1

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-22-00413-CV 

________________

CITY OF BEAUMONT AND KENNETH R. WILLIAMS, Appellants 

V.

CALEB FENTER, Appellee

________________________________________________________________________

On Appeal from the 60th District Court

Jefferson County, Texas

Trial Cause No. B-210,244 

________________________________________________________________________

MEMORANDUM OPINION

Caleb Fenter (“Fenter”), an EMT and employee of the City of Beaumont (“the 

City”) sued the City and its City Manager, Kenneth R. Williams (“Williams”)

(collectively “Appellants”).1 Fenter asserted that he qualified as a “fire fighter” for 

purposes of the Civil Service Act, sought a declaration of his rights under the Act

1Fenter initially sued Christopher S. Boone, an interim City Manager but later 

substituted Williams as the government official Defendant. See Tex. R. App. P. 

7.2(a) (governing substitution of parties when public officers cease to hold office 

prior to disposition of proceedings).
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and sought to have Williams swear him in under the Act. The City and Williams 

appeal the trial court’s partial denial of its plea to the jurisdiction as to Williams and 

the grant of Fenter’s Motion for Summary Judgment, which ordered Williams to 

classify Fenter as a fire fighter under the Civil Service Act. In two issues, Appellants 

contend: (1) the trial court failed to properly construe Texas Local Government Code 

section 143.003’s plain language and in so doing, erroneously found that Fenter, an 

EMT who is not certified by the Texas Commission of Fire Protection, is a “fire 

fighter” under the Civil Service Act; and (2) the trial court erred in denying the plea 

to the jurisdiction as to City Manager Williams where Fenter failed to plead an ultra 

vires claim and there was no waiver of immunity for Fenter’s Uniform Declaratory 

Judgment Action (UDJA). For the reasons discussed below, we will affirm in part, 

and reverse and remand in part.

I. Background and Procedural Posture

A. City’s Adoption of Civil Service Act and Fenter’s Employment

In 1960, the City voted by referendum to adopt the Civil Service Act andmake 

the Beaumont Fire Department a civil service department. The City employed Fenter

as a civilian EMT-paramedic in the Public Health Department beginning in

December 2012. In early 2021, the acting City Manager made the administrative 

decision to move the EMS Division from the Public Health Department to the Fire
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and RescueDepartment.Once the EMS Division moved to the Fire Department,the

City continued to treat the EMTs as civilians. 

B. Fenter’s Claims

Fenter sued the City and the City Manager, seeking a declaratory judgment,

to determine his civil service rights as an employee of the Fire Department, and for 

a writ of mandamus. Fenter alleged that under Texas Local Government Code 

chapter 143, once the EMTs transferred into the Fire Department, he was entitled to 

civil service protections. Fenter complained that after moving the EMS Division to 

the Fire Department, the City “has continued to treat medics as civilian employees 

and refused to classify their positions.” Fenter further asserted that when the City 

moved the EMS Division, “it announced its intention to replace the medics with 

classified firefighters by attrition, but now the City has proposed to hire additional 

medics who will likewise be treated as civilians, in violation of the Civil Service 

Act.” 

Fenter pleaded that Texas Local Government Code section 143.005(b)

“makes it clear” that “an employee of the fire department whose primary duties are 

to provide emergency medical services for the municipality is considered to be a fire

fighter who is a member of the fire department performing fire medical emergency 

technology, entitled to civil service protection, and covered by this chapter.” Tex. 

Local Gov’t Code Ann. § 143.005(b). He also alleged that the Act requires 
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classification of all firefighters under section 143.021, and as one “considered to be”

a firefighter, this applies to him. See id. § 143.021. Fenter requested these 

declarations:

1. the City of Beaumont fire department is a Civil Service department 

by virtue of the city’s election of such status in 1964 [sic];

2. the City of Beaumont moved the EMS division employees out of the

Public Health Department and into the Fire Department in 2021;

3. Caleb Fenter provided and continues to provide emergency medical

services for the City of Beaumont;

4. Caleb Fenter is employed by the City of Beaumont as a firefighter as

that term is defined by Tex. Loc. Gov’t Code § 143.005(b);

5. as a firefighter with the City of Beaumont, Caleb Fenter is entitled to

all the rights, obligations, and protections of a firefighter through the

Civil Service Act;

6. furthermore, pursuant to section 37.009 of the Texas Civil Practice 

& Remedies Code, Plaintiff requests the Court award costs and 

attorney’s fees as are reasonable and necessary, equitable and just.

