IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

════════&#= 9552;═══

No. 05-0587

════════λ= 2;═══

Houston Municipal = Employees Pension=20 System,

Petitioner,

Craig E. Ferrell, = Jr., et=20 al.,

Respondent

════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══════════ = 552;═

On Petition for Review from = the

Court of Appeals for the First = District of=20 Texas

════════&#= 9552;═════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══

Argued January 23,=20 2007

=20 Justice Green = delivered the=20 opinion of the Court, in which Chief=20 Justice Jefferson, Justice Hecht, Justice O=92Neill, Justice Wainwright, = Justice=20 Brister, Justice Medina, and Justice Johnson joined.

=20 Justice = Brister filed a concurring opinion, = in which=20 Justice O=92Neill = joined.

=20 Justice Willett = did not=20 participate in the decision.

=20 This case concerns whether members of the Houston Municipal = Employees=20 Pension System (HMEPS) may bring a declaratory judgment action to = declare their=20 rights under the statute that created HMEPS even when, as HMEPS argues, = that=20 statute provides no right to judicial review of decisions by HMEPS=92s pension board. HMEPS sought the = dismissal, for want=20 of jurisdiction, of an action for injunctive relief and declaratory = judgment=20 brought by Craig E. Ferrell, Jr. and 29 other plaintiffs (plaintiffs,=20 collectively). The trial court issued an interlocutory order denying = HMEPS=92s jurisdictional plea, and the court of = appeals=20 affirmed the trial court=92s order. 177 S.W.3d 502, = 517=20 (Tex. App.=97Houston [1st Dist.] 2005). = HMEPS=20 appealed to this Court,[1] contending: (1) the court of = appeals=20 erred in affirming the trial court=92s denial of HMEPS=92s=20 jurisdictional plea and in analyzing the case under the doctrine of = exclusive=20 jurisdiction, rather than holding that Article 6243h of the Texas = Revised Civil=20 Statutes provides no right to judicial review of pension board = decisions; and=20 (2) Ferrell=92s claims are barred by sovereign immunity.[2] On the day Ferrell=92s response = to HMEPS=92s petition for review was due to be filed, Ferrell took a voluntary non-suit without = prejudice.=20 We hold Ferrell has an absolute right to non-suit his claims, and, = because=20 Ferrell=92s case is now moot, we vacate the court of appeals=92 judgment = as to=20 Ferrell and the trial court=92s orders to the extent that they affect = Ferrell=92s=20 claims, and we dismiss Ferrell=92s case. We further hold that the 29 = plaintiffs=20 who joined Ferrell=92s action are not entitled to seek a declaratory = judgment and=20 injunctive relief in this case. We therefore reverse the court of = appeals=92=20 judgment as to the 29 plaintiffs and dismiss their claims for want of=20 jurisdiction.

I. Facts

=20 An eleven-member pension board has broad authority to administer, = manage,=20 and operate HMEPS, which provides retirement benefits to certain = employees of=20 the City of Houston under Article 6243h of the = Texas=20 Revised Civil Statutes. The pertinent text of Article 6243h reads:

(x)=20 The pension board shall manage the pension fund under this Act and under = the=20 Internal Revenue Code of 1986, as amended, and may:

(1)=20 adopt, for the administration of the pension = fund,=20 written rules and guidelines;

(2)=20 interpret and construe this Act and any summary plan, descriptions, or = benefits=20 procedures, except that each construction must meet any qualification=20 requirements established under Section 401, Internal Revenue Code of = 1986, as=20 amended;

(3)=20 correct any defect, supply any omission, and = reconcile=20 any inconsistency that appears in this Act in a manner and to the extent = that=20 the pension board considers expedient to administer this Act for the = greatest=20 benefit of all members;

(4)=20 determine all questions, whether legal or factual, relating to the = eligibility=20 for membership, service, or benefits or relating to the administration = of the=20 pension fund to promote the uniform administration of the pension fund = for the=20 benefit of all members and retirees; and

(5)=20 establish and maintain records necessary or = appropriate=20 for the proper administration of the fund.

(y)=20 The determination of any fact by the pension board and the pension = board=92s=20 interpretation of this Act are final and binding on any interested = party,=20 including members, deferred participants, retirees, eligible survivors,=20 beneficiaries, and the city.

