Full Opinion (html_with_citations)

                                        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).
                                           1
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 and make

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




                                            2
and Rescue Department. 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

                                          3
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 compelling City 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.




                                          4
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 others like him civil service status constituted

a ministerial act. The City 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 staff EMS positions moved

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

ordinance increasing the number of Grade I Firefighter positions to 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.




                                            5
      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 Managers failed 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

                                           6
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 asserts that

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),

                                          7
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. Fenter supported 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.




                                          8
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:

                                          9
            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 of mandamus 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. This writ 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
     mandamus shall 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
                                          10
      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)

                                         11
(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
).




                                           12
      As applicable here, to fall within the ultra vires exception, Fenter’s suit 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).

      ...


                                          13
      The existing Beaumont medics are all employees in the Beaumont Fire
      Department whose primary duties are to provide emergency medical
      services for the municipality. 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

                                         14
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 swear in 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 facts that, 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

                                           15
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 plaintiff should be given an opportunity to amend. City of Waco

                                           16
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.

      AFFIRMED IN 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.

                                           17