Fenter also sought a writ of mandamus compellingCity Manager Williams to swear 

him and all other similarly situated employees in as civil service employees of the 

Beaumont Fire Department under Texas Local Government Code chapter 143 and 

provide them “with all the rights, benefits, status, and protections guaranteed 

therein.” 

The City and Williams answered with a general denial and invoked sovereign 

immunity. The City did not specially except to Fenter’s Original Petition or First 

Amended Petition. 
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C. Original and Amended Pleas to the Jurisdiction and Fenter’s Response

The City and Williams then filed their Plea to the Jurisdiction, in which they 

asserted there had been no waiver of sovereign immunity and that Fenter lacked 

standing. The City and Williams answered that a declaratory judgment action could 

not be used to circumvent sovereign immunity nor could the City be precluded from 

invoking sovereign immunity where its City Manager had exercised its discretion in 

administrative decisions. In their Plea, the City agreed that a district court could issue 

a writ of mandamus to compel a public official to perform a ministerial act, but the 

City disputed that granting Fenter and otherslike him civil service status constituted 

a ministerial act. TheCity and Williams challenged Fenter’s statutory interpretation 

that he was considered a firefighter under section 143.005(b). In support of their 

Plea, the City and Williams included the following evidence: copies of the public 

records showing the vote adopting the Civil Service Act; minutes of March 9, 2021 

City Council meeting regarding amending ordinance to staffEMS positions moved 

to the Fire Department by adding nine Grade I Firefighter positions; amended 

ordinance increasing the number of Grade I Firefighter positionsto 109; December 

2012 offer letter from the City to Fenter for a paramedic position in the Public Health 

Department; and City of Beaumont Paramedic job posting from August 2017 with 

description, requisite qualifications, and essential functions.
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Fenter responded to the Plea to the Jurisdiction. He argued that sovereign 

immunity does not apply to the City Manager’s ultra vires conduct in failing to 

perform a ministerial act—i.e., failing to certify him as a fire fighter. Fenter asserted

that he meets the definition of “fire fighter” in section 143.005(b), and the acting 

City Managersfailed to recognize him and other EMS workers as firefighters under

that section. Fenter’s evidence included: City Council meeting minutes from 

February 2021 outlining the discussion regarding the City Manager moving the EMS 

Division to the Fire Department and hiring more fire fighters; Fenter’s Affidavit 

describing his job as an EMT with the City, duties, and employment with the Fire 

Department; EMT job posting from October 2022; and Attorney General Opinion 

GA-0041 regarding classification of firefighters.

The City and Williams filed an Amended Plea to the Jurisdiction raising 

similar arguments to those it asserted in its original plea and disputed that granting 

Fenter civil service status constituted a ministerial act. They also argued that meeting 

the definition of 143.005(b) is not enough to qualify as a fire fighter. They asserted

that Fenter was not appointed in “substantial compliance” with chapter 143, and

even if Fenter performed fire technology service, that could only apply if his position 

also required “substantial knowledge of firefighting.” In sum, Appellants contended

that the suit should be dismissed for lack of jurisdiction since: (1) Fenter does not 

meet the Civil Service Act’s requirements, so he was not entitled to civil service 
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protection; and (2) the relief requested was not a ministerial act. With their Amended 

Plea to the Jurisdiction, the City and Williams filed the same evidence as their 

Original Plea to the Jurisdiction and included the affidavits of Fire Chief Earl White, 

EMS Manager Max Nguyen, and the City’s Civil Service Director Rachel Edwards. 

