Opinion
No. 03-08-00423-CV
Filed: November 20, 2009.
Appealed from the District Court of Travis County, 345th Judicial District No. D-1-GN-07-002423, Honorable Orlinda Naranjo, Judge Presiding.
Dismissed as Moot.
Before Chief Justice JONES, Justices WALDROP and HENSON.
MEMORANDUM OPINION
A number of current and former Austin fire fighters (collectively, "the Fire Fighters") filed suit against the City of Austin ("the City"), claiming violations of the Fire Fighter and Police Officer Civil Service Act, see Tex. Loc. Gov't Code Ann. §§ 143.001-.363 (West 2008) ("the Civil Service Act"). Specifically, the Fire Fighters allege that City of Austin Ordinance 020926-13 violates sections 143.041 and 143.044 of the Civil Service Act by preventing them from simultaneously receiving both certification pay and educational incentive pay. See id. §§ 143.041, .044. The Fire Fighters seek declaratory, injunctive, and mandamus relief, as well as an award of back pay. The City filed a partial plea to the jurisdiction in connection with the back pay claims of a certain portion of the Fire Fighters. The trial court denied the plea, and the City filed the present interlocutory appeal. Meanwhile, the parties filed cross-motions for summary judgment, and the trial court issued a final order granting summary judgment in favor of the City. The Fire Fighters' appeal from the summary judgment is cause number 03-08-00594-CV. On the parties' joint motion, we consolidated the two appeals for the limited purpose of consideration.
The names of the parties in cause number 03-08-00423-CV have been taken from the City of Austin's notice of appeal, while the names of the parties in cause number 03-08-00594-CV have been taken from the Fire Fighters' notice of appeal. To the extent there are differences in the names of individual plaintiffs, these differences are also reflected in the parties' notices of appeal.
The parties' motions for leave to file supplemental post-submission briefs are hereby granted.
Because we are compelled to reach the merits of the summary judgment regardless of our determination of the jurisdictional issue, and because we affirm the trial court's grant of summary judgment dismissing all of the Fire Fighters' claims in cause number 03-08-00594-CV, we dismiss as moot the City's interlocutory appeal of the denial of its partial plea to the jurisdiction.
DISCUSSION The City concedes that the trial court had subject-matter jurisdiction over all of the Fire Fighters' claims other than their claims for back pay. The City further concedes that governmental immunity has been waived with regard to the back pay claims of at least nine of the individual plaintiffs because they first asserted their claims by filing this suit after the June 15, 2007 effective date of the immunity waiver found in local government code section 180.006. See Tex. Loc. Gov't Code Ann. § 180.006 (West 2008) (waiving immunity for back pay claims by fire fighters or police officers against employing municipality); see also id. historical note [Act of June 15, 2007, 80th Leg., R.S., ch. 1200, § 3, 2007 Tex. Gen. Laws 4071, 4072] (waiver of immunity "applies only to a claim . . . initially asserted on or after the effective date [June 15, 2007] of this Act."). The City argues, however, that because the remainder of the plaintiffs filed a previous lawsuit under the same theory of recovery in 2006, they "initially asserted" their back pay claims prior to the effective date of section 180.006 and therefore cannot take advantage of the immunity waiver.
The City also argues, in the alternative, that section 180.006 cannot be applied retroactively to claims that accrued before June 15, 2007. At a minimum, however, the City concedes that governmental immunity does not bar the back pay claims of nine of the individual plaintiffs to the extent those claims accrued after June 15, 2007.
In supplemental briefing to this Court, the City states that its "partial jurisdictional challenge implicates only Plaintiffs' claims for retrospective money damages — not subject matter jurisdiction to hear the Plaintiffs' claims. Therefore, if this Court upholds the trial court decision [granting summary judgment] in Appeal No. 03-08-00594, there is no need to reach the City's jurisdictional arguments." We agree. Given that the jurisdictional challenge implicates only the back pay claims raised by some of the Fire Fighters and does not affect the Fire Fighters' claims for prospective relief or the trial court's jurisdiction to determine whether the City violated the Civil Service Act, we must review the merits of the summary judgment regardless of our holding on the jurisdictional question.
While an appellate court typically must examine questions of jurisdiction, even when not raised by the parties, in order "to ensure that its decision on the merits is not merely advisory," Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 853-54 (Tex. 2000) (Hecht, J., dissenting), there is no potential for an advisory opinion in this case, as the City concedes that the trial court had jurisdiction over the Fire Fighters' claims that the City violated the Civil Service Act.
Furthermore, in light of our opinion issued today in cause number 03-08-00594-CV, in which we held that the trial court's order granting summary judgment and dismissing all of the Fire Fighters' claims was proper, any determination regarding jurisdiction as to the back pay claims of certain Fire Fighters would have no effect on the rights of the parties. See VE Corp. v. Ernst Young, 860 S.W.2d 83, 84 (Tex. 1993) (per curiam) ("[A]n appeal is moot when the court's action on the merits cannot affect the rights of the parties."); cf. Dardas v. Fleming, Hovenkamp Grayson, P.C., 194 S.W.3d 603, 621 n. 7 (Tex. App. 2006, pet. denied) (declining to resolve jurisdictional question that "would not affect our judgment in this case"). On that basis, we dismiss the City's appeal from the trial court's denial of its partial plea to the jurisdiction.
CONCLUSION
We dismiss as moot the City's interlocutory appeal from the trial court's denial of its partial plea to the jurisdiction.