1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00042-CV

__________________

MICHAEL SCOTT NIX, Appellant

V.

CITY OF BEAUMONT, TEXAS, Appellee

________________________________________________________________

On Appeal from the 172nd District Court

Jefferson County, Texas

Trial Cause No. D-205,570

__________________________________________________________________

MEMORANDUM OPINION

Michael Scott Nix (Nix or Appellant) appeals the trial court’s judgment 

granting a plea to the jurisdiction filed by the City of Beaumont (the City) and 

dismissing Nix’s claims against the City with prejudice. We affirm the trial court’s 

judgment.
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Background

The City’s Fire Chief indefinitely suspended Nix, a City of Beaumont fire

fighter, for violation of sick leave policies.

1 Nix appealed the suspension to the 

City’s Fire Fighters’ and Police Officers’ Civil Service Commission. See Tex. Loc.

Gov’t Code Ann. § 143.010. After a hearing, the Civil Service Commission signed 

an Order and found that the 2015-2020 Collective Bargaining Agreements (CBA) 

and the 2015 Abeyance Agreement between Nix and the former fire chief were valid, 

found that Nix violated the sick leave policy during the term of the 2015 Abeyance 

Agreement, and denied Nix’s appeal and permanently dismissed him from the 

Beaumont Fire & Rescue Department. 

On March 26, 2020, Nix filed an Original Petition, appealing the March 11, 

2020 Civil Service Commission Order.

2 See Tex. Loc. Gov’t Code Ann. 

§ 143.015(a) (authorizing a fire fighter “dissatisfied with any commission 

decision[]” to “file a petition in district court asking that the decision be set aside[]”). 

Nix’s Original Petition alleges that the Fire Chief wrongfully suspended Nix 

1 The Civil Service Act outlines the disciplinary process by which a 

municipality may suspend a fire fighter and the procedure for the appeal of a 

suspension. See Tex. Loc. Gov’t Code Ann. §§ 143.051-057. A fire department may 

suspend a fire fighter for a violation of the civil service rules. Id. § 143.052(b).

2 Nix’s Original Petition was filed in the 136th District Court. The City filed 

a Motion to Transfer the case to the 172nd District Court because that court 

previously heard Cause No. E-201,849. The trial court granted the Motion to 

Transfer. 
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indefinitely and that the Fire Chief’s decision was wrongfully ratified by the City’s 

Civil Service Commission under the Texas Constitution and Chapter 143 of the 

Texas Local Government Code and Chapter 544 of the Texas Government Code. In 

Nix’s Original Petition, he seeks a de novo review of the City’s Civil Service 

Commission Order and “declaratory and equitable relief and petition for 

ma[n]damus to order the Civil Service Commission of the City of Beaumont and its 

City of Beaumont Civil Service Commission to vacate the decision of March 11, 

2020[.]” 

The City filed an Answer, generally denying Nix’s claims. The City also filed 

a Plea to the Jurisdiction, arguing that Nix’s claims are barred by res judicata and 

that Nix’s appeal of the Civil Service Commission’s Order to the district court was 

untimely. The City argued that a previous case styled as Cause No. E-201,849 

involved identical parties and this Court issued an opinion on the appeal of that case 

and rejected all of Nix’s claims including his indefinite suspension and concluded 

that Nix failed to timely appeal the Civil Service Commission’s order. The City 

attached as evidence to its Plea to the Jurisdiction a copy of Nix’s First Supplemental

Original Petition and a Reporter’s Record from Cause No. E-201,849, a copy of this 

Court’s Opinion in the appeal of Cause No. E-201,849,3 an Affidavit of the City’s 

3 See Nix v. City of Beaumont, No. 09-18-00407-CV, 2019 Tex. App. LEXIS 

8836 (Tex. App.—Beaumont Oct 3, 2019, no pet.) (mem. op.).
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Personnel Director and Civil Service Director with attached email correspondence 

between him and Nix’s counsel, and the Order of the Beaumont Civil Service 

Commission. The City’s Plea to the Jurisdiction requested that the trial court dismiss 

Nix’s claims with prejudice for lack of jurisdiction. 