D. Fenter’s Motion for Traditional Summary Judgment

Fenter filed a “Motion for Traditional Summary Judgment, which assertsthat 

he is Entitled as a Matter of Law to Civil Service Protection in his Employment with 

the City of Beaumont Texas Pursuant to Texas Local Government Code Section 143, 

Et Seq.” In his Motion for Summary Judgment, Fenter argued that whether he falls 

within the definition of “firefighter” is a question of statutory construction, and a 

question of law suitable for summary disposition. Fenter noted that the public record 

bears out that the EMS Division moved from the Public Health Department to the 

Fire Department and cited to the minutes of a March 2021, City Council meeting, 

which he attached as evidence. Relying on Texas Local Government Code section 

143.005(b), Fenter argued that as “an employee of the fire department whose 

primary duties are to provide emergency medical services for the municipality,” he 

“is considered to be a firefighter who is a member of the fire department performing

fire medical emergency technology, is entitled to civil service protection, and 

covered by this chapter.” He also argued firefighters are required to be classified 

under section 143.021, which would include those as defined by section 143.005(b), 
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and the City and City Manager were without power to refuse to classify them as 

such. Fenter argued that the City could not avoid placing them within the civil 

service system by not appointing them in substantial compliance with chapter 143. 

According to the theory that Fenter asserted in his motion for summary 

judgment, he is entitled to summary judgment because: (1) he is employed by the 

City of Beaumont, which adopted the Civil Service Statute; (2) the City transferred 

Fenter into the Fire Department, where he provided fire medical emergency 

technology services; (3) when transferred from the Public Health Department to the 

Fire Department, Fenter was providing emergency medical services to the public on 

behalf of the City; (4) since his transfer to the Fire Department, Fenter continues to 

provide emergency medical services to the public on behalf of the City; (5) under 

the Texas Local Government Code, Fenter is a civil service employee entitled to all 

the rights, duties, and obligations of the civil service statute; (6) Defendants should 

have classified Fenter as a civil service employee working in a civil service 

department of the City; and (7) by the trial court’s mandamus,the City must classify 

him accordingly. Fentersupported his Motion for Summary Judgment with similar 

evidence to the evidence he included with the Response he filed to the City’s Plea 

to the Jurisdiction, except he also included the March 2021 City Council meeting 

minutes adopting an amended ordinance, which increased the number of firefighters.
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The record does not show that the City and Williams responded to Fenter’s Motion 

for Summary Judgment.

E. Hearing

In a single hearing, the trial court heard arguments on the City’s and 

Williams’s Pleas to the Jurisdiction and Fenter’s Motion for Traditional Summary 

Judgment. During the hearing, Fenter agreed that sovereign immunity applied to his 

claims against the City. Fenter argued that sovereign immunity did not protect City 

Manager Williams’s ultra vires conduct of failing to perform the ministerial act of 

swearing Fenter in and classifying him as a civil service employee. The City and 

Williams’s arguments at the hearing mirrored those contained in their Pleas to the 

Jurisdiction. 

F. Trial Court’s Orders

The trial court granted the Plea to the Jurisdiction as to the City but denied the 

Plea as to City Manager Williams. The trial court’s Order on Fenter’s Motion for 

Traditional Summary Judgment stated the trial court “finds” Fenter 

is a “firefighter” as that term is defined by the Texas Local Government 

Code, Chapter 143, and is entitled to all the rights and benefits provided 

under that chapter and that the City Manager of Beaumont Texas, 

Kenneth R. Williams, has failed to provide Plaintiff with his rights 

pursuant to the Texas Local Government Code, Chapter 143.

The trial court denied the Motion for Traditional Summary Judgment as to the City 

“as moot,” but it granted the Motion as to Williams. The Order also states:
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The Court further finds that the Texas Constitution empowers 

trial courts to issue writs of mandamus to compel public officials to 

perform ministerial acts. St. Jude Healthcare, Ltd. v. Tex. HHS 

Comm’n, 2021 Tex. App. LEXIS 9865.

The Court further finds that Plaintiff is entitled to mandamus 

relief requiring the City Manager of Beaumont, Texas, Kenneth R. 

