MEMORANDUM OPINION

No. 04-10-00927-CV

CITY OF BENAVIDES,

Appellant

v.

Celeste M. PENA, Ildefonso R. Hernandez, Jr., Ronaldo R. Raymond, Jr., Christopher R. 

Oliveira, and Dawn Gonzalez,

Appellees

From the 229th Judicial District Court, Duval County, Texas

Trial Court No. DC-10-196

Honorable Alex William Gabert, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

Delivered and Filed: March 23, 2011

REVERSED AND RENDERED

Appellees Celeste Pena, Ildefonso Hernandez, Jr., Ronaldo Raymond, Jr., Christopher 

Oliveira, and Dawn Gonzalez (collectively “the employees”) were employees of the City of 

Benavides (“the City”) until the City’s Mayor, Ernestina Gonzalez, terminated their employment. 

After they were terminated by the Mayor, the employees filed suit against the City seeking 

injunctive and declaratory relief because they believed the City’s Mayor acted beyond her 
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statutory authority. The City responded by filing a plea to the jurisdiction, asserting that its 

governmental immunity bars the employees’ suit. The trial court, however, denied the City’s 

plea to the jurisdiction and the City brought this interlocutory appeal. On appeal, the City 

challenges the trial court’s ruling that it is not immune from the employees’ suit. Because the 

parties do not dispute the underlying facts and the issues raised on appeal involve the application 

of well-settled principles of law, we issue this memorandum opinion pursuant to Texas Rule of 

Appellate Procedure 47.4. We reverse the district court’s order denying the City’s plea to the 

jurisdiction and render judgment dismissing the employees’ suit for want of jurisdiction. 

Although the employees’ petition does not include the term “ultra vires,” the employees’ 

suit is, in substance, an ultra vires suit because it seeks to require the City’s compliance with 

state statutory provisions. See Tex. Dep’t of Ins. v. Reconveyance Servs., Inc., 306 S.W.3d 256, 

258-59 (Tex. 2010) (per curiam) (determining that although the plaintiff’s petition did not 

include the term “ultra vires,” its allegations and requested declarations were, in substance, ultra 

vires claims and were barred by sovereign immunity under City of El Paso v. Heinrich, 284

S.W.3d 366 (Tex. 2009)). The Texas Supreme Court has explained “that suits complaining of 

ultra vires action may not be brought against a governmental unit possessed of sovereign 

immunity, but must be brought against the allegedly responsible government actor in his [or her] 

official capacity.” Reconveyance Servs., 306 S.W.3d at 258. The record in this case shows that 

the employees sued the City rather than the responsible government actor in her official 

capacity—Mayor Gonzalez. Consequently, pursuant to controlling Supreme Court precedent, 

see id. at 258-59; Heinrich, 284 S.W.3d at 372-73, we must conclude the trial court erred in 

denying the City’s plea to the jurisdiction because the employees made their claims against the 

City itself, which retains its governmental immunity under the circumstances, as opposed to the 
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responsible government actor (Mayor Gonzalez). See also Wynne v. Lower Colo. River Auth., 

No. 03-10-00402-CV, 2010 WL 5020062, at *2 (Tex. App.—Austin Dec. 9, 2010, no pet.)

(mem. op.); City of Dallas v. Turley, 316 S.W.3d 762, 769-72 (Tex. App.—Dallas 2010, pet. 

filed). 

The trial court’s order denying the City’s plea to the jurisdiction is therefore reversed and 

judgment is rendered dissolving the court’s temporary injunction and dismissing the employees’ 

suit for want of jurisdiction. 

Catherine Stone, Chief Justice