Nix filed a First Supplement to his Original Petition, adding claims that the 

City failed to comply with CBAs from 2012 to 2015, the City had no jurisdiction to 

enter into a March 20, 2015 Settlement Agreement, and that Nix did not waive any 

rights by the execution of that agreement. The Supplemental Petition requested a 

mandatory injunction requiring the City to vacate the disciplinary sentences and 

related records arising out of claims that Nix abused his sick leave. Nix also filed a 

Response to the City’s Plea to the Jurisdiction arguing that res judicata was not pled 

by the City in accordance with Rule 94 of the Texas Rules of Civil Procedure and 

res judicata did not apply because the Civil Service Commission did not have 

jurisdiction over the subject matter due to the City’s failure to comply with the CBA.

In response to the City’s argument that Nix failed to timely appeal from the Civil 

Service Commission’s March 11, 2020 Order, Nix’s only argument was that the 

Civil Service Commission’s Order was void because the commission had no 

jurisdiction.

The trial court granted the City’s Plea to the Jurisdiction, dismissing Nix’s 

claims against the City with prejudice. Nix filed a request for findings of fact and 
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conclusions of law and a notice of past due findings, but the trial court denied Nix’s 

request for the trial court to enter findings. Nix filed a motion for new trial which 

was overruled by operation of law. See Tex. R. Civ. P. 329b(c). Nix appealed. 

Issues on Appeal

Nix raises five issues on appeal. In issue one, Nix argues the City never 

“acquired subject matter jurisdiction over Nix’s appeals” because the City did not 

comply with the terms of the CBA. In issue two, Nix argues he was denied due 

process under Article I, section 19 of the Texas Constitution because of the “City’s 

exercise of nonacquired jurisdiction in terminating [Nix], without having explained 

its non-compliance with the CBAs” for 2012 to 2020. In issues three and four, Nix 

argues the City failed to plead waiver and res judicata as affirmative defenses and 

thereby waived those defenses. In issue five, Nix asserts he timely filed his claim 

with the district court appealing the March 11, 2020 Order of the Civil Service 

Commission. 

Standard of Review

Subject matter jurisdiction is essential to the authority of a court to decide a 

case. See Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 558 (Tex. 2016); Tex.

Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). The 

existence of subject matter jurisdiction is a question of law that we review de novo. 

See Wheelabrator Air Pollution Control, Inc. v. City of San Antonio, 489 S.W.3d 
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448, 451 (Tex. 2016). A plea to the jurisdiction “may challenge the pleadings, the 

existence of jurisdictional facts, or both.” Alamo Heights Indep. Sch. Dist. v. Clark, 

544 S.W.3d 755, 770 (Tex. 2018). A defendant who files a plea to the jurisdiction 

has the initial burden of meeting the summary judgment standard of proof for its 

assertion that the courts lack jurisdiction; if it does so, the plaintiff must then “show 

that a disputed material fact exists regarding the jurisdictional issue.” Mission 

Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). When a fact 

issue exists, the plea to the jurisdiction should be denied. Id. If the plaintiff fails to 

raise a fact question on the jurisdictional issue or the relevant evidence supporting 

the defendant’s assertion is undisputed, the plea to the jurisdiction must be granted 

as a matter of law. Id. “In determining whether a material fact issue exists, we must 

take as true all evidence favorable to the plaintiff, indulging every reasonable 

inference and resolving any doubts in the plaintiff’s favor.” Alamo Heights, 544 

S.W.3d at 771.

Untimeliness of Nix’s Suit 

Challenging the Order of the Civil Service Commission

We first address Nix’s fifth issue. In issue five, Nix acknowledges that he filed 

his suit with the district court on March 26, 2020, but he argues for the first time on 

appeal that it was timely-filed because the Supreme Court of Texas’ First Emergency 

Order Regarding the COVID-19 State of Disaster and Eighth Emergency Order 
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Regarding the COVID-19 State of Disaster “extend[ed] deadlines by 30 days.”4 See 

In re Eighth Emergency Order Regarding the COVID-19 State of Disaster, 597 

S.W.3d 844 (Tex. 2020); First Emergency Order Regarding the COVID-19 State of 

Disaster, 596 S.W.3d 265 (Tex. 2020). 

