NUMBER 13-14-00054-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

RICHARD STUBBS, Appellant,

v.

THE CITY OF WESLACO, AND

VERONICA RAMIREZ, IN HER

OFFICIAL CAPACITY AS

WESLACO CIVIL SERVICE 

DIRECTOR, Appellees.

On appeal from the 92nd District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justice Garza and Longoria

Memorandum Opinion by Justice Longoria
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In this case, Richard Stubbs appeals the trial court’s dismissal of his claims against 

the City of Weslaco and Veronica Ramirez, in her official capacity as Weslaco’s civil 

service director. As set forth below, we conclude that the trial court erred in dismissing 

Stubbs’s claims against Ramirez to require her to process his appeal of Weslaco’s 

termination of his employment to an independent third party hearing examiner. 

Accordingly, we reverse the trial court’s order in part and remand the cause to the trial 

court for further proceedings consistent with this memorandum opinion. See TEX. R. APP.

P. 43.2(d).

I. BACKGROUND

Stubbs was previously employed as a non-probationary firefighter with Weslaco’s

Fire Department when he sustained an injury unrelated to his employment that resulted 

in a temporary disability. He was not able to return to work immediately. After Stubbs 

had missed work for about a month, the fire chief sent him a written notice advising that 

he had used all of his paid leave and was therefore being placed on temporary leave 

without pay. See TEX. LOC. GOV’T CODE ANN. § 143.073(d) (West, Westlaw through 2013 

3d C.S.). According to the notice, Stubbs would remain on temporary leave without pay 

until he submitted to Weslaco’s Civil Service Commission a “100% clearance to return to 

work” from his physician. See id. § 143.081(b) (West, Westlaw through 2013 3d C.S.).

On November 9, 2012, Weslaco’s Human Resources Department forwarded to 

Stubbs a written form entitled “Certification of Health Care Provider for Employee’s 

Serious Health Condition (Family and Medical Leave Act)” and requested that Stubbs 

have the form completed and returned by November 24, 2012. Stubbs did not comply. 
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Thereafter, by written notice dated December 21, 2012, Weslaco informed Stubbs that it 

was denying his FMLA benefits. 

On December 31, 2012, the fire chief met with Stubbs in person and advised him 

that he needed an update and some form of documentation from his physician regarding 

his health and when he was going to return to work. The fire chief gave Stubbs until 

January 4, 2013 to produce the documentation. On January 4, 2013, the fire chief sent 

Stubbs an email stating, “I have not heard or received anything from you or your physician 

as of today.” Stubbs responded by email within the hour, explaining that he had requested 

a prognosis letter from his physician. Attached to Stubbs’s email was an email from his 

physician’s office manager stating that they were working on Stubbs’s prognosis letter 

and that the letter would be “ready early next week.” 

On January 9, 2013, the fire chief sent Stubbs a notice that his employment was 

terminated effective immediately. In relevant part, the notice stated as follows: 

To date you have not returned to work, supplied the City with the required 

FMLA Certification Form, or submitted the 100% clearance from your 

physician. You are not entitled to any additional leave under any federal or 

state family or medi[c]al leave laws or City policy and your accrued sick 

leave, vacation, personal days and compensation time have been 

exhausted.

Taking the above into consideration, you are hereby terminated effective 

immediately in accordance with the FMLA and City policy.

Subsequently, Stubbs hand delivered to Ramirez, the Director of Weslaco’s Civil 

Service Commission, a written letter addressed to Weslaco’s Civil Service 

Commissioners in which he expressly invoked the provisions of Chapter 143 of the Texas 

Local Government Code, including Sections 143.010, 143.053, and 143.057, and 

requested a hearing before an independent third party hearing examiner to challenge the 
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termination of his employment. See id. §§ 143.010, 143.053 & 143.057 (West, Westlaw 

through 2013 3d C.S.). Stubbs denied the truth of the charge made by the fire chief and 

took exception to the legal sufficiency of the charge. Stubbs also stated that the action 

recommended by the fire chief, referred to as a termination or indefinite suspension, did 

not or would not fit the alleged offense. See id. § 143.052(b) (West, Westlaw through 

2013 3d C.S.) (“An indefinite suspension is equivalent to dismissal from the department.”). 

Stubbs advised the Commissioners that the parties had ten days from the date of his 

letter, January 15, 2013, to agree on an impartial hearing examiner. See id. § 143.057(d). 