Williams, to provide Plaintiff with all civil service rights pursuant to 

Chapter 143 of the Texas Local Government Code.

IT IS THEREFORE, ORDERED ADJUDGED AND 

DECREED that a writ ofmandamus shall he issued by the Clerk of this 

Court to be served on the City of Beaumont, Texas, Kenneth R. 

Williams, to carry out the order of this Court. Thiswrit is issued subject 

to the City Manager’s right to appeal this Order. In re City of Lancaster, 

220 S.W.3d 212, 216 (Tex. App.—Dallas, 2007). If an appeal is

undertaken, once the appeal becomes final, if necessary, a writ of 

mandamusshall be issued by the Clerk of this Court to be served on the 

City Manager of Beaumont, Texas, Kenneth R Williams, to carry out 

the order of this Court.All relief requested in this case and not expressly 

granted is denied. This Order finally disposes of all parties[’] claims 

and is appealable.

The City and Williams timely appealed. 

II. Analysis

Fenter pleaded the following:

The Act makes it clear that “an employee of the fire department whose

primary duties are [to] provide emergency medical services for the 

municipality is considered to be a firefighter who is a member of the 

fire department performing fire medical emergency technology, 

entitled to civil service protection, and covered by this chapter.” Tex. 

Loc. Gov’t Code § 143.005(b). The Act requires “the classification of 

all firefighters.”Tex. Loc. Gov’t Code § 143.021(a). This classification 

requirement includes the medics who are “considered to be” firefighters 

under Tex. Loc. Gov’t Code § 143.005(b). The statute provides that the

“failure of the governing body to establish a position by ordinance does 

not result in the loss of civil service benefits by a person entitled to civil 

service protection.”Tex. Loc. Gov’t Code § 143.021(b). “The fact that 

the City has not, to this point, appointed personnel to this position in 
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substantial compliance with Chapter 143 nor considered them entitled 

to civil service status under section 143.005 or 143.085 is immaterial. 

‘A city may not avoid placing firefighters within the civil service

system by not’ appointing them in substantial compliance with chapter 

143.” Op. Tex. Att’y Gen. GA-0041 (2003).

In their second issue, Appellants argue the trial court erred in denying their 

plea to the jurisdiction as to City Manager Williams. Since this issue implicates the 

trial court’s jurisdiction, we address it first. See Rusk State Hosp. v. Black, 392 

S.W.3d 88, 95 (Tex. 2012) (noting that if a court lacks jurisdiction, its opinion 

addressing issues other than jurisdiction is advisory); Porter v. Montgomery Cnty., 

No. 09-15-00459-CV, 2017 WL 629487, at *2 (Tex. App.—Beaumont Feb. 16, 

2017, no pet.) (mem. op.) (noting same). In support of this issue, they assert Fenter 

failed to plead an ultra vires claim, and there was no waiver of immunity for Fenter’s 

UDJA claim. Among other things, Appellants assert that Fenter “failed to allege 

facts showing that it was the City Manager who should have acted but failed to do 

so.” Fenter responds that there is a waiver of immunity for a party seeking to 

determine their rights under a statute by way of a UDJA claim. 

Whether a plaintiff has alleged a valid ultra vires claim is a question of law 

we review de novo. Hartzell v. S.O., 672 S.W.3d 304, 311 (Tex. 2023). “When a 

plea to the jurisdiction challenges the pleadings, we determine if the pleader has 

alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the 

cause.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)
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(citation omitted); see also City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 

2009). We look to the pleader’s intent and liberally construe pleadings in favor of 

the plaintiff. See Heinrich, 284 S.W.3d at 378; Miranda, 133 S.W.3d at 226.

