City of Brownsville, Texas, Ernie Hernandez & Carlton "Bud" Richards, as Members of the City of Brownsville Commission v. Neece, Hon. Ben R.

NUMBER 13-99-661-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ CITY OF BROWNSVILLE, ERNIE HERNANDEZ, and CARLTON "BUD" RICHARDS, In Their Official Capacity, Appellants, v. THE HONORABLE BEN NEECE, Appellee. ___________________________________________________________________ On appeal from the 138th District Court of Cameron County, Texas. ________________________________________________________________ O P I N I O N Before Chief Justice Seerden, and Justices Hinojosa and Yañez Opinion by Justice Yañez This is an interlocutory appeal from the trial court's denial of a plea to the jurisdiction. We affirm. The mayor and commissioners of the City of Brownsville ("the City") adopted a budget for fiscal year 1999-2000 which eliminated the full time municipal court judge position held by Ben Neece. Neece subsequently filed suit against the City in district court, seeking injunctive relief and asserting various causes of action. The City responded by filing an answer, which raised the affirmative defenses of legislative immunity, absolute immunity, and official immunity. The City also filed a plea to the jurisdiction, asserting the district court lacked subject matter jurisdiction because Neece "ha[d] not pleaded a cause of action against the CITY DEFENDANTS recognized at law and over which this Court would [have] a basis for exercising its judicial authority over the CITY DEFENDANTS." The sole issue presented by the City is whether Neece "has stated a viable claim for relief under Texas law so as to give the trial court a factual and legal basis" for exercising subject matter jurisdiction over this controversy. Jurisdiction This Court has jurisdiction over an interlocutory appeal from the grant or denial of a plea to the jurisdiction by a governmental unit. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (Vernon Supp. 2000). Mootness As a preliminary matter, we address the issue of whether this appeal is now moot. Circumstances have changed significantly since the parties filed their briefs. A supplemental clerk's record shows the City has reversed its action, reinstating Neece as associate municipal judge, and, as a result, the trial court has dissolved the injunctive relief it had granted. However, at oral argument, counsel for appellant and appellee asserted that a controversy still exists in that the parties have not resolved the issue of damages. We recognize that Texas courts have no jurisdiction to render advisory opinions. See Tex. Const. art. 2, § 1; National Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999); Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). A case becomes moot if, at any stage, there ceases to be an actual controversy between the parties. National Collegiate Athletic Ass'n, 1 S.W.3d at 444. The distinctive feature of an advisory opinion is that it decides an abstract question of law without binding the parties. Texas Ass'n of Bus., 852 S.W.2d at 444; Texas Workforce Com'n v. Gill on Behalf of $2,583.45, 964 S.W.2d 308, 310 (Tex. App.--Corpus Christi 1998, no pet.). After reviewing the record and the briefs filed in this case, we are satisfied that an actual controversy still exists between the parties, and therefore, we address the narrow issue presented. Appellant's counsel also has invited this Court, for the sake of judicial economy, to consider the changed circumstances and decide whether a private right of action for damages under the relevant constitutional provisions, statutes, and the city charter is precluded, thereby extending the holding of City of Beaumont v. Boullion, 896 S.W.2d 143 (Tex. 1995), that there is no implied private right of action for damages arising under the free speech and free assembly sections of the Texas Constitution. Given the narrow scope of this appeal, we decline this invitation and limit our consideration to the question of whether the trial court erred in denying the City's plea to the jurisdiction. Standard of Review Generally, a plea to the jurisdiction urges that the court lacks the power to determine the subject matter of the controversy. City of El Campo v. Rubio, 980 S.W.2d 943, 945 (Tex. App.--Corpus Christi 1998, pet. dism'd w.o.j.); State v. Benavides, 772 S.W.2d 271, 273 (Tex. App.--Corpus Christi 1989, writ denied). When deciding whether to grant a plea to the jurisdiction, the trial court must look solely to the allegations in the petition. Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex. App.--Austin 1994, writ denied). It is the plaintiff's burden to allege facts in his petition affirmatively showing that the trial court has subject matter jurisdiction. Texas Ass'n of Bus., 852 S.W.2d at 446. The trial court is required to take the allegations in the pleadings as true and construe them in favor of the pleader. Id. If the trial court sustains a plea to the jurisdiction, it must dismiss the case. Speer v. Stover, 685 S.W.2d 22, 23 (Tex. 1985); American Pawn & Jewelry, Inc. v. Kayal, 923 S.W.2d 670, 672 (Tex. App.--Corpus Christi 1996, writ denied). Whether a trial court has subject matter jurisdiction is a question of law which the appellate court reviews de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); American Pawn & Jewelry, 923 S.W.2d at 672. The scope of review in this interlocutory appeal is limited to the issues presented to the trial court. See Caspary v. Corpus Christi Downtown Management Dist., 942 S.W.2d 223, 225 (Tex. App.--Corpus Christi 1997, writ denied) (only matters presented to the trial court will be reviewed in appeal from an order sustaining a plea to the jurisdiction). In reviewing the grant or denial of a plea to the jurisdiction, we are precluded from considering the merits of the case. Texas Dept. of Transp. v. City of Sunset Valley, 8 S.W.3d 727, 730 (Tex. App.