Tex. Rev. Civ. = Stat. art. 6243h=20 =A7 2(x)=96(y).

=20 Ferrell began his law enforcement career as a cadet in the = Houston = Police Academy and, from 1977 to 1990, = served as=20 a police officer in the Houston Police Department. During that period, = Ferrell=20 participated in the Houston Police Officers=92 Pension System (HPOPS). = In 1990,=20 having obtained a law degree, Ferrell went to work for the Legal = Services=20 Division of the Houston Police Department, where he still works. Because = he was=20 no longer classified as a police officer, he withdrew his contributions = from=20 HPOPS and began accruing credit in HMEPS, a separate pension system = covering=20 employees of the City of Houston. In 1998, HMEPS issued a = written=20 =93Acknowledgment of Statutory Application=94 which read, in pertinent = part:

A person=20 is not eligible for HMEPS membership for the time period during which = the person=20 was in a position covered by another pension system to which the City of = Houston=20 contributes (=93City pension system=94).

. . .=20 .

A person=20 cannot receive any credited service in HMEPS for the time during which = the=20 person was not a member of HMEPS.

Later that=20 year, Ferrell requested that HMEPS award him service credit for the time = he=20 spent as a police officer. In January 1999, HMEPS Executive Director = David Long=20 sent Ferrell a letter denying his request and informing him that =93a = person may=20 receive credited service in HMEPS only for time during which the person = is a=20 member of HMEPS.=94

=20 In March 2003, Ferrell sued HMEPS on multiple theories, including = breach=20 of fiduciary duty, breach of contract, and negligent misrepresentation. = Ferrell=20 also sought a declaratory judgment that he was entitled to pension = benefits in=20 HMEPS for each year he worked for the City of Houston, beginning in 1977. HMEPS = filed a=20 motion to dismiss, or plea to the jurisdiction, seeking to dismiss = Ferrell=92s=20 suit for lack of subject matter jurisdiction on the basis of sovereign = immunity.=20 Ferrell then amended his petition, dropping all claims except his action = for=20 declaratory judgment and injunctive relief. In a second amended = petition,=20 Ferrell expressly eliminated any request for=20 money damages but sought an additional declaration that he was entitled = to=20 service credit in HMEPS for his time in the Houston Police Academy.

=20 Subsequently, in a first supplemental petition, 29 Houston police = officers=20 joined Ferrell=92s action for declaratory judgment and injunctive = relief.[3] Specifically, they sought a = declaration=20 that they were entitled to service credit in HMEPS for the time they = spent as=20 cadets in the Houston Police Academy, from May 1977 to = September 1977,=20 and an order directing the board to credit their retirement service = accounts=20 accordingly. The 29 plaintiffs allege they originally requested such = credit from=20 the pension board in a March 2003 letter. HMEPS claims to have no record = of any=20 such letter. Regardless, the record shows that HMEPS became aware of the = 29=20 plaintiffs=92 claims when the plaintiffs joined Ferrell=92s action, if = not before,=20 and the record further indicates the pension board has not yet made a=20 determination as to those claims.[4]

=20 In a supplemental motion to dismiss, HMEPS again asserted it was = immune=20 from suit and contended the actions brought by Ferrell and the 29 = additional=20 plaintiffs were not ripe because HMEPS had not yet determined whether = they were=20 entitled to service credit for their time spent in the police academy. = HMEPS=20 also asserted the trial court lacked subject matter jurisdiction over = Ferrell=92s=20 claim for service credit for the years of his employment as a police = officer=20 because a declaratory judgment in his favor would entitle him to pension = benefits exceeding the maximum jurisdictional limit of the trial=20 court.

=20 The trial court denied HMEPS=92s plea = to the=20 jurisdiction solely on the basis of HMEPS=92s assertion=20 that it was immune from suit. HMEPS appealed to the court of appeals = which,=20 holding =93the doctrine of exclusive jurisdiction does not apply in the = context of=20 this action for declaratory judgment,=94 affirmed the trial court=92s = denial of=20 HMEPS=92s plea to the jurisdiction. 177 S.W.3d at 516. HMEPS then timely filed this=20 appeal.