Ramirez responded to Stubbs in a letter dated January 24, 2013. She advised 

Stubbs that he had not complied with Section 143.057(b) of the Texas Local Government 

Code, concerning a firefighter’s right to appeal to an independent hearing examiner, 

because he had addressed his request to the Commissioners and not to her specifically 

as the Director of the Commission. See id. § 143.057(b). Ramirez quoted the language 

of the statute, which states that a firefighter “must submit to the director a written request” 

to appeal to a third party hearing examiner. Id. Although Ramirez acknowledged that 

Stubbs had delivered the request to her in person, she maintained that the request was 

fatally defective because it was addressed to the Commissioners and the Commission 

had no statutory authority to grant the request. 

In her letter, Ramirez also acknowledged that Stubbs had invoked Section 143.010 

of the Texas Local Government Code, concerning arbitration of an action from which an 

appeal or review is provided by Chapter 143, but she maintained that there was no 

statutory basis for Stubbs to appeal his discharge to an independent hearing examiner 

under that statutory provision because he had not been indefinitely suspended for 
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disciplinary reasons. See id. § 143.010 (West, Westlaw through 2013 3d C.S.). Ramirez 

advised Stubbs that, based on the foregoing, Weslaco would refuse to participate in any 

arbitration proceedings.

Subsequently, Stubbs then filed this suit against Weslaco and Ramirez, in her 

official capacity, alleging that his discharge was illegal and that the defendants had 

deprived him of his statutory rights under the civil service act. In particular, Stubbs 

specifically alleged that Weslaco and Ramirez had violated the civil service act by denying 

him the right to appeal his discharge to an independent hearing examiner as he had 

requested in his notice letter dated January 15, 2013. 

In his petition, Stubbs alleged that the termination notice was defective and 

insufficient because it failed to identify any civil service rule that he had allegedly violated 

and because it did not specify the grounds for his discharge beyond the language quoted 

above. In addition, the notice did not advise Stubbs that he had a right to appeal the 

discharge to the local civil service commission or to an independent third party hearing 

examiner. According to Stubbs, the fire chief had a statutory obligation to report certain 

information concerning the discharge and the grounds and circumstances for the 

discharge to the local civil service commission and to provide Stubbs with notice of the 

specific disclosures made to the commission; however, according to Stubbs, the fire chief 

failed to report the necessary information to the commission as required by law. 

Stubbs requested that the trial court issue a writ of mandamus to compel Weslaco 

and Ramirez to perform their ministerial and non-discretionary duty to process his appeal 

as required by the civil service act. Stubbs specifically alleged that mandamus was 

appropriate because he lacked an adequate alternative remedy to enforce his right to 
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contest his discharge by appealing to an independent hearing examiner according to the 

procedures set forth in the civil service act. 

In addition to a writ of mandamus, Stubbs requested that the trial court grant the 

following relief in his favor: (1) declare that Weslaco and Ramirez have violated his rights 

under the civil service act by discharging him for having a disability without following the 

fitness-for-duty procedures specified by the civil service act; (2) enter an injunction 

requiring Weslaco and Ramirez to reinstate him to the same rank and with the same 

seniority he had before going on temporary leave and prohibiting them from discharging 

him for a disability without utilizing the fitness-for-duty procedures; (3) alternatively, 

declare that Weslaco and Ramirez discharged him for disciplinary reasons without 

following the requirements of the civil service act; (4) enjoin Weslaco and Ramirez from 

discharging him for disciplinary reasons without following the requirements of the civil 

service act; (5) order Weslaco and Ramirez to pay attorney’s fees and costs; and (6) order 

such further relief, at law or equity, to which he showed himself justly entitled. 

Subsequently, Weslaco and Ramirez filed an answer denying all of Stubbs’s 

allegations, special exceptions to Stubbs’s petition, and a motion to dismiss Stubbs’s 

claims against them for lack of jurisdiction. Weslaco and Ramirez asserted that, as 

governmental actors, they were immune from suit under the doctrine of sovereign 

immunity and that Stubbs had failed to establish a valid waiver of their immunity for any 

of the claims he was asserting against them in this case. They explained that in his 

petition, Stubbs had asserted two grounds for waiver based on two different statutory 

provisions; however, they argued that those provisions did not waive their immunity from 

suit and that the trial court had no jurisdiction over Stubbs’s claims against them. 
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Specifically, the defendants asserted that Section 180.006 of the Texas Local 

Government Code, cited in Stubbs’s petition, is applicable only in a suit in which a 

firefighter alleges that a municipality denied monetary benefits associated with the 

recovery of back pay or a firefighter alleges the denial of monetary benefits associated 

with the recovery of back pay owed under Section 143.134(h). See id. §§ 108.006 & 

143.134(h) (West, Westlaw through 2013 3d C.S.). Therefore, only a firefighter asserting 

a claim for back pay may assert Section 180.006 to establish a waiver of immunity 

permitting judicial review of such denial. See id. § 180.006(c). Weslaco and Ramirez 

argued that the limited waiver of immunity in Section 180.006 was inapplicable in this suit 

because Stubbs had not asserted any claim for back pay. See id.

