of money damages in a lawsuit brought under the Civil Service Act. Thus, the court foreclosed the result urged by appellants. See Waddell, 218 S.W.3d at 81; Williams, 216 S.W.3d at 829.

4. Summary

We sustain appellants' first issue as it relates to their claims for declaratory judgment and injunction to the extent that they do not seek money damages.
We overrule appellants' first issue as it relates to their claims for back pay or other money damages.

II. Dismissal With Prejudice

In their second issue, appellants contend, in the alternative, that, if the trial court properly dismissed any of their claims for lack of jurisdiction, the court erred by dismissing their suit with prejudice. (7) Appellants argue that they should have been given the opportunity to seek legislative consent to sue, citing Li v. University of Texas Health Science Center, 984 S.W.2d 647 (Tex. App.--Houston [14th Dist.] 1998, pet. denied). We consider this issue only as it applies to appellants' claims for money damages.

The supreme court has recognized a conflict in the case law regarding whether a dismissal for lack of jurisdiction should be with or without prejudice. See Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). In Sykes, the issue was whether the plaintiff's claims came within the waiver of the Tort Claims Act. Id. at 637. The supreme court held that the dismissal was with prejudice because it fully and finally adjudicated whether the claims came within the Tort Claims Act. Id. The court further explained:

If a plaintiff has been provided a reasonable opportunity to amend after a governmental entity files its plea to the jurisdiction, and the plaintiff's amended pleading still does not allege facts that would constitute a waiver of immunity, then the trial court should dismiss the plaintiff's action. Such a dismissal is with prejudice because a plaintiff should not be permitted to relitigate jurisdiction once that issue has been finally determined. Id. at 639. The plaintiff in Sykes amended her petition after the County filed its plea to the jurisdiction, but the amended petition did not bring the claims within the Tort Claims Act. Id.

In the present case, appellants did not amend their petition, but it was not for lack of a reasonable opportunity to do so. In response to the City's plea, they argued that immunity had been waived. In response to the City's response, appellants argued additional grounds for waiver. The order dismissing their lawsuit for lack of jurisdiction was signed over 11 months after the City's plea was filed. Thus, appellants had a reasonable opportunity to amend their petition.

We hold that the trial court did not err by dismissing appellants' claims for money damages with prejudice. Accordingly, we overrule appellants' second issue.

III. Exhaustion of Administrative Remedies

Appellants' third issue is a response in anticipation of a contention by the City that appellants' claims were properly dismissed because appellants did not exhaust their administrative remedies with respect to their claims for back pay.

As anticipated, the City contends that some of appellants' claims--those accruing before October 1, 2001--are subject to the grievance procedure of the Human Resources Policy Manual of the City, and that those claims accruing after that date--the effective date of the CBA--are subject to the grievance/arbitration procedure in the CBA. The City notes that the CBA procedure applies to complaints "involving the interpretation, application, or alleged violation of any provision of the CBA." Because we have concluded that the City's governmental immunity from suit precludes any recovery of money damages, we need not consider whether appellants were first required to submit such claims to a grievance or arbitration procedure. However, we must determine whether appellants were required to exhaust the remedies of the CBA before filing suit for a declaration of their rights under sections 143.038 and 143.041.

The CBA defines a grievance as "any dispute, claim, or complaint involving the interpretation, application or alleged violation of any provisions of this Agreement, not including matters reserved to management in the Management Rights clause in Article III or to disciplinary matters covered in Article XXIII." Appellants' claims in this case were based solely on the method used by the City in calculating appellants' pay when they were temporarily filling a higher-classified position. We have reviewed the CBA in the appellate record and find nothing relating to the payment of firefighters who are temporarily assigned to a higher-classified position.

Chapter 74 of the Local Government Code provides that a collective bargaining agreement may specifically preempt a state or local civil service provision. Tex. Local Gov't Code Ann. § 174.006 (Vernon 1999). Article XXII of the CBA, entitled "Compensation," establishes firefighters' base compensation and certificate pay and provides, "To the extent that any provision of this Article conflicts with or changes Chapter 143 of the Texas Local Government Code or any other applicable statute, . . . this Agreement shall supersede such provisions." However, base compensation and certificate pay are not the subject of sections 143.038 and 143.041 and, conversely, compensation while filling a higher-classified position is not the subject of CBA Article XXII.
Appellants' petition did not complain about the interpretation, application, or violation of any provision of the CBA. Therefore, appellants' complaints did not meet the CBA's definition of "grievance" and were not subject to its procedures. We hold that appellants' claims are not governed by the CBA and that, therefore, the administrative remedies within the CBA do not apply.

CONCLUSION

We affirm the trial court's judgment to the extent that it dismissed appellants' claims for money damages. We reverse the judgment of the trial court to the extent that it dismissed appellant's claims for declaratory and injunctive relief and remand the case to the court below for further proceedings.

Sam Nuchia
Justice

Panel consists of Justices Nuchia, Jennings, and Higley.

1. Tex. Local Gov't Code Ann. § 143.001-.089 (Vernon 1999 & Supp. 2006).
2. Tex. Civ. Prac. & Rem. Code Ann. § 37.001-.011 (Vernon 1997 & Supp. 2006.
3. After the Texas Supreme Court issued its opinion in Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006), appellants, in a supplemental brief, abandoned their claims, in their original brief, that the City's governmental immunity had been waived by the provision in the Local Government Code that home rule municipalities "may plead and be impleaded in any court," and the Baytown City Charter, which gives it the authority to "sue and be sued," to "contract and be contracted with," and to "implead and be impleaded in all courts." In Tooke, the court held that terms such as "sue and be sued" and "plead and be impleaded," standing alone, do not waive governmental liability. Id. at 342-43. In so holding, the court overruled Missouri Pacific R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812 (Tex. 1970).
4. See Tijerina v. City of Tyler, 846 S.W.2d 825 (Tex. 1992); Lee v. Downey, 842 S.W.2d 646 (Tex. 1992); Kierstead v. City of San Antonio, 643 S.W.2d 118 (Tex. 1982); Int'l Ass'n of Fire Fighters, Local Union No. 936 v. Townsend, 622 S.W.2d 562 (Tex. 1981); Duckett v. City of Houston, 495 S.W.2d 883 (Tex. 1973); Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex. 1961); and Morrison v. City of Fort Worth, 155 S.W.2d 908 (Tex. 1941).
5. Tex. Labor Code Ann. §§ 451.001-.003 (Vernon 2006).
6. Tex. Gov't Code Ann. §§ 554.001-.010 (Vernon 2004).
7. The order of dismissal does not recite that it is with prejudice. However, we deem the dismissal to be with prejudice. See Harris County v. Sykes, 136 S.W.3d 635, 636 (Tex. 2004) (holding that dismissal for lack of jurisdiction after opportunity, but failure, to cure is with prejudice).