To challenge the decision of the Civil Service Commission, Nix had to file his 

suit in the district court as outlined in the governing statute and ask the district court 

to set aside the ruling of the Commission. See Tex. Loc. Gov’t Code Ann. 

§ 143.015(a). However, “[t]he petition must be filed within 10 days after the date 

the final commission decision: (1) is sent to the fire fighter . . . by certified mail; or 

(2) is personally received by the firefighter . . . or by that person’s designee.” Id.

Here, the jurisdictional facts relevant to this issue are undisputed. The City 

attached as evidence to its Plea to the Jurisdiction a March 11, 2020 email response 

from Nix’s attorney to the City’s Personnel Director’s email that same day advising 

Nix’s attorney of the Civil Service Commission’s decision and attaching the signed 

Order of the Civil Service Commission. The March 11, 2020 email response from 

Nix’s attorney stated, “I will be appealing this to the 172nd District Court or 

4 According to the appellate record, Nix never made this argument in the trial 

court. In fact, Nix’s statement regarding jurisdiction in his Original Petition filed on 

March 26, 2020 was that “[t]his is a petition for de novo review of the decision of 

the City of Beaumont’s Civil Service Commission rendered on March 11, 2020, 

pursuant to Tex. Loc. Gov’t[] Code 143.[]015.” On appeal, Nix cites no authority in 

support of his argument that the deadline was extended beyond ten days besides the 

First and Eighth emergency orders. 
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whichever court is assigned to handle the appeal.” In the trial court and on appeal, 

Nix does not dispute the City’s assertions in its Plea to the Jurisdiction that Nix’s 

designee – his attorney – personally received the commission’s decision on March 

11, 2020, and that Nix did not file his appeal with the district court until more than 

ten days (the appeal was filed 15 days after the attorney received the ruling) after his 

designee personally received the commission’s decision. The question here is 

whether the Texas Supreme Court’s COVID-19 emergency orders extended the 

deadline for him to timely file his lawsuit appealing the March 11, 2020 Civil Service 

Commission Order.

It is a matter of public record that the Supreme Court of Texas issued 

emergency orders “in response to the imminent threat of the COVID-19 pandemic[]” 

and “pursuant to Section 22.0035(b) of the Texas Government Code.” See generally 

First Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d at 

265. On March 13, 2020, two days after the commission’s decision in this case, the 

Supreme Court of Texas issued a First Emergency Order Regarding the COVID-19 

State of Disaster, which became effective March 13, 2020, and included the 

following in relevant part:

2. Subject only to constitutional limitations, all courts in Texas may in 

any case, civil or criminal—and must to avoid risk to court staff, parties, 

attorneys, jurors, and the public—without a participant’s consent:

a. Modify or suspend any and all deadlines and procedures, 

whether prescribed by statute, rule, or order, for a stated period 
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ending no later than 30 days after the Governor’s state of disaster 

has been lifted[.]

. . . 

3. All courts in Texas may extend the statute of limitations in any civil 

case for a stated period ending no later than 30 days after the 

Governor’s state of disaster has been lifted.

Id..

5 On April 1, 2020, the Supreme Court of Texas issued an Eighth Emergency 

Order Regarding the COVID-19 State of Disaster which stated the following in 

relevant part:

2. This Order amends paragraph 3 of the First Emergency Order 

Regarding the COVID-19 State of Disaster, issued March 13, 2020.

3. Any deadline for the filing or service of any civil case is tolled from 

March 13, 2020, until June 1, 2020, unless extended by the Chief 

Justice of the Supreme Court. This does not include deadlines for 

perfecting appeal or for other appellate proceedings, requests for relief 

from which should be directed to the court involved and should be 

generously granted.