In addition, Weslaco and Ramirez noted that in his petition, Stubbs had also cited 

Section 37.009 of the Texas Civil Practice and Remedies Code, part of the Uniform 

Declaratory Judgments Act, to establish that their immunity from suit had been waived for 

his claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (West, Westlaw through 2013 

3d C.S.). In a brief filed in support of their motion to dismiss and supplemental motion to 

dismiss, the defendants explained that the Uniform Declaratory Judgments Act does not 

enlarge a court’s jurisdiction. They argued, “Texas courts have held that plaintiffs may 

not bring a suit for declaratory judgment and damages against a governmental 

defendant.” Furthermore, according to the defendants, the trial court had no jurisdiction 

and no authority to hear Stubbs’s claim for declaratory judgment because the trial court 

could not grant the relief Stubbs had requested. Specifically, the defendants argued that 

the trial court could not compel them to perform a function that they had no authority to 

perform under Chapter 143 of the Texas Local Government Code. 
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Stubbs filed a combined motion for summary judgment and response to the 

defendants’ motion to dismiss and supplemental motion to dismiss. In his response, 

Stubbs took issue with the defendants’ representation to the trial court that he was 

attempting to assert claims against them for money damages. Stubbs clarified that he 

was asserting claims against the defendants for declaratory relief, injunctive relief, writ of 

mandamus, and attorney’s fees under the Uniform Declaratory Judgments Act. Stubbs 

pointed out that the Texas Supreme Court has consistently held that the sovereign 

immunity of a governmental entity does not encompass immunity from suit for claims 

brought under the Uniform Declaratory Judgments Act. Stubbs argued that his claims did 

not implicate the doctrine of governmental immunity or the defendants’ immunity from suit 

because he was not attempting to impose liability on them for money damages. 

In addition, Stubbs argued that the trial court did not lack jurisdiction over his claims 

simply because the defendants were governmental actors who enjoy immunity from suit 

in other instances. According to Stubbs, the defendants’ immunity from suit did not extend 

to his claims to require them to comply with his statutory rights under the civil service act. 

Stubbs argued that the trial court had jurisdiction over his claims even if the relief he was 

requesting would compel the defendants to make a payment of money. 

Finally, Stubbs argued that, to the extent that his claims were considered claims 

for monetary damages, the defendants did not have immunity from suit and the trial court 

was not deprived of jurisdiction over the claims because Section 180.006 of the Texas 

Local Government Code specifically waived the defendants’ immunity from suit for claims 

for monetary benefits that a firefighter is entitled to recover under the provisions of 

Chapters 141, 142, and 143 of the Texas Local Government Code. See TEX. LOC. GOV’T 
9

CODE ANN. § 180.006. Stubbs took the position that the statute’s waiver of immunity 

applied to his claims for monetary damages, to the extent that he had asserted any such 

claims, because his claims were for monetary benefits that he was entitled to recover 

under the Texas Local Government Code, as stated in Section 180.006. See id. Based 

on the foregoing, Stubbs maintained that the defendants were not entitled to have the trial 

court dismiss his claims for lack of jurisdiction.

The trial court ruled in the defendants’ favor and entered a written order granting 

the defendants’ motion to dismiss and supplemental motion to dismiss and stating that 

Stubbs’s claims were thereby dismissed with prejudice for lack of jurisdiction. Stubbs 

now appeals to this Court. 

II. ANALYSIS

By one issue, Stubbs contends that the trial court committed reversible error by 

granting the defendants’ motion to dismiss and supplemental motion to dismiss and 

dismissing his claims with prejudice for lack of jurisdiction.

A. Standard of Review

The trial court must determine at its earliest opportunity whether it has the 

constitutional or statutory authority to decide the case before allowing the litigation to 

proceed. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). 

