Opinion
No. 05-05-00102-CV
Opinion issued February 1, 2006.
On Appeal from the 101st Judicial District, Dallas County, Texas, Trial Court Cause No. 04-04664-E.
Affirmed.
Before Justices BRIDGES, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
Appellant Teresa Ward Cooper appeals the trial court's grant of the plea to the jurisdiction brought by the City of Dallas (the City). She asserts that the court has subject-matter jurisdiction because the City has waived sovereign immunity by express legislative waiver and conduct. We affirm.
Background
Cooper, a sergeant in the Dallas Police Department, was denied a promotion to Police Lieutenant. In January 2002, Cooper filed a grievance alleging that she was discriminated against on the basis of her race and gender. Cooper's husband filed an open-records request under the Public Information Act, seeking records regarding the evaluation of Cooper by a promotional-assessment center. Tex. Gov't Code Ann. ch. 552 (Vernon 2004 Supp. 2005). The City withheld examination records, relying on an exception to disclosure requirements. The City also requested a determination on the matter from the Texas Attorney General, who decided some of the records were subject to disclosure. The City appealed that ruling in a separate suit against the Attorney General, brought in Travis County.
Cooper's grievance proceeded to the City's Civil Service Board (the Board) for resolution. Cooper filed a request with the Board pursuant to its authority to issue subpoenas for documents and persons. Cooper requested that subpoenas issue for twenty-eight groups of documents, twenty-one named individuals, and seven groups of unnamed individuals described as having participated in the promotional process. She also requested disclosure of the examination documents that her husband had previously requested and which the Attorney General had ruled were subject to disclosure.
The City filed a motion to quash the subpoenas of unnamed individuals as being "vague and burdensome." It also sought to quash most of Cooper's document requests as being irrelevant and burdensome. After a hearing, the Board granted the motion to quash most of the requested documents, citing that the request was "vague and unduly burdensome." Cooper filed this declaratory judgment action, specifically requesting that the trial court (1) declare the Board's ruling on the City's motion to quash in error, (2) order the City to produce all documents and to identify all "unnamed" witnesses, and (3) order subpoenas issued for all witnesses. The City filed a plea to the jurisdiction, urging that it had not waived its immunity from suit. The trial court granted the plea without giving reasons. Cooper filed this appeal.
I. Sovereign Immunity
Sovereign immunity deprives a trial court of subject-matter jurisdiction over lawsuits against the State or other governmental units unless immunity has been waived. Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Whether a court has subject-matter jurisdiction is a question of law, to be reviewed de novo. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). "[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. 2005). When determining whether there is a clear and unambiguous waiver of immunity from suit, we generally resolve any ambiguity in favor of retaining immunity. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003). Cooper asserts the City's immunity is waived through language in section 51.075 of the local government code, which states a home-rule municipality "may plead and be impleaded in any court," and through language in the Dallas City Charter that the City has the power to "sue and be sued" and "to implead and be impleaded." Tex. Local Gov't Code Ann. § 51.075 (Vernon 1999); Dallas City Charter ch. II, § 1(2), (3). This Court has rejected that argument. City of Dallas v. Reata Construction Corp., 83 S.W.3d 392, 398 (Tex.App.-Dallas 2002), rev'd on other grounds, No. 02-1031, 2004 WL 726906 (Tex. Apr. 2, 2004) (mtn. for reh'g granted).
Cooper also asserts that the City waived immunity through its conduct, relying on the supreme court opinion in Reata, 2004 WL 726906 at *1, 2. She argues that the City's challenge to Cooper's discovery request in the grievance procedure and the City's filing of the action against the Attorney General fall within the ambit of conduct constituting waiver of immunity.
In Reata, the supreme court held that the City of Dallas waived its governmental immunity from suit by intervening and bringing a claim for damages against Reata, a party in the suit. Id. The court held, "When the City filed its plea in intervention against Reata, it subjected itself to the jurisdiction of the trial court and waived its governmental immunity from suit with regard to Reata's claims germane to the matter in controversy." Id. at *3. Cooper's reliance on Reata is misplaced. In that case, the City had filed its own action seeking damages against a party in the suit. Here, the City has not filed an action for damages against Cooper. Likewise, pursuant to proper procedure, the City's action in Travis County was not brought against Cooper, but against the Attorney General. Accordingly, Reata does not support waiver through conduct in this case.
Cooper also asserts that a provision in the Dallas City Code governing Civil Service Board procedures expresses a clear and unambiguous waiver of immunity. Cooper makes no supporting argument. She has thus waived this argument. Tex.R.App.P. 38.1(h).
II. Declaratory Judgment
Cooper asserts that the trial court has jurisdiction under the declaratory judgment act. She contends her action is proper under that act because she seeks construction of legislative pronouncements. The declaratory judgment act (the DJA) reads in pertinent part:
A person . . . whose rights, status, or other legal relations are affected by a statute [or] municipal ordinance . . . may have determined any question of construction or validity arising under the . . . statute [or] ordinance . . . and obtain a declaration of rights, status, or other legal relations thereunder.
Tex. Civ. Prac. Rem. Code Ann. § 37.004(a) (Vernon 1997).
Section 37.006 states:
In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be made a party and is entitled to be heard . .
Id. § 37.006(b). See Tex. Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994) (noting DJA contemplates governmental entities must be joined in suits to construe their legislative pronouncements).
A declaratory judgment action is merely a procedural device for deciding matters already within a court's subject-matter jurisdiction. Beacon Nat'l Ins. Co. v. Montemayor, 86 S.W.3d 260, 267 (Tex.App.-Austin 2002, no pet.). The DJA does not itself confer jurisdiction or substantive rights, and "it cannot change the basic character of a lawsuit." Id. The power of courts to issue declaratory judgments under the DJA in the face of administrative proceedings is limited. Id. An administrative body is entitled to exercise its statutory duties and functions without interference from the courts, unless it exceeds that statutory authority. Id. (citing Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978)).
Cooper asserts she is requesting that the court "construe the statute and determine its effects on subpoenas in Civil Service Hearings." She argues immunity is expressly waived by the DJA "when a party seeks a court's construction of a statute or rule," relying on Beacon, 86 S.W.3d at 266.
We reject Cooper's characterization of this suit as one seeking "construction" of any legislative pronouncement. Cooper's suit requests the court to determine that the Board incorrectly denied her discovery requests and that it order the issuance of all requested subpoenas in conjunction with an internal administrative procedure. Cooper does not even allege that the Board lacked authority to determine whether subpoenas should issue for all the requested discovery. Thus, the case does not present a question whether a governmental entity has acted within its authority. See, e.g., Leeper, 893 S.W.2d 432 (suit challenging state officials' construction of compulsory school-attendance law); W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 840 (1958) (suit maintainable against state official for wrongfully imposing a statutory tax burden). Neither does Cooper request the court to construe the Public Information Act. Rather, she merely asks the court to follow the Attorney General's construction of that act-which, moreover, is the subject of a pending appeal in Travis County. Accordingly, Cooper's petition does not present a question of "construction" of a statute or ordinance under section 37.004(a) of the DJA, and Cooper's complaints are not the proper subject of a declaratory judgment action. Cooper has not alleged a sufficient basis for subject-matter jurisdiction.
We affirm the trial court's grant of the City's plea to the jurisdiction and its dismissal of Cooper's action.