Opinion
No. 05-10-01384-CV
Opinion Filed August 16, 2011.
On Appeal from the 116th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 10-09573-F.
Before Justices BRIDGES, LANG-MIERS and MURPHY.
MEMORANDUM OPINION
Appellants City of Combine, Texas, Tonya Ratcliff, Timothy Ratcliff, and Willard Townzen bring this interlocutory appeal from the trial court's denial of their plea to the jurisdiction and motion to transfer venue. In two main issues, appellants challenge whether the trial court erred (1) in finding it had jurisdiction over appellees' claims against appellants and (2) in not transferring venue to Kaufman County. Subsumed within the first issue, appellants specifically challenge whether (1) appellees' penal code and Open Meetings Act claims present a justiciable controversy, (2) the City of Combine's sovereign immunity bars appellees' claims, (3) appellees' claims against Tonya Ratcliff, Timothy Ratcliff, and Townzen are barred by section 101.106 of the civil practice and remedies code, and (4) appellants' legislative or official immunities bar appellees' claims. We affirm in part and reverse in part.
Background
Appellants Tonya Ratcliff, Timothy Ratcliff, and Townzen assumed duties as elected city council members for the City of Combine in May 2010. At that time, appellees served the City of Combine in the following capacities: (1) K. Robinson served as a corporal with the police department and as city secretary; (2) B. Robinson served as chief of police; (3) Rookwood served as investigator with the police department; (4) Skurlock served as a sergeant with the police department; and (5) Ledbetter served as a police officer. On July 24, 2010, the city council unanimously, by a 5-0 vote, voted to terminate all of the reserve officers and two of the paid officers. All officers were given honorable discharges. At the same meeting, the city council voted unanimously to terminate K. Robinson as city secretary based on a no-confidence vote. According to appellees' third amended petition, on the same date, K. Robinson requested on behalf of herself, her fellow police officers, and the general public that the city council hold an open meeting to discuss her employment status along with the status of her fellow police officers' employment.
Appellees allege further that, instead, appellants held a closed meeting or executive session to discuss appellees' employment status, resulting in the termination of K. Robinson, B. Robinson, Rookwood, Skurlock, Ledbetter, and others.
The city council then conducted an open meeting on August 9, 2010 and again considered the future employment of the members of the police department. By a 5-0 vote, the council expressly ratified all actions taken at the July 24, 2010 meeting.
According to appellees, appellants made statements to third parties that K. Robinson, B. Robinson, Rookwood, Skurlock, Ledbetter, and their fellow police officers were terminated for issuing citations and then accepting cash from the alleged offender in lieu of filing the citation with the appropriate court for prosecution. Appellees allege that, on another occasion, appellants made statements to a different third party that K. Robinson, B. Robinson, Rookwood, Skurlock, Ledbetter, and other police officers were terminated for "breaking the law."
In their third amended petition, the live pleading below, appellees allege the following causes of action against the city and the remaining appellants in their capacity as city council members: (1) declaratory judgment-violation of section 39.03 of the penal code (Official Oppression); (2) declaratory judgment-violation of section 39.06 of the penal code (Misuse of Official Information); (3) declaratory judgment-violation of section 551.074 of the government code (Personnel Matters; Closed Meeting); (4) declaratory judgment-violation of section 551.101 of the government code (Requirement to First Convene in Open Meeting); and (5) defamation per se (slander).
After K. Robinson filed suit against appellants, alleging an Open Meetings Act violation, appellants filed a motion to transfer venue. Appellants later filed a plea to the jurisdiction, plea in abatement, special exceptions, original answer, and affirmative defenses. The trial court held a combined hearing on the motion to transfer venue and the plea to the jurisdiction and denied both. This interlocutory appeal followed.
Analysis
We turn to appellants' first issue regarding whether the trial court erred in finding that it had jurisdiction over appellees' claims.
A party may challenge the trial court's subject matter jurisdiction by filing a plea to the jurisdiction. Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether the trial court has subject matter jurisdiction is a question of law, which we review de novo. Id. The plaintiff has the burden to plead facts affirmatively showing the trial court has subject matter jurisdiction. Id. In conducting our review, we construe the pleadings liberally in favor of the plaintiff and look to the plaintiff's intent. Id. at 226-27. We consider the pleadings and evidence pertinent to the jurisdictional inquiry. Id.; City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, 686 (Tex. App.-Dallas 2003, pet. denied). However, we do not assess the merits of the plaintiff's claims. City of Richardson v. Gordon, 316 S.W.3d 758, 761 (Tex. App.-Dallas 2010, no pet.) (citing Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)). If the evidence creates a fact issue concerning jurisdiction, the plea to the jurisdiction must be denied. Miranda, 133 S.W.3d at 227-28.
In their live pleading, appellees seek declarations that appellants violated sections 39.03 and 39.06 of the penal code. A civil court, however, has no jurisdiction to render declarations of "rights, status or other legal relationships arising under a penal statute." See State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994).