II. = Analysis

=20 =93A party may contest a trial court's subject matter = jurisdiction by=20 filing a plea to the jurisdiction.=94 Tex. = Dep=92t of Transp. v. Jones, 8 S.W.3d 636, 638 = (Tex. = 1999).=20 A =93person,=94 in this case HMEPS, may appeal an interlocutory = order that=20 grants or denies a plea to the jurisdiction by a governmental unit. = Tex. Civ. Prac. & Rem. = Code =A7=A7=20 51.104(a)(8), 101.001(3)(D); Tex. A&M = Univ. = Sys.=20 v. Koseoglu, 233 S.W.3d 835, 841 = (Tex. 2007). = We review a=20 trial court=92s order granting or denying a plea to the jurisdiction de = novo.=20 Hoff v. Nueces=20 County, 153 S.W.3d 45, 48 = (Tex.=20 2004). When reviewing such an order, =93we consider the facts = alleged by=20 the plaintiff[s] and, to the extent it is relevant to the jurisdictional = issue,=20 the evidence submitted by the parties.=94 Tex. = Natural Res.=20 Conservation Comm=92n v. White, 46 = S.W.3d 864, 868=20 (Tex.=20 2001).

=20 In the court of appeals, HMEPS argued it had sovereign immunity = from=20 Ferrell=92s claims and the claims of the additional 29 plaintiffs. 177 S.W.3d at 508=9609. However, HMEPS no longer = asserts=20 immunity with respect to the 29 plaintiffs. Rather, HMEPS asserts = sovereign=20 immunity only with respect to Ferrell=92s claims, arguing he has not = pleaded a=20 valid claim for declaratory relief. Ferrell, HMEPS contends, merely = recharacterized his suit for monetary damages as a = declaratory judgment action.[5] See Tex. Natural Resource = Conservation=20 Comm=92n v. IT-Davy, 74 S.W.3d 849, 856 = (Tex. 2002) = (holding that=20 a plaintiff =93cannot circumvent the State=92s sovereign immunity from = suit by=20 characterizing a suit for money damages, such as a contract dispute, as = a=20 declaratory-judgment claim=94).

A. Ferrell=92s Non-suit

=20 Ferrell=92s non-suit, if we accept it, nullifies HMEPS=92s contention that Ferrell has failed to = plead a valid=20 claim for declaratory relief. HMEPS argues we need not accept = Ferrell=92s=20 non-suit.[6] For support, HMEPS points to = Singleton=20 v. Pennington. 568 S.W.2d 382, 383=9684 (Tex. Civ.=20 App.=97Dallas 1978), rev=92d on = other=20 grounds, 606 S.W.2d 682 (Tex. 1980). In Singleton, the = plaintiff=20 sought a non-suit after the court of appeals issued an opinion in the=20 plaintiff=92s favor and the defendant filed a motion for rehearing. = Id.=20 at 382=9683. The court of appeals =93had already reached a = decision on=20 the motion for rehearing and had completed the first draft of an opinion = on that=20 motion.=94 Id. at=20 383. As the court of appeals explained, dismissal of the cause at = that=20 stage of the proceedings would have left the court of appeals=92 = original opinion=20 outstanding without any indication of whether the court of appeals=92 = views had=20 changed. Id. at=20 383=9684. In this case, because we take jurisdiction over the = claims of the=20 29 plaintiffs who joined Ferrell=92s action for declaratory judgment, = permitting=20 Ferrell=92s non-suit does not change the fact that the court of = appeals=92 opinion=20 rightly survives. Under our decision = in=20 University of Texas Medical Branch at Galveston v. Estate of = Blackmon,=20 195 S.W.3d 98, 100 (Tex. 2006), Ferrell has an absolute = right to=20 take a non-suit in this Court because he took it before he presented all = his=20 evidence and rested his case in chief. See Tex. R. Civ. P. 162 (=93At = any time=20 before the plaintiff has introduced all his evidence other than rebuttal = evidence, the plaintiff may dismiss a case, or take a non-suit, which = shall be=20 entered in the minutes.=94). As such, we accept Ferrell=92s non-suit, = noting that it=20 moots his case, not merely his appeal. See Tex. R. App. P. 56.2, = 60.2(e);=20 Arizonans for Official English v. Arizona, 520 U.S. 43, 71=9672 = (1997);=20 Houston Cable TV, Inc. v. Inwood W. Civic = Ass=92n, 860 S.W.2d 72, 73 (Tex. 1993). = Accordingly, we=20 vacate the court of appeals=92 judgment as to Ferrell and the trial = court=92s orders=20 to the extent that they affect Ferrell=92s claims, and we dismiss = Ferrell=92s case.=20 We therefore need only consider HMEPS=92s = appeal as it=20 concerns the claims of the additional 29 plaintiffs.

