CITY CANNOT USE DECLARATORY JUDGMENTS ACT TO LITIGATE APPEAL FROM CIVIL SERVICE
COMMISSION DECISION IN DISCIPLINARY MATTER, WHICH IT IS NOT AUTHORIZED TO BRING UNDER
THE LOCAL GOVERNMENT CODE. ONLY AFFECTED FIRE FIGHTER OR POLICE OFFICER MAY SEEK
JUDICIAL REVIEW IF DISSATISFIED WITH COMMISSION RULING.
City of Houston v. Buttitta (Tex.App.- Houston [1st Dist.] July 17, 2008)(Hanks)
(DJA, public employment disciplinary action, plea to the jurisdiction against city proper, city not authorized
to bring judicial review suit from commission decision; grant of jurisdictional plea affirmed)
AFFIRM TC JUDGMENT: Opinion by Justice George C. Hanks, Jr.
Before Justices Alcala, Hanks and Higley
01-07-00323-CV City of Houston v. Joseph A. Buttitta
Appeal from 113th District Court of Harris County
Trial Court Judge: Hon. Patricia Hancock
O P I N I O N
The City of Houston appeals the trial court's order granting the plea to its jurisdiction. The City contends
that the trial court erred in granting the plea because the City's pleadings sufficiently set out facts
establishing jurisdiction under the Declaratory Judgment Act. We affirm.
In 2006, an investigation conducted by the Houston Police Department ("HPD") determined that officer
Joseph A. Buttitta had engaged in conduct that violated various HPD policies. In lieu of other disciplinary
action, the City accepted Buttitta's request to receive a voluntary two-level demotion. A letter from the chief
of police explaining Buttitta's misconduct and demotion was prepared and placed in Buttitta's permanent
personnel file, pursuant to Local Government Code section 143.089. (1) Buttitta filed a motion with the
Police Officers' Civil Service Commission ("Commission"), requesting that the letter be removed from his
personnel file. After hearing oral argument on the motion, the Commission granted Buttitta's request and
ordered that the letter be removed from his personnel file. The letter was removed and returned to the
chief of police, who, after consultation with the City's legal department, directed that the letter be placed
back in Buttitta's file.
Due to the controversy as to whether the letter should be placed in Buttitta's file, the City filed a petition in
district court requesting a declaration that (1) the Commission did not have jurisdiction to order that the
letter be removed and (2) the letter be returned to Buttitta's file. Buttitta filed a plea to the court's
The court granted Buttitta's plea and the City's petition was dismissed. The City now appeals.
Plea to the Jurisdiction
In its sole issue, the City complains that the trial court improperly granted Buttitta's plea to the jurisdiction.
Specifically, the City argues that its petition set out sufficient factual allegations to establish jurisdiction
under the Declaratory Judgment Act.
Standard of Review
A plea to the jurisdiction is a dilatory plea by which a party challenges a court's authority to determine the
subject matter of the action. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The purpose of a dilatory
plea is not to force the plaintiffs to preview their case on the merits but to establish a reason why the merits
should never be reached. Id.
Because the question of subject matter jurisdiction is a legal question, we review the trial court's ruling on
a plea to the jurisdiction under a de novo standard of review. Hoff v. Nueces County, 153 S.W.3d 45, 48
(Tex. 2004). We must look to the allegations in the pleadings, construe them in the plaintiff's favor, and
look to the pleader's intent. See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). In doing
so, we consider the facts alleged in the petition, and to the extent relevant to the jurisdictional issue, any
evidence submitted by the parties to the trial court. Tex. Natural Res. Conservation Comm'n v. White, 46
S.W.3d 864, 868 (Tex. 2001).
The plaintiff bears the burden to allege facts affirmatively demonstrating the trial court's jurisdiction to hear
a case. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). If a plaintiff
pleads facts that affirmatively demonstrate an absence of jurisdiction and the defect is incurable, then the
cause is properly dismissed. Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 805 (Tex. 1989).
However, when the plaintiff fails to plead facts that establish jurisdiction, but the petition does not
affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the
plaintiff should be afforded the opportunity to amend. Brown, 80 S.W.3d at 555.
The City contends that its petition sufficiently alleged facts establishing questions of statutory construction
regarding the rights, status, and legal relations of the parties, specifically about whether the Commission's
order is legal and enforceable and whether the letter must be removed from Buttitta's personnel file.
According to the City, it showed that there is a substantial justiciable controversy between the parties that
involves a genuine conflict of tangible interests. See Bonham State Bank v. Beadle, 907 S.W.2d 465, 467
(Tex. 1995). Therefore, the City concludes that it has pled facts that fall within the scope of the Declaratory
Judgment Act ("DJA") (2) and establish the trial court's jurisdiction to hear the case. We disagree.
It is well settled that the DJA is not a grant of jurisdiction, but "merely a procedural device for deciding
cases already within a court's jurisdiction." Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996) (quoting
State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994)); see also Tex. Civ. Prac. & Rem. Code Ann. § 37.003
(Vernon 1997) ("A court of record within its jurisdiction has power to declare rights, status, and other legal
relations whether or not further relief is or could be claimed.") (emphasis added). Regardless of whether
the petitioner established a controversy resolvable under the DJA, a court must first have subject matter
jurisdiction before it can render a declaratory judgment. See County of Galveston v. Tolle, 176 S.W.3d
859, 862 (Tex. App.--Houston [1st Dist.] 2005, pet. denied).
Section 143.015 of the Local Government Code provides that fire fighters and police officers dissatisfied
with a Commission decision may file a petition in district court asking that the decision be set aside, but
does not state that the municipality involved may do the same. Tex. Loc. Gov't Code Ann. § 143.015(a)
Accordingly, only aggrieved fire fighters and police officers have a right to seek judicial review of a
Commission decision--not municipalities. See City of Houston v. Clark, 197 S.W.3d 314, 318-20 (Tex.
2006) (recognizing that the Local Government Code affords appellate rights from a Commission decision
only to aggrieved officers, because the Commission is closely aligned with the municipality); City Of
Garland v. Byrd, 97 S.W.3d 601, 607-08 (Tex. App.--Dallas 2002, pet. denied). Because the City had no
right to ask the trial court to set aside the Commission's decision, the court had no subject matter
jurisdiction over the underlying dispute, and, therefore, could not grant the City's requested declaratory
We hold that the trial court did not err in granting Buttitta's plea to the jurisdiction.
The City also asserts that it should have been given an opportunity to cure any defect in its pleadings.
However, because the jurisdictional defect is incurable, the City has no right to seek judicial review of the
Commission's decision, the City's cause was properly dismissed. Peek, 779 S.W.2d at 805.
We overrule the City's sole point of error.
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Panel consists of Justices Alcala, Hanks, Higley.
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