Appellees concede that civil courts do not have jurisdiction over criminal matters, but ask this court to recognize an exception involving irreparable injury to property rights. In support of their argument, appellees cite us to this court's decision in Featherstone. See Featherstone v. Indep. Serv. Station Ass'n of Texas, 10 S.W.2d 124, 127 (Tex. Civ. App.-Dallas 1928, no writ). Appellees quote Featherstone for the proposition that "when necessary to protect civil or property rights, equity will interfere, and the fact that the commission of a statutory offense must be enjoined . . . will not deprive the court its jurisdiction in this respect." Id. at 127. They argue the Open Meetings Act confers a property interest regarding their employment and by "denying [them] a public hearing, [a]ppellants deprived [them] a public hearing, [a]ppellants deprived [them] of their property interest in their employment." Appellees' reliance on Featherstone is misplaced.
Appellees also cite us to R.F. Gluck v. Texas Animal Health Comm'n, 501 S.W.2d 412, 415 (Tex. App.-San Antonio 1973, writ ref'd n.r.e.). That court determined the statute at issue was essentially an administrative statute rather than a criminal statute. Id. at 415.
Therefore, we conclude the case is inapplicable here.
Featherstone was a 1928 case involving a suit to enjoin an alleged lottery scheme by a competing business; the plaintiffs claimed the lottery violated both the Texas Constitution and a related penal statute. By allowing the civil suit to enjoin the use of the lottery, the court noted that an "apt statement of the law" was that "when property or civil rights are involved and an irreparable injury to such rights is threatened or is about to be committed, for which no adequate remedy exists at law, that courts of equity will interfere by injunction for the purpose of protecting such rights." Id. (quoting State v. Patterson, 37 S.W. 478, 479 (Tex. Civ. App. 1896)).
Here, appellees are seeking a "declaratory judgment" that appellants violated two penal statutes-section 39.03 (Official Oppression) and section 39.06 (Misuse of Official Information). They seek damages, not injunctive relief. They seek a remedy at law, not equitable relief. They do not seek a declaration regarding the constitutionality of the statutes, and the court did not have jurisdiction over their request for a declaration that appellants violated these penal statutes. See Ryan v. Rosenthal, 314 S.W.3d 136, 143 (Tex. App.-Houston [14th Dist.] 2010, pet. denied) (noting court has civil jurisdiction to declare criminal statute constitutionally invalid and to enjoin its enforcement only when (1) there is evidence the statute is unconstitutionally applied, or (2) enforcement of an unconstitutional statute threatens irreparable injury to property rights). We sustain appellants' first issue as to the penal code claims. Appellants next challenge whether appellees' Open Meetings Act claims "present a justiciable controversy outside of [a]ppellants' immunities and invoke this Court's jurisdiction." Appellees also seek declarations, pursuant to their live pleading, that appellants violated sections 551.074 (Personnel Matters; Closed Meeting) and 551.101 (Requirement to First Convene in Open Meeting) of the government code.
These sections are derived from the Texas Open Meetings Act. Appellees contend appellants violated the open meetings requirements when they held the closed meeting-executive session on July 24, 2010, which resulted in the first decision to terminate appellees' employment.
However, appellees acknowledge the following in their brief: Having realized that the July 24, 2010 [meeting] violated the Texas Open Meetings Act . . . Appellants conducted a new City Council meeting on August 9, 2010. At the August 9, 2010 meeting, Appellants again considered the future employment of the members of the City of Combine Police Department, despite allegedly terminating these employees on July 24, 2010.
Appellees do not contest that the August 9, 2010 meeting was held in compliance with the Texas Open Meetings Act. A city council "can meet again and authorize actions which were previously authorized at an invalid meeting." City of Bells v. Texoma Util. Auth., 790 S.W.2d 6, 11 (Tex. App.-Dallas 1990, writ denied); see also Seale v. Jasper Hospital Dist. and Jasper Mem. Hosp. Foundation, Inc., No. 09-95-231-CV, 1997 WL 606857, *3 (Tex. App.-Beaumont 1997, pet. denied). The vote at the August 9, 2010 meeting ratified the actions taken at the July 24, 2010 meeting and, thereby, negated any justiciable controversy as to the validity of the July 24 vote. See City of Richardson, 316 S.W.3d at 761-62. We sustain appellant's first issue with regard to appellees' open meetings claims.
Finally, with regard to appellants' first issue, we consider whether the trial court had jurisdiction over appellees' claim of defamation per se (slander). Although appellees conceded in oral argument that they do not bring their defamation claim against the City of Combine, in their third amended petition, they assert the claim against the "defendants," which included the City of Combine. Intentional torts, such as defamation, do not fall within the scope of the waiver of immunity under the Tort Claims Act. Tex. Civ. Prac. Rem. Code Ann. § 101.057 (West 2010). See also Reeves v. Tex. Dept. of Ins., Div. of Worker's Compensation, No. 05-07-00020-CV, 2007 WL 3293629, * 2 (Tex. App.-Dallas Nov. 8, 2007, no pet.). Therefore, with regard to the defamation claim against the City of Combine, appellant's first issue should be sustained.
