Stephens v. City of Houston (Tex.App.- Houston [1st Dist.] June 12, 2008)(Keyes)
(City of Houston litigation, public employment, declaratory judgment suit dismissed for lack of standing,
controversy over termination of employment moot, UDJA, termination of employment was final and not
appealable.)

HOLDING: We conclude that the CSC issued a final order of dismissal which Stephens had no right to
appeal and that he did not timely raise a constitutional challenge to that order. Thus, there is no live
controversy affecting Stephens's constitutional rights. Because Stephens was permanently dismissed as a
City employee and he failed to appeal the final dismissal order of the CSC on constitutional grounds, his
claims are now moot and he lacks a legally cognizable interest in obtaining the declaratory relief he seeks.
See Williams, 52 S.W.3d at 184. Moreover, the legislature has not conferred on the district courts the right to
review a municipal employee's termination and to order reinstatement and back pay. See Ferrell, 248
S.W.3d at 159. Nor does the Declaratory Judgment Act confer jurisdiction on the courts to adjudicate claims
seeking to establish the basis for monetary relief. See IT-Davy, 74 S.W.3d at 855, 856. We hold that the
district court lacked subject matter jurisdiction over Stephens's declaratory judgment action and, therefore,
the court did not err in granting the City's plea to the jurisdiction.

DISMISS APPEAL: Opinion by Justice Evelyn Keyes  
Before Justices Taft, Keyes and Alcala
01-06-00851-CV        Bartholomew U. Stephens v. City of Houston, et als
Appeal from 270th District Court of Harris County
Trial Court Judge: Hon. Brent Gamble  

O P I N I O N

Appellant, Bartholomew U. Stephens, challenges the trial court's order that granted a plea to the jurisdiction
in favor of appellees, the City of Houston, Mayor Bill White, Toni Lawrence, Carol Galloway, Mark Goldberg,
Ada Edwards, Addie Wiseman, M.J. Khan, Pam Holm, Carol Alvarado, Gordon Quan, Shelley Sekula-Gibbs,
Ronald Green and the City of Houston Civil Service Commission for Municipal Employees (collectively
referred to as "the City"). In four issues on appeal, Stephens argues that (1) the City Council and
government of the City of Houston ignored the limitations and delegations in the Charter of the City of
Houston; (2) the City of Houston ignored a rejection of a Charter change by the voters by adopting an
ordinance that contradicts the existing Charter language; (3) a department head in the Houston City
government improperly terminated a city employee because authority to terminate rests exclusively with the
City's Mayor; and (4) Texas courts may properly review the termination of an employee of a municipality
governed by a City Charter.

The City responds that the district court properly granted its plea to the jurisdiction because there was no
live controversy between the parties when Stephens sued, Stephens lacked standing to bring this action
under the Declaratory Judgment Act, and therefore, the court lacked subject matter jurisdiction over this suit.

We affirm.

Background

Stephens had been employed by the City of Houston since 1989. In March 2005, Stephen Williams, the
Director of the City's Health and Human Services Department, notified the Civil Service Commission for
Municipal Employees of the City of Houston ("CSC") that he had indefinitely suspended Stephens pursuant
to article V-a, section 3 of the Houston City Charter and Houston City Code § 14-182(b). (1) Stephens was
also notified that he was indefinitely suspended and that he could appeal the decision. Stephens appealed
Williams's decision to the CSC. After reviewing documentation and hearing testimony, the CSC "upheld and
sustained" Stephens's indefinite suspension in April 2005, resulting in his permanent dismissal from City
employment under article V-a, section 3 of the City Charter. Stephens did not appeal the CSC's final
decision terminating his employment with the City.

On July 18, 2006, nearly a year after the CSC upheld his termination, Stephens filed an original petition
seeking a declaration that the City had unlawfully amended a separate article of its charter--article VI,
section 7a--two months before he was indefinitely suspended in March 2005 by amending the Houston Code
of Ordinances (Houston Code section 14-182(b)) to permit the City's department directors to suspend civil
service employees indefinitely. (2) He sought a further declaration that his dismissal was beyond the power
of the department head and, therefore, wrongful, and he sought reinstatement to his prior position and back
pay.