597 S.W.3d at 844.

In Harris County v. Davidson, the Fourteenth Court of Appeals examined the 

application of the Supreme Court of Texas’ Twenty-Ninth Emergency Order 

Regarding the COVID-19 State of Disaster and concluded it did not extend the 

jurisdictional deadline for a plaintiff to timely file his Whistleblower lawsuit. 653 

S.W.3d 318, 322 (Tex. App.—Houston [14th Dist.] 2022, no pet.). The emergency

order at issue in Davidson provided, in relevant part, that “[s]ubject only to 

5 Generally, “may” is a permissive term that gives rise to discretionary 

authority or grants permission or a power. See Tex. Gov’t Code Ann. § 311.016(1).
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constitutional limitations, all courts in Texas may in any case, civil or 

criminal...modify or suspend any and all deadlines and procedures, whether 

prescribed by statute, rule, or order, for a stated period ending no later than February 

1, 2021.” See Twenty-Ninth Emergency Order Regarding the COVID-19 State of 

Disaster, 629 S.W.3d 863 (Tex. 2020). In Davidson, the plaintiff filed his lawsuit 

approximately nine months after the jurisdictional deadline in section 554.006(d)(1) 

of the Texas Government Code. 653 S.W.3d at 323. In concluding that the Supreme 

Court of Texas’s Twenty-Ninth Emergency Order Regarding the COVID-19 State of 

Disaster did not extend the jurisdictional deadline for the plaintiff to timely file his 

Whistleblower lawsuit, the Fourteenth Court of Appeals explained its rationale:

We previously addressed this issue in a non-Whistleblower Act case. 

In Lane v. Lopez, we held that “while the Emergency Order 

promulgated by the Texas Supreme Court gives us discretion to extend 

deadlines, it does not include the extension of deadlines for perfecting 

appeals.” No. 14-20-00633-CV, 2020 Tex. App. LEXIS 8587, 2020 

WL 643989, at *1 (Tex. App.—Houston [14th Dist.] Nov. 3, 2020, pet. 

denied) (mem. op). Other courts have held similarly. See Prescod v. 

Tkach, No. 02-21-00162-CV, 2002 Tex. App. LEXIS 655, 2022 WL 

246858, at *5 (Tex. App.—Fort Worth Jan. 27, 2022, no pet.) (mem. 

op.) (“The emergency orders do not give courts authority to revive 

jurisdiction once a jurisdictional deadline has passed.”) (emphasis in 

original); Green v. Villas on Town Lake Owners Assoc., Inc., No. 03-

20-00375-CV, 2021 Tex. App. LEXIS 8569, 2021 WL 4927414, at *9 

(Tex. App.—Austin Oct. 22, 2021, pet. [denied]) (mem. op.) (“While 

the order states that ‘requests for relief’ from deadlines for perfecting 

appeal should be ‘generously granted,’ nothing in the order alters the 

rules of appellate procedure or purports to grant jurisdiction where none 

would otherwise exist.”); Quariab v. El Khalili, No. 05-20-00979-CV, 

2021 Tex. App. LEXIS 1960, 2021 WL 960646, at *1 (Tex. App.—

Dallas March 15, 2021, no pet.) (mem. op.) (“Because the trial court 
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lacked jurisdiction over the case by the time the motion to reinstate was 

filed, it could not avail itself of the emergency order to reinstate the 

case, and the challenged orders are void.”).

Here, Davidson was required to file his lawsuit thirty days after the civil 

service commission’s denial of his appeal. Davidson did not meet this 

requirement, instead filing his lawsuit approximately nine months past 

the jurisdictional deadline. See Tex. Gov’t Code § 554.006(d)(1) 

(providing that an employee must file suit “not later than the 30th day 

after the date those procedures are exhausted to obtain relief under this 

chapter”). Because the Supreme Court’s Emergency Order does not 

create jurisdiction where none exits, we hold that the trial court erred 

when it denied Harris County’s motion for summary judgment. See 

Tex. Gov’t Code § 311.034 (“Statutory prerequisites to a suit, including 

the provision of notice, are jurisdictional requirements in all suits 

against a governmental entity.”); City of Madisonville, 620 S.W.3d

[375,] 379 [Tex. 2020] (holding that the Whistleblower Act filling 

deadline is “a jurisdictional statutory prerequisite to suit, and a claim 

that fails to meet that deadline may properly be disposed of by a 

jurisdictional plea”).

Id. at 322-23. 

We conclude that the deadline in section 143.015 of the Texas Local 

Government Code applicable to this case operates in a manner which is similar to 

the deadline in section 554.006(d)(1) discussed in Davidson. We agree with the 

reasoning outlined in the Davidson opinion and the cases cited therein that the 

Supreme Court’s COVID-19 Emergency Orders do not extend deadlines for 

perfecting an appeal, do not give courts authority to revive jurisdiction once an 

appellate deadline passes, and do not grant jurisdiction where none otherwise exists. 