"Defendants" also included the individual council members: Tonya Ratcliff, Timothy Ratcliff, and Townzen. Appellants assert that appellees' defamation claim against the individuals is barred by subsections (a), (e), and (f) of section 101.106 of the civil practice and remedies code. That section provides, in pertinent part, as follows:
§ 101.106. Election of Remedies
(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.
. . .
(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.
(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. . . .
Tex. Civ. Prac. Rem. Code Ann. § 101.106 (a), (e), (f) (West 2005). The Act defines "employee" as "a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority . . . or a person who performs tasks the details of which the governmental unit does not have the legal right to control." Id. at § 101.001(2); see also Texas Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 398 (Tex. App.-Fort Worth 2008, no pet.).
Appellants contend appellees' suit is barred by the individuals' legislative and official immunities. Legislative immunity protects individuals only when the action reflects a discretionary, policymaking decision of a general application rather than an individualized decision based on particular facts. See Ware v. Miller, 82 S.W.3d 795, 804 (Tex. App.-Amarillo 2002, pet. denied). Government officials are entitled to official immunity from suit if they (1) were performing discretionary duties, (2) acted in good faith, and (3) acted within the scope of their authority. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Official immunity is an affirmative defense. Perry v. Texas A I Univ., 737 S.W.2d 106, 110 (Tex. App.-Corpus Christi 1987, writ ref'd n.r.e.). The burden is on the appellants to establish all elements of the defense. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984).
For section 101.106 to be a jurisdictional bar as to the individuals, we must first determine if they are employees. See Tex. Civ. Prac. Rem. Code Ann. § 101.106 (a), (e), (f). And, for appellants to invoke their official and legislative immunities, we must also determine if the alleged defamatory statements were made by the individuals in performing the duties of their offices. See City of Lancaster v. Chambers, 883 S.W.2d at 653; Ware, 82 S.W.3d at 804.
In our review, we consider the pleadings and evidence pertinent to the jurisdictional inquiry. Miranda, 133 S.W.3d at 225-26; City of Dallas, 133 S.W.3d at 686. We must construe the pleadings liberally in favor of appellees and look to the pleader's intent. Miranda, 133 S.W.3d at 226. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction, but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the appellees should be afforded the opportunity to amend. Sanders v. City of Grapevine, 218 S.W.3d 772, 777 (Tex. App.-Fort Worth 2007, pet. denied) (citing Miranda, 133 S.W.3d at 227-28)). However, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing appellees the opportunity to amend. Sanders, 218 S.W.3d at 777.
Appellees allege the following relevant facts as to their defamation claim: 27. In addition to the foregoing conduct, Defendants also made statements to third-parties that K. Robinson, B. Robinson, Rookwood, Skurlock, Ledbetter, and their fellow City of Combine police officers were terminated for issuing citations and then accepting cash from the alleged offender in lieu of filing the citation with the appropriate court for prosecution.
28. On a separate occasion, Defendants made statements to a different third-party that K. Robinson, B. Robinson, Rookwood, Skurlock, Ledbetter, and their fellow City of Combine police officers were terminated for "breaking the law."
Under the heading "Defamation Per Se (Slander)," appellees allege: 38.
As outlined above, [appellants] published statements of fact related to [appellees] in their official capacity and with respect to official conduct. [Appellants'] statements were defamatory, false, and made for the purpose of discrediting and dishonoring [appellees] with actual malice.
39. [Appellants'] statements were made publicly and with actual malice. [Appellees] suffered and continue to suffer an injury as a result of [appellants'] statements. Additionally, [appellees] are entitled to a presumption of injury.
No evidence was offered at the plea to the jurisdiction hearing. The pleadings and evidence, therefore, do not provide sufficient information for us to determine whether the individual appellants were acting as employees or performing the duties of the office when the alleged defamatory statements were made. Still, the pleadings, although vague, do not affirmatively negate the existence of jurisdiction over the individual appellants with regard to the defamation claim. See Sanders, 218 S.W.3d at 777. Therefore, we overrule appellants' first issue with regard to the defamation claim as to the individual defendants and remand that claim to the trial court for further proceedings. See id. In appellants' second main issue, numbered seven in their brief, appellants contend the trial court erred in denying their motion to transfer venue. However, appellants prematurely appeal the trial court's order regarding appellant's motion to transfer venue because no interlocutory appeal is available from a trial court's determination regarding venue. Tex. Civ. Prac. Rem. Code Ann. § 15.064(a) (West 2010); Tex. R. Civ. P. 87(6); Orion Enter., Inc. v. Pope, 927 S.W.2d 654, 659 (Tex. App.-San Antonio 1996, no writ). We dismiss issue seven for lack of jurisdiction. Conclusion
Having sustained appellants' first issue in part and overruled it in part, we reverse the part of the trial court's order denying appellants' plea to the jurisdiction with regard to the penal code and Open Meetings Act claims, and the defamation claim against the City of Combine. We dismiss those claims for want of jurisdiction. We also lack jurisdiction over appellants' premature attempt to appeal the order denying their motion to transfer venue. We affirm the part of the trial court's order denying appellants' plea to the jurisdiction with regard to the defamation claim against the individual appellants and remand to the trial court for proceedings consistent with this opinion.