Dallas Court of Appeals disagrees with El Paso Court of Appeals and holds civil service commission dismissal of grievance is still subject to appeal to district court

Rodney D. Bailey v. Dallas County, et al.,  05-16-00789-CV (Tex. App. – Dallas, December 21, 2017)

This is a county civil service case where the Dallas Court of Appeals affirmed-in-part and reversed-in-part the County Defendants’ plea to the jurisdiction filed in a district court case challenging his termination.

Bailey was a Dallas County Deputy Sheriff who was indicted for sexual assault and suspended from active duty.  Bailey timely filed a grievance challenging his termination.  Before the Civil Service Commission (“Commission”) held a hearing, the County dismissed the charges against Bailey.  Once the hearing was set, the County requested that the Commissioners dismiss Bailey’s grievance because he did not request a hearing within thirty days of the dismissal of the indictment, which the County asserted was required by §5.02(2) of the Dallas County Sheriff’s Department Civil Service Rules.  The Commission granted the motion. Bailey then filed suit in district court under §158.037 of the Texas Local Government Code, which allows for an appeal from a  Commission order removing him or demoting him. He also brought declaratory judgment claims asserting the Commission’s rules were void and the Commission acted in an ultra vires manner.  The County Defendants filed a plea to the jurisdiction, which the trial court granted. Bailey appealed.

The County Defendants asserted the Commission’s order did not demote or remove him but was simply a dismissal of the appeal. However, this has the effect of leaving the Sheriff’s removal in place. The court noted County of El Paso v. Zapata, 338 S.W.3d 78 (Tex. App.—El Paso 2011, no pet.) expressly supported the County Defendants’ position. However, the court disagreed with the El Paso Court of Appeals, thereby causing a split in the districts. The Commission’s dismissal supported the Sheriff’s removal and therefore §158.037 was applicable. Next, the court analyzed the UDJA claims. Ultra vires claims under the UDJA are prospective only. Bailey clearly is seeking retrospective relief under the UDJA, which is not permitted. Bailey’s request for a prospective hearing would require the retrospective setting aside of the prior order of dismissal. Bailey’s pleadings also do not actually seek the invalidity of a Commission rule or state statute. He asserts the Commission injected provisions which are not contained within the state statutes. These are complaints about the applicability and construction of the sections, not that they are invalid.  Bailey sought a writ of mandamus ordering the County to provide him a Commission hearing. The court disagreed the Commission had the discretion to provide Bailey a hearing. Officials have no discretion to misapply the law. As a result, the court had jurisdiction to hear Bailey’s mandamus claim to a hearing, even though it has a retrospective effect. Finally, the County asserted the Commission was not a separate jural entity subject to suit. Whether the Commission has a separate and distinct legal existence is a jurisdictional fact question. The County has the burden in a plea.  It presented no evidence the Commission does not have a separate and distinct legal existence.  The court, in a footnote, stated it expressed no opinion as to what the ultimate result of the analysis would be once evidence is submitted, only that the trial court had jurisdiction to consider the issue.

If you would like to read this opinion click here. Panel includes Justice Bridges, Justice Myers and Justice Schenck.  Memorandum Opinion by Justice Myers. The attorney listed for Bailey is Lance Franklin Wyatt.  The attorney listed for the County Defendants is Tammy Jean Ardolf.

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