Affirmed and Opinion filed April 29 , 2021.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00291

- CV

CITY OF HOUSTON , Appellant

V.

RAUL D. REYES AND ALBERT RODRIGUEZ , Appellee s

On Appeal from the 113th District Court

Harris County, Texas Trial Cour t C ause No. 2017

- 77123

OPINION

I n this interlocutory appeal, the City of Houston appeals th e trial c ourt ’ s order den ying the City ’ s motion for summary judgment based on lack of jurisdict i on

. 1 Concluding that the trial court ha s juris diction over this law s ui t, we affirm.

1 See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (allowing interlocutory appeal from trial court’s grant or denial of a plea t o the jurisdic ti on by a governmental unit)

.2 Background

I n 2011, the City and the Houston Professional Fire Fi ghters Association entered into a Collective Bargaining A g reement that governed the number and category of additional points to be added to prom otional examination test s core s

. The Collective Bargaining Agreement expired on June 30, 2017

. A t the time , a

ppell ees Raul D. Reyes and Albert Rodri gue z were fi refig hters
both em ployed as Senior C aptain s of Communications by the City of Houston Fire Department. T h ey took promo ti ona l ex a m i nation s on July 12, 20 17 for the position
of Chi ef Commu nicatio ns Officer

. T h e promotio nal examinations were administered by the Civil Service Commission under chapter 143 of the Local
Government Code

. 2 T h e Commission is also responsible for grading the

pr omotional examinations and calculating additional points based on seniority. 3

T h e Commission initial ly decided to score the exams under the terms of the Collective Bargaining Agreement , not under chapter 143

. R eyes and Rodriguez

sent letter s to the Commis s ion o n August 21, 2017 , each complaining that their test

scores were improperly calcula ted under the Collective Bar gaining Agreement a n d
should have been cal c ulated under Local Government Code section 143. 033,
which would have awarded them ten addi tional points

. 4 On Se ptember 18, 20 17 , the Commis s ion issued a n order sta ting that exams taken after Jul y 1, 2017 (the day after the Collecti ve Bargain ing A g reement expired) would be scored and
certified under chapter 143

. F i refighters Rose Arenas and Wear od W. H adnott timely appealed the Commis s ion ’ s September 18 decision in district court

. The

2 See Tex. Loc. Gov ’ t Co de § § 143.001

- . 403.

3 Se e Tex. Loc. Gov ’ t Code § 143.033(a), (b).

4 Under section 143.0 33, “ Each fire fighter is entitled to receive one point for eac h year of senio rity in that department , with a maximum of 10 points. ” Tex. Loc. Gov ’ t Code § 143 .033 (b).3

district court is sued a temporary restr aining order . T he Commis s ion then

re considered the matter o n November 6, 2017 and issued a final orde r reversing
its elf and h o lding that the promotional exams would be scored un der the Collectiv e Bargaining Agreement

. Reyes an d Rodriguez fi led this lawsuit on November 16, 2017, appealing the
November 6 order and see ki ng to have their exami n ations scored unde r c hapter
1 43. The C ity fil ed its motion for summary judgment , contending that the trial court lacked jurisdiction on t he basis that Reyes ’ s and Rodriguez ’ s complain ts were untimely , the Commis sion la cked subject matter to consider untimely complaints , and the trial court lac ked sub ject matter jurisdiction over the lawsuit.
T h e trial court denied the motion.

Discussi on In three issues, the City contends (1) the Commission did not have jurisdiction to issue the September 18 and November 6 orders under c h apter 143; (2) the Commi ssion d id not have jurisdiction to issue the orders under the
Collective B arga ining Agreement ; and (3) the trial court did not have jurisdiction

to r ule on the merits of Re yes and Rodriguez ’ s appe al from the November 6 order.
W e con clude that the Commis sio n ha d j urisdiction to issue the orders under chapter 143 and the trial court had jur i sdiction to rul e o n the merits of the appeal. 5
Immunity fro m suit may be asserted t hrough a plea to the jurisdiction or

an other procedural vehicle, such as a moti on for su mmary j ud gment. Alief Indep. Sch. Dist. v. Brantley , 558 S.W.3d 747, 754 (Tex. App.