B. Right to Appeal Pension Board = Determinations

=20 The court of appeals analyzed Article 6243h and HMEPS=92s appeal under the doctrine of exclusive = jurisdiction.=20 177 S.W.3d at 512. When the Legislature = grants an=20 administrative agency sole authority to make an initial determination in = a=20 matter, the agency has exclusive jurisdiction over the matter. Subaru of Am., Inc. v. David McDavid=20 Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002). The = doctrine of=20 exclusive jurisdiction concerns a trial court=92s original jurisdiction = and is=20 relevant when the plaintiff has not exhausted his administrative = remedies.=20 Id. (=93[I]f an agency has exclusive jurisdiction, a party must = exhaust all=20 administrative remedies before seeking judicial review of the agency=92s = action.=94); see also In re Entergy Corp., 142 S.W.3d 316, 321 = (Tex. 2004)=20 (=93An agency has exclusive jurisdiction when the Legislature has = granted that=20 agency the sole authority to make an initial determination in a = dispute.=94).=20 Only after exhaustion has occurred may a plaintiff seek judicial = review of=20 the administrative decision, and then he may do so =93only at the time = and in the=20 manner designated by statute.=94 Cash Am. = Int=92l, Inc. v.=20 Bennett, 35 S.W.3d 12, 15 (Tex. 2000).

=20 In this case, the 29 plaintiffs claim to have exhausted all of = their=20 administrative remedies. HMEPS contested the 29 plaintiffs=92 claim of = exhaustion=20 in the trial court but does not oppose their claim of exhaustion on = appeal to=20 this Court. The record is unclear as to whether exhaustion in fact = occurred.[7] But it is important to note = that whether=20 the 29 plaintiffs exhausted their administrative remedies is of no = consequence=20 in this case if, as HMEPS argues, Article 6243h expressly denies pension = members=20 a right to judicial review of the pension board=92s determinations, or = is silent=20 as to that question. There is no right to judicial review of an = administrative=20 order unless a statute explicitly provides that right or the order = violates a=20 constitutional right. Gen. Servs. Comm=92n v. Little-Tex Insulation Co., 39 = S.W.3d 591, 599=20 (Tex. 2001);=20 Cont=92l Cas. Ins. Co. v. = Functional=20 Restoration Assocs., 19 S.W.3d 393, 397 (Tex. 2000); Firemen=92s & Policemen=92s = Civil Serv. Comm=92n v. = Kennedy, 514=20 S.W.2d 237, 239=9640 (Tex. 1974); = City of=20 Amarillo v. Hancock, 239 S.W.2d 788, 790=9692 (Tex. 1951). Accordingly, when = an act is=20 either silent on the question of appeal or expressly denies a right to = appeal, a=20 party may appeal only =93where the administrative action complained of = violates a constitutional = provision.=94=20 Hancock, 239 S.W.2d at 790. = Where, as=20 here, no constitutional violation is at issue and the question is merely whether the = Legislature has=20 specifically provided for judicial review, courts look to the plain = meaning of=20 the statutory text to determine the Legislature=92s intent. See Cont=92l Cas., 19 S.W.3d at 398 (=93Our objective in = construing a=20 statute is to determine and give effect to the Legislature=92s = intent. In=20 so doing, we look first to the plain and common meaning of the = statute=92s words.=94=20 (citation omitted)).