In City of El Paso v. Heinrich, the Supreme Court of Texas provided guidance 

for suits against government officials for ultra vires conduct and when immunity 

would not operate as a bar to suit. See 284 S.W.3d at 370–77. Sovereign immunity 

generally bars lawsuits for money damages against the state unless immunity has 

been waived. See id. at 369–70. Even so, “suits to require state officials to comply 

with statutory or constitutional provisions are not prohibited by sovereign immunity, 

even if a declaration to that effect compels the payment of money.” Id. at 372; see 

also Shamrock Psychiatric Clinic, P.A. v. Tex. Dep’t of Health and Human Servs., 

540 S.W.3d 553, 560 (Tex. 2018). The suit must be brought against the state actors 

in their official capacity since the state retains immunity, although the suit is, for all 

practical purposes, against the state. See Heinrich, 284 S.W.3d at 373. “‘To fall 

within this ultra vires exception, a suit must not complain of a government officer’s 

exercise of discretion, but rather must allege, and ultimately prove, that the officer 

acted without legal authority or failed to perform a purely ministerial 

act.”” Schroeder v. Escalera Ranch Owners’ Ass’n, 646 S.W.3d 329, 332 (Tex. 

2022) (quoting Heinrich, 284 S.W.3d at 372).
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As applicable here, to fall within the ultra vires exception, Fenter’ssuit must 

allege and ultimately prove that City Manager Williams failed to perform a purely 

ministerial act. See id.; Shamrock Psychiatric, 540 S.W.3d at 560; Heinrich, 284 

S.W.3d at 372. “An act is ministerial when the law clearly spells out the duty to be 

performed by the official with sufficient certainty that nothing is left to the exercise 

of discretion.”Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991)

(citations omitted);see also City of Hous. v. Hous. Mun. Emps. Pension Sys., 549 

S.W.3d 566, 576 (Tex. 2018) (same).

Fenter alleged the following:

Despite being employees of the Beaumont Fire Department and 

performing emergency medical services, Plaintiff is not given the civil 

service protections of Tex. Local Gov. Code 143. Therefore, Plaintiff 

files this declaratory judgment action to determine their rights under 

civil service as employee of the Beaumont Fire Department and 

requests that a writ of mandamus issue compelling the city manager, 

KENNETH R. WILLIAMS to swear him in as such.

. . .

The Act makes it clear that “an employee of the fire department whose 

primary duties are to provide emergency medical services for the 

municipality is considered to be a firefighter who is a member of the 

fire department performing fire medical emergency technology, 

entitled to civil service protection, and covered by this chapter.” Tex. 

Loc. Gov’t Code § 143.005(b). The Act requires “the classification of 

all firefighters.”Tex. Loc. Gov’t Code § 143.021(a). This classification 

requirement includes the medics who are “considered to be” firefighters 

under Tex. Loc. Gov’t Code § 143.005(b).

. . .
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The existing Beaumont medics are all employees in the Beaumont Fire

Department whose primary duties are to provide emergency medical 

services for themunicipality. As such, they are “firefighters” under the 

Civil Service Act and must be classified and received [sic] all the 

protections of the statute.

. . .

Fenter sought declarations consistent with the allegations, and among other things, 

specifically asked for a declaration that he is a fire fighter as defined in section 

143.005(b) employed by the City of Beaumont and “is entitled to all the rights, 

obligations, and protections of a firefighter through the Civil Service Act.” 

Fenter included a Petition for Writ of Mandamus in his Amended Petition

asking that (1) City Manager Williams be compelled to swear him and other 

similarly situated employees in as civil service employees of the Beaumont Fire 

Department under chapter 143, and (2) “provide him and all other similarly situated 

employees with all the rights, benefits, status, and protections guaranteed therein.” 

Although Fenter did not use the phrase “ultra vires” in his pleadings, looking to his 

intent and liberally construing the pleadings in his favor, we conclude that he 

intended and attempted to plead an ultra vires claim against Williams. See Heinrich, 

284 S.W.3d at 378; Miranda, 133 S.W.3d at 226.

Appellants also argue that Fenter “failed to allege facts showing that it was 

the City Manager who should have acted but failed to do so.” Texas Local 

Government Code section 143.021(a) requires classification of employees who 
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qualify for civil service status. See Tex. Local Gov’t Code Ann. § 143.021(a) (“The 

municipality’s governing body shall establish the classifications by ordinance.”). 

The inquiry that necessarily follows is whether City Manager Williams was the 

official tasked with that duty or tasked with a duty to swearin qualified employees. 