— Houston [14th Dist.] 2018, pet. denied)

. Wh en a jurisdictional plea challenges the plaintiff’s pleadings, we determine whether the pleadings, constr ued in the plai ntiff’ s f avor, a ll ege facts

5 Accordingly , w e do not need to address whether the Commission had jurisdiction to issue the orders under the Collective Bargaining A g reement.4

sufficient to affirmatively demonstrate the trial court’s jurisdiction to hear the case.
Id . Whether a plead er has alleged fact s that affirmatively demonstrate a trial court’s subject matter jurisdiction is a ques tion of law we review de novo. Id

. If the plaintiff pleaded facts making o ut a prima facie case and the governmental unit instead challenges the exist ence of jurisdictio nal facts, we
consider the relevant evidence submitted. Id . Generally, the standard mi rrors that
of a summary judgmen t under Texas Rule of Civil Procedure 166a(c). Id . If the plaintiff’s factual allegations are challenged with relevant supporting evidence , to avoid dismissal, the plaintiff m ust raise at le ast a gen uine issu e of material fact to overcome the challenge to the trial court’s subject matter jurisdiction. Id . When the
evidence s ubmitted to support the plea implicates the merits of the case, we take as
true all evidence favorable to the plaintiff, indulgin g ev ery r easonable inference and resolving any doubts in the plaintiff’s favor. Id

. In its first issue, the City contends that the Commission did not have jurisdiction to issue the September 18 and November 6 orde rs because R e ye s an d Rodrig u e z did not invo ke the Commission ’ s jurisdiction by appeal ing or initiat i ng grievances challenging the Commission ’s ini tial test scoring under the Collective Bargaining A g reement

. See Tex. Loc. Gov ’t Code § 143.034 (a) ( “ If diss atisfied [with promot ional examinati on gradin g , a firefighter] may appeal, within five business days, to the commissio n for review in accordance with this chapter. ”), § 143.128 (a) ( “ To begin a grievance action, a fire fighter

. . . must file a

. . . step I grievance form with the person ’ s de partment head or departmental grievance counselor within 30 days a fter the date th e fire fighter

. . . kne w or should have known of the action or inaction for which the person feels aggrieved occurred. ” )

. Reyes and Rodriguez argue that they were not requir ed to tak e either of these step s
to invoke the Commission ’s jurisd ict ion and they were entitled to appeal the5

Commission ’ s November 6 order by f iling a petition in the trial court. See id

. § 143.015(a) (all owing a firefighter to file a petit ion in district court ap pealing “any commission decision

. . . within 10 days aft er the date the final commission
decision ” is sent by certified mail to or personally received by the fi refighter)

.
T here is a dearth of caselaw addressing this issue , but we find the sup reme
court ’ s White de cis io n to be instructive. See City of DeSoto v. White , 288 S.W.3d
389 (Tex. 2009)

. At issue w as whether a pre
- appeal not ice requ i rement under chapter 143 for a suspended officer is jurisdictional. Id . at 391. The police chief
delivered the officer a letter informing hi m that his suspension was indefinit e but
that he could file an appeal either with the Commis sion or an inde pendent t hird

party hearing examiner. Id

. (citing Tex. Loc. Gov ’ t Code §§ 143.052(c), (d); .057(a)). The letter did not n otif y the officer that an appeal to a hearin g examiner

w ould li mit his ability to seek further review with a district co urt, as req uire d by
the stat ute. Id

. (citing Tex. Loc. Gov ’ t Code § 143.05 7(a) , (j) )

. The officer ele cted

to have a hearing before a hearing examiner. Id . The hearing examiner upheld the

susp ens ion. Id . at 392.

The officer filed suit in district court, contend ing that the he aring exa miner lacked jurisdiction over his appeal. Id . The trial court an d court of a p peal s agreed, holding the notice req uirements under chapter 143 were jurisdictional and that

su bstantial compliance with the notice requirements was insu fficient to con fer juris diction

. Id . T h e City o f DeSoto argued that the notice provision is not jurisdicti onal. I

d

.
I n concluding that the notice provision i s n ot jurisdictional, the supreme

cou rt noted:
The failure of a jurisdictional requirement deprive s the court of the power to act (other than to determine that it has no jurisdiction), and6

ever to have a cted, as a matter of law. If the requirement is not jurisdictional, however, the tribunal may hear the case, although other consequences may flow from a party ’ s failu re to com ply with the requirement. [D] eeming a pr ovision jurisdictional opens the way to

m aking judgments vulnerable to delayed attack for a variety of irregularities that perhaps better ought to be sealed in a judgment. [T]he modern directi on of policy is to reduc e the vulnerability of final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction . Becaus e of these consequences, we have been reluctant to conclude that a provision is jurisdictional, absent clear legislative int ent to th at effect.