In his petition, Stephens contended that before January 25, 2005, the effective date of section 14-182(b) of
the City Code, the "mayor had the exclusive authority and power to indefinitely suspend any civil service
employee, as granted to [the mayor] by Article VI, section 7a of the Houston City Charter." Stephens argued
that "[t]o give department head[s] and director[s] this type of authority, the Charter must be amended by the
voters of the City of Houston pursuant to Article XI, Section 5 of the Texas Constitution." (3) Stephens also
argued that the CSC had "acted outside its authority in upholding the decision by a director to indefinitely
suspend [Stephens] and other civil service employees similarly situat[ed]." In his request for relief, Stephens
asked that "Houston Code § 14-182(b) be declared unconstitutional, unlawful, or invalid in violation of Article
XI, Section 5 of the Texas Constitution" and "that he be reinstated to the position of Environmental
Investigator III and awarded back pay from the date of his indefinite suspension until the date of
reinstatement."

The City responded to Stephens's filing of this cause of action by a plea to the jurisdiction contending (1)
that Stephens's claims were moot because his suspension was final and there was no timely appeal from
that suspension on constitutional grounds and (2) that as a non-employee of the City, he lacked standing
either to bring a declaratory judgment action complaining about the provisions under which he was
terminated or to seek reinstatement and back pay. The City also argued that it made no difference who had
suspended Stephens because the CSC heard Stephens's appeal and upheld the order.

At the hearing on the City's plea to the jurisdiction, the City argued that Stephens lacked standing because
there was no justiciable controversy that the court could resolve. The City reasoned that there was no
appeal from the CSC ruling and that Stephens did not dispute that the decision of the CSC was final. The
City also argued that, in the absence of a live controversy that could affect his rights, Stephens lacked
standing to bring an original action for a judgment declaring the statute under which he was terminated
invalid and seeking damages and reinstatement under the Declaratory Judgment Act.

After the hearing, Stephens was permitted to file a response to the plea to the jurisdiction. He argued that
the CSC's April 2005 order terminating his employment was not final as to the validity of the amended
ordinance. He also argued that the "mayor has express[] power to remove all employees subject to review by
the Civil Service Commission." He acknowledged that a department head has the power to suspend a Civil
Service employee, but he disputed that a department head has charter authority to "indefinitely suspend," or
to "remove," a civil service employee. (4) The trial court granted the City's plea to the jurisdiction and
dismissed the case.

Plea to the Jurisdiction

Standard of Review

"A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard
to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
Although the plaintiff's claims may form the context against which the jurisdictional plea is determined, the
plea generally "should be decided without delving into the merits of the case." Id. "[A] court deciding a plea
to the jurisdiction is not required to look solely to the [plaintiff's] pleadings but may consider evidence and
must do so when necessary to resolve the jurisdictional issues raised." Id. at 555. However, in general, "the
proper function of a dilatory plea does not authorize an inquiry so far into the substance of the claims
presented that plaintiffs are required to put on their case simply to establish jurisdiction." Id. at 554. We
review de novo a trial court's ruling on a jurisdictional plea, construing the pleadings in the plaintiff's favor
and looking to the pleader's intent. See Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849,
855 (Tex. 2002); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). In addition,
courts always have jurisdiction to determine their own jurisdiction. Houston Municipal Employees Pension
Sys. v. Ferrell, 248 S.W.3d 151, 158 (Tex. 2007).