=20 Article 6243h provides that =93[t]he determination of any = fact by=20 the pension board and the pension board=92s interpretation of this Act = are final=20 and binding on any interested party.=94 Tex. Rev. Civ. = Stat. art. 6243h =A7=20 2(y). The words =93final and binding,=94 when used to describe an = administrative decision, preclude judicial review. See, e.g., = City of=20 Houston v. Jackson, 192 S.W.3d 764, 771 (Tex. 2006) (holding that = the words=20 =93final and binding=94 in section 143.057(c) of the Texas Local = Government Code=20 mean any review of an independent hearing examiner=92s decision through = an appeal=20 to the district court must be =93severely circumscribed=94). The 29 = plaintiffs argue=20 that they seek an interpretation of Article 6243h for the narrow purpose = of=20 declaring whether the statute authorizes a trial court to review the = pension=20 board=92s action. If indeed the plaintiffs seek only an=20 declaration of whether a trial court can review the pension board=92s = decisions,=20 then the trial court would have jurisdiction to interpret the statute = and make=20 such a declaration. See Camacho v. Samaniego,=20 831 S.W.2d 804, 809 (Tex. 1992). Courts always have = jurisdiction to=20 determine their own jurisdiction. Id. But=20 Article 6243h does not give the trial court jurisdiction to = review any=20 pension board decision regarding the 29 plaintiffs=92 request for = retirement=20 service credit.[8]

=20 As HMEPS argues and the 29 plaintiffs=92 petition indicates, the=20 plaintiffs=92 lawsuit did not merely seek a declaratory judgment = announcing=20 whether Article 6243h gives jurisdiction to the trial court to review a = pension=20 board decision. The petition seeks =93declaratory relief that = establishes . . .=20 entitlement to Pension Benefits,=94 asking the trial court to hold that = the=20 statute requires the pension board to credit each plaintiff=92s = retirement account=20 with time served while in the police academy, and that the pension board = was=20 violating the law by refusing to grant such credit. The 29 plaintiffs = further=20 requested that the trial court issue an injunction directing the pension = board=20 to comply with the trial court=92s interpretation of Article 6243h and = credit each=20 plaintiff=92s retirement account appropriately. Such relief, whether = labeled a=20 declaratory judgment or review of a pension board decision, exceeds the = power of=20 the trial court as limited by the =93final and binding=94 language of = Article 6243h.=20 Because the Legislature has not authorized the trial court to grant the = relief=20 sought, the trial court lacks jurisdiction over the case. See Metro. = Transit=20 Auth. v. Jackson, 212 S.W.3d 797, 801 (Tex. App.=97Houston [1st = Dist.] 2006,=20 pet. denied) (=93Jurisdiction is the power to adjudicate, that is, to = grant or=20 deny relief.=94); Elbar, Inc. v. = Claussen 774 S.W.2d 45, 53 (Tex. App.=97Dallas = 1989, writ=20 dism=92d) (=93The test of jurisdiction is = whether a court=20 ha[s] the power to enter upon an inquiry . . . .=94); see also Mason = v. Heirs=20 of Russell, 1 Tex. 721, 728 (1846) (=93Upon principle, it would seem = that the=20 operation of every judgment must depend on the power of the court to = render that=20 judgment; or in other words, on its jurisdiction over the subject = matter, which=20 it has determined.=94) Thus the trial court should have granted HMEPS=92s plea to the jurisdiction.

III. Conclusion

=20 The trial court erred in denying HMEPS=92s plea=20 to the jurisdiction. Because we accept Ferrell=92s non-suit, we vacate = the court=20 of appeals=92 judgment as to Ferrell and the trial court=92s orders to = the extent=20 they affect Ferrell=92s claims. With respect to the remaining = plaintiffs, we=20 reverse the court of appeals=92 judgment and, rendering the judgment the = court of=20 appeals should have rendered, dismiss for want of jurisdiction the 29=20 plaintiffs=92 action for declaratory judgment and injunctive relief.

=20 ______________________________

=20 PAUL W. GREEN

=20 JUSTICE

OPINION DELIVERED: = November 30,=20 2007

^[1]=20 The Texas Association of Public Employee Retirement Systems, the Houston = Police=20 Officers=92 Pension System, and the City of Dallas filed briefs of amicus curiae = in support=20 of HMEPS=92s appeal.