Whether a court has subject matter jurisdiction is a question of law. Id. Whether a pleader 

has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction 

is a question of law reviewed de novo. Id. Likewise, whether undisputed evidence of 

jurisdictional facts establishes a trial court’s jurisdiction is also a question of law. Id. 
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However, in some cases, disputed evidence of jurisdictional facts that also implicate the 

merits of the case may require resolution by the finder of fact. Id. 

B. Applicable Law

Sovereign immunity and its counterpart, governmental immunity, exist to protect 

the State and its political subdivisions from lawsuits and liability for money damages. 

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). Immunity 

from suit bars an action against the state unless the state expressly consents to the suit. 

Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The party suing the 

governmental entity must establish the state’s consent, which may be alleged either by 

reference to a statute or to express legislative permission. Id. We interpret statutory 

waivers of immunity narrowly, as the Legislature’s intent to waive immunity must be clear 

and unambiguous. Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 655 (citing TEX.

GOV’T CODE ANN. § 311.034 (West, Westlaw through 2013 3d C.S.)). 

C. Discussion

Stubbs has asserted claims to require Weslaco and Ramirez to comply with certain 

provisions of the civil service act authorizing a firefighter to appeal the termination of his 

employment to an independent third party hearing examiner. See TEX. LOC. GOV’T CODE 

ANN. § 143.057. Under the ultra vires exception to immunity, “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.” 

City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) (explaining the ultra vires 

exception to immunity). However, such claims cannot be brought against Weslaco, 

because it retains immunity; therefore, the claims must be brought against Ramirez in her 
11

official capacity. See id. at 373. Accordingly, the trial court did not err in dismissing the 

claims against Weslaco for lack of jurisdiction. 

Moreover, the only claims against Ramirez that survive the jurisdictional challenge 

are those for a declaratory judgment, injunctive relief, and writ of mandamus to require 

her to process Stubbs’s appeal as required by the civil service act. See Bell v. City of 

Grande Prairie, 221 S.W.3d 317, 325 (Tex. App.—Dallas 2007, no pet.) (op. on reh’g) 

(“However, to the extent the requested injunction would require the City’s officers to follow 

the law in the future and does not seek money damages, it is not barred by the City’s 

immunity to suit.”). We express no opinion on the merits of Stubbs’s claims. We hold 

that the claims are within the trial court’s subject matter jurisdiction and therefore should 

not have been dismissed. It is for the trial court to decide in the first instance whether 

Stubbs is entitled to the relief requested in his live pleading based on these claims. 

If Stubbs prevails in the trial court, he will establish and be able to enforce his right 

to have the fire chief’s action in terminating his employment reviewed by the commission 

or an independent hearing examiner, as set forth in the civil service act. See TEX. LOC.

GOV’T CODE ANN. § 143.053(b); id. § 143.057(a)–(b); City of DeSoto v. White, 288 S.W.3d 

389, 392 (Tex. 2009) (“Chapter 143 of the Local Government Code, known as the Fire 

Fighter and Police Officer Civil Service Act, outlines the disciplinary process by which a 

municipality may suspend an officer and how that officer may appeal the suspension.”). 

To the extent Stubbs seeks reinstatement and further injunctive relief from the trial 

court in this proceeding, we hold that the trial court properly dismissed those claims for 

lack of jurisdiction because Stubbs failed to establish a valid waiver of immunity for such

claims and because, in any event, the commission or hearing examiner has exclusive 
12

jurisdiction over these claims. See Thomas v. Long, 207 S.W.3d 334, 341 (Tex. 2006) 

(noting that “an employee subject to for-cause termination has a property interest in 

continued employment sufficient to entitle the employee to judicial review of an 

administrative decision to terminate employment,” but holding that “the Commission had 

exclusive jurisdiction over the employment dispute in this case”). Of course, in the event 

that Stubbs is able to appeal the fire chief’s actions to the commission or an independent 

third party hearing examiner, the civil service statute authorizes such relief and provides 

the opportunity for further proceedings in the district court if Stubbs is not satisfied with 

the results or relief obtained. See TEX. LOC. GOV’T CODE ANN. § 143.015(a); id. § 

143.057(c)–(j); Bracey v. City of Killeen, 417 S.W.3d 94, 104 (Tex. App.—Austin 2013, 

no pet.). 

Stubbs’s issue is sustained in part and overruled in part.

III. CONCLUSION

The trial court’s order dismissing Stubbs’s suit for lack of jurisdiction is reversed in 

part as stated herein, and the cause is remanded to the trial court for further proceedings 

consistent with this memorandum opinion. 

NORA L. LONGORIA

Justice

Delivered and filed the

8th day of January, 2015.