Stephens's Standing to Bring This Declaratory Judgment Action

Stephens filed this declaratory judgment action more than a year after his permanent dismissal from City
employment. He argues that he has standing to bring this action "because the decision rendered by the Civil
Service Commission did not dispose of his claim that Defendant, the mayor, and city council exceeded
powers of the charter in permitting his department head to terminate him." Stephens also maintains that he is
a taxpayer and a registered voter of the City. The City argues that Stephens lacks standing because there is
no longer a controversy between the parties and his claims are therefore moot. The City also argues that
the trial court lacked jurisdiction over the declaratory judgment action because immunity from suit bars
declaratory judgment actions that seek to establish the basis for monetary damages.

Standing is implicit in the concept of subject matter jurisdiction. Tex. Ass'n of Bus., 852 S.W.2d at 443.
Subject matter jurisdiction is essential to the authority of a court to decide a case. Id. In analyzing issues of
standing, we focus on whether a party has a sufficient relationship with the lawsuit to have a "justiciable
interest" in the outcome. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). When a
plaintiff is personally aggrieved, he has standing. Id.

The standing doctrine requires that there be a "real controversy between the parties" which "will be actually
determined by the judicial declaration sought." Id. at 849 (quoting Nootsie, Ltd. v. Williamson County
Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996)). Standing to challenge the constitutionality of a statute
requires that the plaintiff have suffered some actual or threatened injury under the statute that
unconstitutionally restricts his own rights. Barshop v. Medina County Underground Water Conservation Dist.,
925 S.W.2d 618, 626 (Tex. 1996). "If a case becomes moot, the parties lose standing to maintain their
claims." Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (citing City of Los Angeles v. Lyons, 461 U.S. 95,
105-06, 103 S. Ct. 1660, 1666-67 (1983) (holding that inmates who had been released from jail lacked
cognizable interest in obtaining injunctive or declaratory relief)). A litigant's request for relief under the
Declaratory Judgment Act neither confers jurisdiction on a court nor changes a suit's underlying nature, nor
does it waive sovereign immunity to suits that seek to establish a basis for obtaining monetary damages. See
IT-Davy, 74 S.W.3d at 855, 856; see also Ferrell, 248 S.W.3d at 159 (holding that trial court lacks
jurisdiction when legislature has not authorized trial court to grant relief sought).

In this case, Stephens agrees that the CSC reviewed and upheld his indefinite suspension, resulting in the
termination of his employment with the City, and that the CSC's order was final. The only question, therefore,
is whether the CSC's final order was appealable.

Article V-a, section 3 of the City Charter is entitled "Removal of Employees." Last amended in 1982, section
3 authorizes a department head to suspend a City employee indefinitely, at which point "his salary shall
cease." (5) Houston, Tex., City Charter, art. V-a, § 3. The department head's order of suspension must be
filed with the CSC, which may review the order if the employee files an appeal of the decision within ten days.
Id. Section 3 further provides that the suspended employee "may, if he desires, file an appeal with the civil
service commission which shall hold a hearing and render a decision in writing within thirty days after it
receives the appeal as to whether the employee shall be permanently dismissed from the service of the city,
or reinstated in his employment." Id. The Charter does not provide a right of appeal from the CSC's final
order of dismissal or reinstatement.

It is well-established that there is no right to judicial review of an administrative order without an authorizing
statute unless the order violates the constitutional rights of the plaintiff. Ferrell, 248 S.W.3d at 158; General
Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 597 (Tex. 2001). Specifically, in the absence of
statutory authority, a municipal city employee has no inherent right to appeal an order of the CSC to the
district court, "unless the commission's order affects vested property rights or otherwise violates some
constitutional provision." See Harris v. Civil Service Comm'n for Municipal Employees of the City of Houston,
803 S.W.2d 729, 730 (Tex. App.--Houston [14th Dist.] 1990, no writ) (holding that "suspension was final
following the decision of the hearing board, and [employee] had no right to appeal absent clear statutory
authorization or a claim that his constitutional rights had been violated"); Smith v. City of Houston, 552
S.W.2d 945, 947 (Tex. Civ. App.--Houston [1st Dist.] 1977, no writ). Otherwise, the words "final and binding"
when used to describe an administrative decision, preclude judicial review of the decision. Ferrell, 248
S.W.3d at 158.