--Austin 1999, no pet.). Discussion We begin our review by examining the pleadings. Neece alleges in his petition that he was first appointed municipal court judge by the city manager of Brownsville in 1984 and was re-appointed for eight consecutive two-year terms by the city manager with no complaint or criticism of his work product, productivity, or efficiency. The city manager re-appointed Neece for a two-year term again on August 20, 1998, and on or about February 1, 1999, he was appointed judge of the Southmost branch of the City's municipal court. In a September 21, 1999 public meeting, the city commissioners confronted Neece, indicating their dissatisfaction with his performance. After the confrontation, the city commissioners took action concerning Neece by adopting a city budget which eliminated his associate judge position. In the petition, Neece seeks injunctive relief and damages. The crux of Neece's complaint is that the city commission did not have the authority to terminate him. Neece alleges the City's actions violated the separation of powers clause of the Texas Constitution. See Tex. Const. art. 2, § 1; see also Tex. Const. art. 5, § 1. Neece also alleges in his petition that the City's actions violated the city charter and a city ordinance, section 29.005 of the government code,(1) and the notice provisions of the Texas Open Meetings Act (section 551.041 of the government code).(2) Neece contends the City prevented him from exercising his duties of impartiality and fairness in violation of articles 43.04, 45.50, and 45.521 of the code of criminal procedure.(3) Finally, Neece alleges causes of action for intentional infliction of emotional distress, "tortious interference with Judge Neece's appointive relation" with the City through its city manager, and damage to Neece's reputation. The basis of the City's plea to the jurisdiction is that the trial court lacked subject matter jurisdiction because Neece failed to plead a cognizable cause of action against the City. Specifically, the City argues in its unverified plea that the notice requirements of the Texas Open Meetings Act were satisfied; that Neece was an at-will employee of the City; that the city charter provides that the city manager may remove the appointed official at any time; that the City's personnel policy provides that its employees have no contract of employment or right to a stated term of office or position; that the City personnel policy makes it clear that an employee may be laid off; that the city code provides the city commission may deem it unnecessary to fill the office in question; that section 29.005 of the government code provides there is no private cause of action for an officeholder; that the elimination of the position because it was an unnecessary one is a core function of the city commissioners acting in the exercise of their discretion; and that there is no private right of action under the Texas Constitution, statute, city charter, or city ordinance. We conclude Neece has met his burden of pleading facts showing the trial court has subject matter jurisdiction over the pending controversy. First, Neece's petition sets forth facts alleging the City's actions violated the separation of powers provisions of the Texas Constitution, see Tex. Const. art. 2, § 1, and seeks an equitable remedy. Without addressing the merits of the injunctive relief granted by the trial court, we note that generally suits for equitable remedies for violations of constitutional rights are not prohibited. See Bouillion, 896 S.W.2d at 149. Second, Neece's pleadings allege the City violated the Texas Open Meetings Act by failing to post the proper notice prior to taking action. The City's plea merely addresses the merits of Neece's Texas Open Meetings Act claim(4) without showing that the trial court lacked jurisdiction to entertain such a claim. Finally, the scope of this interlocutory appeal is limited to issues actually presented to the trial court in the City's plea to the jurisdiction. See Caspary, 942 S.W.2d at 225. The City never directly attacked the trial court's subject matter jurisdiction based on governmental immunity in its plea to the jurisdiction.(5) See Texas Dept. of Trans. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999) (immunity may be properly raised in a plea to jurisdiction). Thus, the factual allegations supporting Neece's claims for damage to his reputation and intentional infliction of emotional distress demonstrate the trial court's subject matter jurisdiction. We hold the facts in Neece's pleadings, if taken as true, are sufficient to invoke the trial court's subject matter jurisdiction over the controversy. The trial court did not err in denying the City's plea to the jurisdiction. The judgment of the trial court is affirmed. _______________________ LINDA REYNA YAÑEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 4th day of May, 2000. 1. This statute provides: The judge of a municipal court serves for a term of office of two years unless the municipality provides for a longer term pursuant to Article XI, Section 11, of the Texas Constitution. A municipal court judge who is not reappointed by the 91st day following the expiration of a term of office shall, absent action by the appointing authority, continue to serve for another term of office beginning on the date the previous term of office expires. See Tex. Gov't Code Ann. § 29.005 (Vernon Supp. 2000). 2. This statute provides: A governmental body shall give written notice of the date, hour, place, and subject of each meeting held by the governmental body. See Tex. Gov't Code Ann. § 551.041 (Vernon 1994). 3. These provisions pertain generally to a judge's discretion in issuing a capias for an absent defendant, ordering the payment of fines, and ordering community supervision in lieu of fines or costs. Neece alleges the City pressured him to collect fines immediately from defendants rather than allowing them additional time to pay fines. 4. Even at oral argument, the City's position was that the Texas Open Meetings Act violations have been cured, not that the claims were jurisdictionally-barred. 5. The term "immunity" does not appear in the City's plea to the jurisdiction. The plea merely states: Because the actions complained [of] occurred in the context of governmental budget session, Plaintiff's claim for damage to reputation, infliction of emotional distress, tortious interference, damages to Plaintiff, and exemplary damages, are also not claims or causes of action cognizable under Texas law against a government entity and it[s] officials acting within the scope of their office.