Fenter’s pleadings alleged that he was entitled to civil service status under the 

statute, complained the City failed to classify him, then sought a writ compelling 

City Manager Williams to swear him and other similarly situated EMTs in and afford 

them the rights and protections of civil service employees under the statute.

Appellants claimed that Fenter failed to plead facts demonstrating that the City

Manager had the authority to determine fire fighters classifications; in other words,

Fenter failed to allege facts showing that it was the City Manager who should have

acted but failed to do so. Appellants also claimed that because Fenter failed to plead 

facts showing that the City Manager makes classification decisions, it was error for 

the trial court to deny the City’s plea to the jurisdiction as to the City Manager. In 

fact, Fenter’s pleadings do not allege factsthat, if true,show that the statute imposed 

these specific duties on City Manager Williams. Thus, Fenter has not pleaded facts 

establishing that City Manager Williams failed to perform a ministerial duty.

Because Fenter’s allegations do not plead facts that if true would show that Williams 

failed to comply with a ministerial duty, Fenter’s pleadings do not affirmatively 

establish the trial court’s jurisdiction over his ultra vires claims against City Manager 
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Williams. See City of Houston, 549 S.W.3d at 576 (discussing ministerial acts and 

ultra vires claims); Anderson, 806 S.W.2d at 793 (citations omitted) (discussing 

ministerial acts in context of writs issuing). Therefore, we conclude the trial court 

improperly denied Appellants’ Plea to the Jurisdiction as to City Manager Williams. 

See Schroeder, 646 S.W.3d at 332 (discussing requisite allegations for ultra vires 

claim); City of Hous., 549 S.W.3d at 576 (same); Shamrock Psychiatric, 540 S.W.3d 

at 560 (same); Heinrich, 284 S.W.3d at 372 (same). We sustain Appellants’ second 

issue. 

That said, although we agree that there are insufficient facts alleged to show 

that City Manager Williams is the party that would swear Fenter in or classify Fenter 

under chapter 143, “Texas courts allow parties to replead unless their pleadings 

demonstrate incurable defects.” Dohlen v. City of San Antonio, 643 S.W.3d 387, 397 

(Tex. 2022) (citing Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 623 (Tex. 

2011)); see Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839–40 (Tex. 2007) 

(citations omitted) (explaining that a party should be allowed to stand on their 

pleadings in the face of a plea to the jurisdiction until a court determines the plea is 

meritorious, then be given an opportunity to replead absent incurable defects). 

Allegations in pleadings may either affirmatively demonstrate or negate jurisdiction, 

but if the pleadings do neither, the issue is considered a matter of pleading 

sufficiency and the plaintiffshould be given an opportunity to amend. City of Waco 
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v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). Since Fenter’s pleadings do not 

affirmatively negate jurisdiction or show incurable defects, we conclude he is 

entitled, on remand, to and opportunity to replead. See id.; see also Dohlen, 643 

S.W.3d at 397; Koseoglu, 233 S.W.3d at 839–40.

III. Conclusion

Having sustained Appellants’ second issue, we affirm the trial court’s Order 

granting the Plea to the Jurisdiction as to the City but reverse the portion of the trial 

court’s Order denying the Plea to the Jurisdiction as to alleged ultra vires acts by 

City Manager Williams. We remand the matter with instructions for the trial court 

to give Fenter a reasonable opportunity to amend his pleadings to properly plead 

these claims and cure the jurisdictional defects. Absent pleadings that invoked its 

jurisdiction, the trial court should not have decided Fenter’s Motion for Traditional 

Summary Judgment on the declaratory judgment claim or issued a writ of 

mandamus. Accordingly, we reverse the trial court’s Order granting Fenter’s Motion 

for Traditional Summary Judgment and issuing a writ of mandamus and remand for 

further action consistent with this opinion.

AFFIRMEDIN PART, REVERSED AND REMANDED IN PART.

W. SCOTT GOLEMON 

Chief Justice 

Submitted on November 13, 2023

Opinion Delivered December 21, 2023

Before Golemon, C.J., Horton and Johnson, JJ.