### MEMORANDUM OPINION
N o. 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 S immons , Justice Delivered and Filed: March 23, 2011 REVERSED AND RENDERED Appell ees 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 f iled suit against the City seeking injunc tive and declaratory relief because they believed the City’s Mayor acted beyond her04

- 10

- 00927

- CV

- 2

- statutory authority. The City responded by filing a plea to the jurisdiction, asserting that its governmental immunity bar s 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 an d 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 compl iance 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 req uested 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 con clude 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 the04

- 10

- 00927

- CV

- 3

- responsible government actor (May or 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 co urt’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