Id . at 393 ( cit ations omitted )

.
T h e court began with the presumption th at the legislature di d not intend to make the notice provision jurisdictional and applie d statutory interpretation principles to determine w he ther th e provision was jurisdic tional “ by examining the

statute ’ s plain language

. ” Id . at 394. Star ting with the text of the statute, th e court noted that the provision did not “ contain any explicit lan guage indicating that [the ]
notice requirement [, although man datory, was] ju risdictio nal. ” Id

. at 395. T he court further noted that the notice was not a statut ory prerequisite to filing a law suit or appeal

. Id . at 396. Moreover, there was no specific conse quence for noncompliance , such as dismissal

. Id

. Las tly, the court looked to the cons equences flowing from each possible interpretation of the statute and noted that th e
consequence of holdin g the statute jurisdiction al would be to re instate the officer
de spite serious allegations against him

. Id

. According to the c ourt, that could not

“ be the result the Legislature intended, especially where an interpretation which concludes that the provision is not j urisdictional would still protect the officer ’ s appella te rights

. ” Id . at 396

- 37.

Thus , the supreme court , beginning wit h the presumpti on th at the legislature
di d not intend to make the notice provision jurisdictional , consider ed four statutor y7

interp retation principles in ultimately conclud ing the provision was not jurisdictional : (1) the plain lan g uage of the statute ; (2) whether there was a
statut ory prerequisite to filing a law suit or appeal ; (3) whether there was a specific consequence for noncompliance , such as dismissal ; and (4) the consequences flowing from interpretation of the statute to determine what the legislat ure intended. W e ap p ly these principles as follows

.
P l ain Language of the Statute . W e start with the t ext of the statute

. T h e Commission is required under chapter 143 to grad e promotional ex amination s

. Tex. Loc

. Gov ’ t Code § 143.033(a). And “ [e ] ach fire f igh ter is entit led t o receive

one p oint for each year of seniority in that department, with a maximum of 10 points. ” Id

. § 143.033 (b). Mo reover, the Commis s ion “ may investigate and report

on all matters rel ating to the enfor cement and e f fect of [ chapter 14 3 ] and any rule s ado pted under [the ] chapter and shall determine if the c hapter and rules are being obeyed

. ” Id . § 143.009(a). T h e Commission addressed whether to score the
examinations and a

pply seniority points u nder chapter 143 in its September 18 and
N ovember 6 order s

. T h e authority to do so a nd inv estigate such matters is

e xpressly conferred on the Commission under chapter 143 and is not contingent on

any action by a firefi ghter under the statute

. N othing in the statute pr evented the
Commission from is suing the Se pte mber 18 an d November 6 orders.
Statutory Prerequisite to Filing a Lawsuit or Appeal

. Certain ly, o nly a police officer or fi refighter can invoke the appeals process under chapte r 143

. See
White , 288 S.W.3d at 397 (c iting Tex. Loc

. Gov ’t Code §§ 143.010(a),
143.0 57(a) )

. To appeal a f inal Commission decision , a police off icer or firefighter

must file a petition in district court “ within 10 days after the date the final
commission d ecision ” is sent by certified mail or personally received

. Tex. L oc

. Gov ’t Code § 143 .01 5 (a)

. T h at was done in this case.8

Consequen ces for N oncompliance

. Reyes and Rodriguez agreed with the September 18 order, so they had no reason to appeal it. After the Commission
reversed course on November 6 and held that the promotion al examinations woul d
be scored under the Collective Bargaining Agreement, Reyes and Rodriguez invoked the appeals process by filing a timely appeal of that order un der section
143.015

. Se e Tex. Loc

. Gov ’ t Code § 143.015(a) ; see also White , 288 S.W.3d at
397. R e yes and Rodri guez thus complied with the statute , and the City has not pointed to any authority for dismissal under the statute when a Commission
decision was timely appealed un der s ection 143.015

. Consequences Flowing from Interpretation of the Sta tute

. I f we wer e to interpret the statute as advocated by the City , R e yes and Rodriguez would hav e been required to appeal or file grievances even before the Commission made its
final decis ion no t t o apply seniority points u nder chapter 143 . That cannot be the
result the legi slature intended, especially when there is another mechanism expressly set fort h in the statute to protect Reyes ’ s and Rodriguez ’ s a ppellate rights, i.e., b y filing a pe tition under section 143.015 challenging the
Commission ’ s final decision. See White , 288 S.W. 3d at 396

