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Thomas v. Long, 97 S.W.3d 300 (Tex. App.–Houston [14th Dist.] 2003, reversed by the Texas Supreme Court in Thomas v. Long, No. 03-0204 (Tex. April 21, 2006)(“This is an interlocutory appeal of a trial court’s denial of a jurisdictional plea. Although the plea was made as part of a motion for summary judgment, the court of appeals had jurisdiction to consider the interlocutory appeal under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code. We conclude that the court erred in determining that it was without jurisdiction to consider the appeal. However, we dismiss the claims relating to the respondent’s reinstatement to her employment because her failure to exhaust administrative remedies deprived the trial court of subject matter jurisdiction over those claims.”)(“The trial court was without subject matter jurisdiction to issue a declaratory judgment in this case and erred in denying Thomas’s jurisdictional challenge.”) Dismissed and Opinion filed In The Fourteenth Court of
Appeals _______________ _______________ TOMMY THOMAS, SHERIFF OF V. _______________________________________________________________ On Appeal from the 281st District Court Trial Court Cause No. 01-58372 _______________________________________________________________ O P I N I O N Tommy Thomas,
Sheriff of Harris County (the “Sheriff”), appeals a partial summary judgment
granted in favor of Jeanne Long on the grounds that the trial court lacked
jurisdiction over Long’s action. We
dismiss the appeal for lack of jurisdiction. Background After her
employment with the Sheriff’s Department (the “Department”) was terminated in
June of 2000, Long appealed the termination to the Harris County Sheriff’s
Department Civil Service Commission (the “Commission”). In September of 2001, the Commission
overturned the termination and ordered Long returned to work with no loss of
seniority or benefits, but denied her claim for reimbursement of (back)
wages. A dispute
thereafter arose between the parties as to whether, in connection with Long’s
return to work, she would be required to undergo the testing required by the
Department Manual for employees who were absent from duty for more than
twelve consecutive months. Long filed
suit in District Court against the Sheriff in his official capacity seeking:
(1) a mandamus directing the Sheriff to return her to work without testing;
(2) a declaratory judgment that she should be returned to work without
complying with the Department’s testing procedures; and (3) an award of back
pay and damages for retaliation for filing a discrimination charge with the
Texas Commission on Human Rights. After the
parties filed cross motions for summary judgment, the trial court signed
interlocutory partial summary judgment orders: (1) declaring that, under the
Commission’s order, Long was not required to perform any tests as a condition
to returning to work or to apply for re-employment; (2) dismissing Long’s
request for mandamus relief; and (3) recognizing that the only remaining
claims were Long’s claims for retaliation, back pay, and attorney’s fees. On appeal, the
Sheriff’s sole point of error asserts that the trial court lacked
jurisdiction over Long’s claims for the following reasons: (1) the Commission
has exclusive jurisdiction over grievances and disciplinary appeals of
Department employees; (2) Long failed to appeal the Commission’s order, file
a new grievance, or otherwise exhaust her administrative remedies regarding
the testing requirement before filing this action in the trial court; (3) the
Declaratory Judgment Act[1]
does not allow courts to declare the meaning of judgments and orders, such as
the Commission’s order; and (4) the County’s sovereign immunity has not been
waived with regard to Long’s claim for back pay. Jurisdiction Over Interlocutory Appeal An appeal may
generally be taken only from a final judgment. Lehman
v. Har-Con Corp., 39 S.W.3d 191, 195 ( In this case,
the Sheriff filed with his answer a partial “plea in bar”[3]
against Long’s reinstatement claims (i.e.,
those other than for retaliation) based on the exclusive or primary
jurisdiction of the Commission over Long’s claims. Lack of jurisdiction based on the exclusive
jurisdiction of the Commission was also a ground for the Sheriff’s partial
motion for summary judgment. The three
orders signed by the trial court reflect rulings on the cross motions for
partial summary judgment, but no express ruling on the Sheriff’s “plea in
bar.” Because one of the three orders
specifically acknowledges that claims remain in the lawsuit, and our record
contains no severance order, there is no final judgment disposing of all the
issues and parties. In addition,
because our record does not contain an order granting or denying a plea to
the jurisdiction, and because section 51.014(a) does not include an appeal of
the denial of summary judgment based on lack of subject matter jurisdiction,
that statute does not explicitly provide that we have jurisdiction over this
interlocutory appeal. See Stary, 967 S.W.2d at 352-53. Therefore, we may not exercise jurisdiction
over it. Challenges to Trial Court’s Jurisdiction Moreover, even
if the denial of the Sheriff’s motion for partial summary judgment based on
lack of jurisdiction could be viewed as the denial of a plea to the
jurisdiction under section 51.014(a), it would allow us to review only his
claim of exclusive jurisdiction. This
is because: (1) to the extent the Commission had primary, but not exclusive,
jurisdiction over Long’s claims, the trial court would not lack jurisdiction
over them;[4]
(2) if the Commission’s order was not the proper subject of declaratory relief,
the trial court only misapplied the Declaratory Judgment Act, it was not
deprived of jurisdiction over it; and (3) regardless whether the Sheriff’s
department is immune from liability
for Long’s claims for back pay, the Sheriff’s brief has not established that
it is immune from suit on those
claims, as would be necessary to establish the trial court’s lack of
jurisdiction over those claims.[5] As to the
Sheriff’s contentions regarding exclusive jurisdiction, he is correct that,
when an agency has exclusive jurisdiction, a party must exhaust all
administrative remedies before seeking judicial review of the agency’s
claim. See Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 ( However, an
agency has exclusive jurisdiction only when a pervasive regulatory scheme
indicates that the Legislature intended for the regulatory process to be the
exclusive means of remedying the problem to which the regulation is
addressed. See id. Whether an agency
has exclusive jurisdiction depends upon statutory interpretation. In this case,
the only statute cited by Sheriff Thomas in support of his exclusive jurisdiction
claim essentially states that the Commission shall “adopt, publish, and
enforce rules” regarding, among other things, employee disciplinary actions
and grievance procedures. However,
this language does not expressly refer to exclusive jurisdiction, and the
Sheriff has not cited a case holding that this or similar statutory or
regulatory language is sufficient to confer exclusive jurisdiction.[6] Under these circumstances, even if we had
jurisdiction to decide this appeal, we would lack a sufficient basis to
sustain the Sheriff’s contentions.
Accordingly, the appeal is dismissed for lack of jurisdiction. /s/ Richard H. Edelman Justice Judgment rendered and Opinion filed Panel consists of Justices Edelman, Seymore, and Guzman. |
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