After Williams indefinitely suspended Stephens, Stephens appealed to the CSC. The CSC conducted a
hearing in which it considered testimony and evidence and upheld the indefinite suspension. The CSC's
disposition resulted in Stephens's permanent dismissal from City employment under article V-a, section 3 of
the City Charter. Stephens did not challenge that decision on the grounds that the CSC's order affected his
"vested property rights or otherwise violated some constitutional provision." See Smith, 552 S.W.2d at 947.
Likewise, there was no challenge that City Code section 14-182(b) illegally amended article V-A, section 3 of
the City Charter, under which Stephens was terminated, and thus affected his constitutional rights.

We conclude that the CSC issued a final order of dismissal which Stephens had no right to appeal and that
he did not timely raise a constitutional challenge to that order. Thus, there is no live controversy affecting
Stephens's constitutional rights. Because Stephens was permanently dismissed as a City employee and he
failed to appeal the final dismissal order of the CSC on constitutional grounds, his claims are now moot and
he lacks a legally cognizable interest in obtaining the declaratory relief he seeks. See Williams, 52 S.W.3d at
184. Moreover, the legislature has not conferred on the district courts the right to review a municipal
employee's termination and to order reinstatement and back pay. See Ferrell, 248 S.W.3d at 159. Nor does
the Declaratory Judgment Act confer jurisdiction on the courts to adjudicate claims seeking to establish the
basis for monetary relief. See IT-Davy, 74 S.W.3d at 855, 856. We hold that the district court lacked subject
matter jurisdiction over Stephens's declaratory judgment action and, therefore, the court did not err in
granting the City's plea to the jurisdiction.

Conclusion

We dismiss the appeal for want of jurisdiction. We deny all outstanding motions as moot. (6)

Evelyn V. Keyes

Justice


Panel consists of Justices Taft, Keyes, and Alcala.

1. Article V-a, section 3 provides in relevant part:

Any employee may be suspended by the head of the department under which he is employed, and
thereupon his salary shall cease. The officer making the order of suspension shall forthwith file with the civil
service commission a statement of the suspension and his reasons therefor. Within ten days after such
suspension the employee so suspended may, if he desires, file an appeal with the civil service commission
which shall hold a hearing and render a decision in writing within thirty days after it receives the appeal as to
whether the employee shall be permanently dismissed from the service of the city, or reinstated in his
employment. All such hearings shall be public; the decision of the commission shall be final. . . .

Houston, Tex., City Charter, art. V-a, § 3 (Act of March 18, 1905; added by amendment Oct. 15, 1913)
(emphasis added).

Houston City Ordinance section 14-182(b), effective January 25, 2005, provides,

A department director may, for just cause, indefinitely suspend, demote, or reduce in pay, any civil service
employee in his department (or division) which action shall be subject to appeal and review by the
commission pursuant to the authority vested in it by the Charter and these rules.

Houston City Code § 14-182(b).

2. Article VI, section 7a gives the Mayor "the power to appoint, subject to confirmation by the City Council,
such heads of departments in the administrative service of the City as may be created by ordinance, and the
Mayor shall have the power to remove such heads of departments at any time he shall see fit without
confirmation by the City Council. The Mayor shall also have the power to appoint and remove all other
employees of the City, such appointments and removals to be subject, however, to the civil service
provisions of the Charter." Houston, Tex., City Charter, art. VI, § 7a. But see Article V-a, section 3, supra
note 1 (granting removal authority to department heads). Stephens was removed from City employment
pursuant to article V-a, section 3.

3. Article XI, section 5 of the Texas Constitution provides, "Cities having more than five thousand (5000)
inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose,
adopt or amend their charters." Tex. Const. art. XI, § 5.

4. But see Houston, Tex., City Charter, art. V-a, § 3, supra at note 1 (expressly granting department heads
power to dismiss municipal employees permanently).

5. See note 1 supra.

6. The City of Houston filed a motion to strike Stephens's authorities.