- 37

. We de cline to impose a jurisdictional requirement when the express
l anguage of the statute shows that the Com mission had the author ity to issue th e S eptember 18 and November 6 orders and there is no statement of clear legi s lative
intent other

wise

. See id

. at 39 3

. T he legislature easily could have stated that the applicable provisions of the statute were jurisdicti onal , but it did not

. S ee id

. Moreover, Reyes and Rodriguez complied with section 14 3.015 by filin g a timely

appe al , a nd the result if we were to interpret the statute as jurisdictional would be to deprive them of their right to appeal after th e Commission made its final9

decision not to apply s eniority points u nder chapter 143

. 6

T h e City cites City of Temple Firemen ’ s & P olicemen ’

s Civil Serv ice
Comm issio n v. Bender , 787 S.W.2d 951 (Tex. 1990) , contending that a failure to strictly c om

ply with chapter 143 “ fails to invoke the jurisdiction of the
Commission. ” See i d . at 952. W e do not agree that Reyes and Rodrigue z failed to

com ply w ith chapter 143 or to invoke the jurisdiction of the Commission. T he
Bender case is also distinguis h able because it involve d a n inadequate notice of appeal to the C omm ission involving a police officer ’ s s uspension

. 7 Id . at 951 (citing T ex. Loc

. Gov ’ t Code § 143.010 (b))

. T h e case did not involve an appeal to the district court of a final decision by the Commission. Here, the City does not challenge the adequacy of a noti ce of appeal to the Commission. Instead, the City contends that Reye s and Rodriguez fail ed to invoke the Commission ’s ju risdiction by appealing the Commission ’ s final decision regarding sen iority points

.
M oreover, the supreme court ’ s holding in White call s the Bender holding into question . T he su

preme court n oted in White that its focus ha d changed to adopt

“ an approach to jurisdictional questions de signed to stren g then finality and reduce the po ssibility of dela yed attack s on judgments, ” even in an admini strative context , beginning with the presumption that the legi slatur e di d not inten d t o m ake the provisions of chapter 143 jurisdictional

. 288 S.W.3d at 39 4. T h at is our focus in

6 T h e City contends that Reyes ’ s and Rodrigu e z ’ s complaint letters challenging the Commission ’ s initial decisi on did not invoke the C ommission ’ s juri s diction to issue the S eptember 18 and November 6 orders

. But the Commission had the authority to grad e the examinations a nd apply seniority points inde pendent of any action by R e yes and Rodriguez.

7 The statute require s c e rtain state ments to be included in the notice of appeal to the Commission , including the basis for the appeal , which was omitted from the officer ’ s noti ce

. Bender , 787 S.W.2d at 952. T h e sup reme court held that the statements set forth in the s tatute were required to invo ke the jur isdiction of the Commis s ion. Id

.10

this case. 8

We conclude that the Comm ission had jurisdiction to issue the S ep tember 18
and November 6 orders . We overrule the City ’ s first issue. In it s third i ssu e , the City contends that the trial court lacked jurisdiction over Reye s and Ro driguez ’ s appeal “ [ b ] ecause the Commission lacked jurisdiction and its orders . . . are voi d. ”
Havin g concluded the Commission did not lack jurisdiction to iss ue the orders, we

ov er rule the City ’ s third issu e.

Conclusion

T he Commission had jurisdiction to issue the S eptember 18 and November 6
orders . Reyes and R odriguez filed a timely appeal of the November 6 order to the
trial court. According ly, the trial cour t did not err i n den ying the City ’ s motion for summary judgment based on lack of jurisdiction. W e affirm the trial court ’ s order denying the City ’ s motion for summary judgment

.

/s/ Frances Bourliot Justice

Pa nel consist s of Ju stice s Bourliot, Hassan, and Poissant

.

8 O ur holding also does not conflict with Univ ersity of Tex as Med ical Branch at Galveston v. Hohman , 6 S.W.3d 7 67 (Tex. App.

— Houston [1st Dist.] 1999, pet. dism’d w.o.j.) , which the Cit y ci tes for the proposition that “ [w] hen a party sues under a statutory cause of action, the party must comply with the administrative prerequisites, which are jurisdictional. ” Id

. at 774. As disc ussed, Reyes and Ro drig uez complied with section 143.015

.