See id. The Supreme Court’s First Emergency Order Regarding the COVID-19 State 

of Disaster and the Eighth Emergency Order Regarding the COVID-19 State of 
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Disaster give discretion to trial courts to extend deadlines and require a trial court to 

extend deadlines in instances where such an extension is necessary “to avoid risk to 

court staff, parties, attorneys, jurors, and the public[.]” See 597 S.W.3d at 844; 596 

S.W.3d at 265. Additionally, the First Emergency Order Regarding the COVID-19 

State of Disaster allows trial courts to extend statute of limitations in civil cases, and 

the Eighth Emergency Order Regarding the COVID-19 State of Disaster amended 

the First by tolling the deadline for filing or service in a civil case but expressly 

stated that the tolling does not include deadlines for perfecting an appeal. See Cantu 

v. Trevino, No. 13-20-00299-CV, 2020 Tex. App. LEXIS 7767, at *13 (Tex. App.—

Corpus Christi–Edinburg Sept. 24, 2020, no pet.) (mem. op.) (“[T]he supreme 

court’s emergency orders tolling deadlines explicitly do not apply to deadlines for 

perfecting appeal.”); Satterthwaite v. First Bank, No. 02-20-00182-CV, 2020 Tex. 

App. LEXIS 6010, at *3 & n.1 (Tex. App.—Fort Worth July 30, 2020, no pet.) 

(mem. op.) (recognizing that the Texas Supreme Court had issued an emergency 

order regarding the COVID-19 pandemic that extends filing and service deadlines 

but noting that the extension “does not include deadlines for perfecting appeal[]”

and dismissing the appeal as untimely). Even if either of the two emergency orders 

upon which Nix relies had granted the trial court the discretion to extend the ten-day

deadline to appeal to the district court, which neither does, Nix never filed a motion 

requesting an extension of the deadline to appeal. See Carrigan v. Edwards, No. 13-
13

20-00093-CV, 2020 Tex. App. LEXIS 8649, at *5 (Tex. App.—Corpus Christi–

Edinburg Nov. 5, 2020, pet. denied) (mem. op.) (“[T]he Texas Supreme Court’s 

Emergency Orders are not self-executing; they permit courts to extend deadlines, 

and they require extensions in certain instances, but they do not extend deadlines 

themselves.”). Nix does not argue that his failure to timely file his appeal resulted 

from the COVID-19 pandemic. See Jones v. White, No. 02-20-00198-CV, 2020 Tex. 

App. LEXIS 7716, at *2 (Tex. App.—Fort Worth Sept. 24, 2020, no pet.) (mem. 

op.) (“[T]he fact of the pandemic, standing alone, is not a reasonable explanation for 

a missed appellate deadline.”); see also Carrigan, 2020 Tex. App. LEXIS 8649, at 

*5 (“[T]he pandemic conditions do not generate a blanket excuse which can be used 

to extend deadlines indefinitely, especially in the absence of any specific explanation 

for why such extensions are warranted.”). We find nothing in our record that would 

have required the trial court to extend the filing deadline and no evidence of a 

necessity to do so to “avoid risk to court staff, parties, attorneys, jurors, and the 

public.” See 596 S.W.3d at 265.

We conclude Nix failed to timely file his appeal of the commission’s decision 

to the district court under section 143.015(a) of the Texas Local Government Code, 

and the trial court did not have jurisdiction over the appeal. Therefore, the trial court

correctly granted the City’s plea to the jurisdiction and dismissed Nix’s claims 

against the City with prejudice. We need not reach Nix’s other issues on appeal. See
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Tex. R. App. P. 47.1 (instructing appellate courts to “hand down a written opinion 

that is as brief as practicable but that addresses every issue raised and necessary to 

final disposition of the appeal[]”). Accordingly, we overrule Appellant’s issues and 

affirm the trial court’s judgment.

AFFIRMED.

_________________________

 LEANNE JOHNSON

Justice

Submitted on June 12, 2023

Opinion Delivered July 27, 2023

Before Horton, Johnson and Wright, JJ.