^[2]=20 The trial court, court of appeals, and parties have all referred to = sovereign=20 immunity rather than governmental immunity. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions = Property/Casualty=20 Joint Self-Insurance Fund, 212 S.W.3d 320, 324 (Tex. 2006)=20 (distinguishing sovereign immunity, which =93extends to various = divisions of state=20 government, including agencies, boards, hospitals, and universities,=94 = from=20 governmental immunity, which =93protects political subdivisions of the = State,=20 including counties, cities, and school districts=94 (citations = omitted)). Though=20 HMEPS=92s defense may be correctly = characterized as=20 governmental immunity, that issue is not before us, and we need not = address it=20 here.

^[3]=20 The 29 plaintiffs are: Al Pena, B.L. Chebret, Brad=20 Piel, Bubba Caldwell, C. Newman, Cole = Lester, G.L.=20 Blankenship, Gary Gryder, George Shaw, = Harold Barthe, J.J. Berry, J.M. Demartin,=20 Jeff Larson, Joe Pyland, John Miller, John = Walsh, John=20 Yencha, M. Donato, M.R.=20 Clark, Matt Calley, Patricia Murray, R.D. = Mosley, R.L.=20 Martin, Robert Sondoval, Rodney Johnson, = Shawn Palin, T.J. Carr, Tom Hayes, and Warren = Givens.

^[4]=20 HMEPS argues the plaintiffs failed to follow HMEPS=92s=20 established procedures for seeking the pension board=92s review of their = claims=20 for service credit. The plaintiffs dispute HMEPS=92s=20 assertion. HMEPS acknowledged and responded to the plaintiffs=92 claims = as early=20 as October 9, 2003, when HMEPS Executive Director David Long sent the=20 plaintiffs=92 counsel a letter stating:

Because it appears that Mr. Ferrell=92s claim = regarding=20 the May 23, 1977 to September 9, 1977 period of time is similar to the = claims of=20 the 29 other individuals you represent in the lawsuit, HMEPS will = provide a=20 response to all of those claims at the same time. In the meantime, we = are still=20 reviewing the claims.

In another letter to the plaintiffs=92 = counsel, dated=20 December 8, 2003, Mr. Long wrote, =93It appears that you are requesting = that HMEPS=20 respond to the claims of the 29 individuals listed on the petition in = addition=20 to Mr. Ferrell.=94 The letter went on to request additional information = as to some=20 of the =9329 individuals,=94 which the plaintiffs=92 counsel responded = to in a=20 December 29, 2003 letter. In the December 29 letter, plaintiffs=92 = counsel=20 requested information regarding HMEPS=92s = internal=20 procedure for deciding claims as well as any information regarding HMEPS=92s timetable for deciding the plaintiffs=92 = claims. The=20 record is unclear as to whether HMEPS made the relevant information = available to=20 the plaintiffs or otherwise adequately disseminated the information, but = it is=20 clear that HMEPS has, as of this date, neither affirmatively granted nor = denied=20 the 29 plaintiffs=92 claims for service credit. However, the 29 = plaintiffs argue=20 that under HMEPS=92s review policy, claims = to the=20 pension board that do not receive action should be considered denied = after 60=20 days. So in this case HMEPS=92s inaction may = operate as=20 a denial of the 29 plaintiffs=92 claims, but we need not decide that=20 issue.

^[5]=20 While HMEPS does not contend that the 29 plaintiffs=92 claims are in = reality=20 claims for monetary damages, HPOPS does advance such an argument in = their brief=20 of amicus curiae. The plaintiffs, they argue, in reality seek to impose=20 liability on the state for damages because they request declaratory = relief=20 establishing entitlement to pension benefits in the HMEPS retirement = system. We=20 need not and do not address that issue.

^[6]=20 HMEPS also does not oppose the non-suit so long as the core issue, = whether=20 Article 6243h provides a right to judicial review of the pension = board=92s=20 determinations, remains viable. Because we take jurisdiction over the = claims of=20 the additional 29 plaintiffs, that issue remains before us.

^[7]=20 See supra note 3.

^[8]=20 Though the 29 plaintiffs argue that the pension board has failed to = issue any=20 order at all regarding their claim for retirement credit, and thus there = could=20 not be a decision for the trial court to review, they also claim to have = exhausted all of their administrative remedies, which necessarily = entails=20 obtaining a final decision from the pension board. See supra note = 3.