Opinion filed April 12, 2012
In The
Eleventh Court of Appeals
__________
No. 11-10-00309-CV
__________
TOMMY GRANT, Appellant
v.
COMMISSIONERS COURT OF NAVARRO COUNTY, TEXAS, Appellee
On Appeal from the 13th District Court
Navarro County, Texas
Trial Court Cause No. 10-18829-CV
MEMORANDUM OPINION
Tommy Grant, constable of Precinct 4, Navarro County, sought a mandamus in the
district court and asked the district court to order the Commissioners Court of Navarro County,
Texas, to set a reasonable salary for his office. The district court denied relief. We affirm.
When Grant filed his petition for writ of mandamus, he was the constable of Precinct 4,
Navarro County. He officially had taken office as Constable on January 1, 2009.
Navarro County’s fiscal year begins on October 1 each year and ends on September 30 of
the following year. The commissioners court of Navarro County approved the budget for fiscal
year 2008–2009 by order dated September 22, 2008. That budget period began on October 1,
2008, and ended on September 30, 2009. The commissioners court approved the budget for
fiscal year 2009–2010 by order dated September 21, 2009. That budget period began on
October 1, 2009, and ended on September 30, 2010. On September 14, 2009, not satisfied with
the salary that the commissioners court set for his office for fiscal year 2009–2010, Grant filed a
request to be heard by the Navarro County salary grievance committee. That hearing never took
place. Next, on January 22, 2010, Grant filed his original petition for writ of mandamus. He
filed an amended petition for writ of mandamus on August 13, 2010.
In his amended petition, Grant asked the trial court to order the commissioners court to
set a reasonable salary for his office for “the fiscal years 2009 and 2010.” It is apparent from
Grant’s pleadings that, when he refers to fiscal year 2009, he is referring to that period of time
beginning October 1, 2008, and ending on September 30, 2009. When he refers to fiscal year
2010, he is referring to that period of time beginning October 1, 2009, and ending on
September 30, 2010.
On July 19, 2010, the commissioners court filed a “Motion for Summary Judgment and
Plea to the Jurisdiction.” On August 27, 2010, the district court granted the motion and ordered
that Grant “take nothing by his claims.” The district court did not state the reasons why it
entered its order. This appeal followed.
Grant presents us with one issue: “Whether the district court has mandamus power and
jurisdiction over the county commissioners court to force it to set a reasonable salary for the
constable’s office.” The answer to that question is generally yes. The commissioners court
agrees with that general proposition, but argues that the district court’s power and jurisdiction are
not without limitation.
The principal governing body of a county is the commissioners court. TEX. CONST.
art. V, § 18.
As concerns the salary issue before us, the Texas Constitution, Article XVI, section 61
provides in relevant part:
In all counties in this State, the Commissioners Courts shall be authorized
to determine whether precinct officers shall be compensated on a fee basis or on a
salary basis, with the exception that it shall be mandatory upon the
Commissioners Courts, to compensate all justices of the peace, constables, deputy
constables and precinct law enforcement officers on a salary basis.
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TEX. CONST. art. XVI, § 61(b). Sections 152.011 and 152.013(a) of the Texas Local
Government Code also address the obligation of a commissioners court in relation to salaries and
expenses of county and precinct officers, elected county or precinct officers, and employees.
TEX. LOC. GOV’T CODE ANN. §§ 152.011, 152.013(a) (West 2008).
A commissioners court must not only set a salary—the one it sets must be a reasonable
one. Vondy v. Comm’rs Court of Uvalde Cnty., 620 S.W.2d 104, 108–09 (Tex. 1981). This duty
is entrusted to the discretion of the commissioners court, and the duty is a mandatory and
ministerial one. Ector Cnty. v. Stringer, 843 S.W.2d 477, 479 (Tex. 1992).
Under the Texas Constitution, the district court has “appellate jurisdiction and general
supervisory control over the County Commissioners Court, with such exceptions and under such
regulations as may be prescribed by law.” TEX. CONST. art. V, § 8. The enabling legislation
repeats the constitutional provision. TEX. GOV’T CODE ANN. § 24.020 (West 2004); Comm’rs
Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 79 (Tex. 1997).
As we have said, the commissioners court rightly concedes that district courts generally
have mandamus power and jurisdiction over the commissioners court and may order it to set a
reasonable salary for a constable, but the commissioners court asserts that there are limitations to
what the district court may do. It urges that one such limitation is found in Section 152.0165(a)
of the Local Government Code. “An elected county or precinct officer may not file suit
regarding the officer’s salary or personal expenses unless a hearing has been requested and held
under Section 152.016.” TEX. LOC. GOV’T CODE ANN. § 152.0165(a) (West 2008).
Section 152.016 details the procedure for hearings in salary grievance matters. Id. § 152.016.
The commissioners court takes the position that a Section 152.016 hearing was never held for
either fiscal year and that, because there was not, the district court was deprived of jurisdiction in
this case.
Subject-matter jurisdiction is a threshold question. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Therefore, we will first address the commissioners
court’s claim that Section 152.0165 of the Local Government Code is a bar to Grant’s suit. We
first note that both a plea to the jurisdiction and a motion for summary judgment are appropriate
for challenging subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554
(Tex. 2000). Here, the commissioners court has challenged subject-matter jurisdiction through
both vehicles.
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To invoke the subject-matter jurisdiction of a court, the one bringing the claim must
allege facts that affirmatively demonstrate that the court has jurisdiction to hear it. Miranda, 133
S.W.3d at 226; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A
defendant will prevail on a plea to the jurisdiction if he shows an incurable jurisdictional defect
apparent from the face of the pleadings that makes it impossible for the plaintiff’s petition to
confer jurisdiction on the district court. Miranda, 133 S.W.3d at 226–27. Courts must consider
evidence when necessary to decide jurisdictional issues. Id. at 221; Tex. Natural Res.
Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001); Bland Indep. Sch. Dist., 34
S.W.3d at 554–55. If the relevant evidence is undisputed or fails to raise a fact question on the
jurisdictional issue, a district court rules on the plea to the jurisdiction as a matter of law.
Miranda, 133 S.W.3d at 228.
Here, as a matter of law, Grant’s pleadings show that no salary grievance committee
hearing was either requested or held for fiscal year 2008–2009. As far as fiscal year 2009–2010
is concerned, Grant pleaded that he did not know about the budget for his office for that fiscal
year until he went to a budget hearing on September 14, 2009. At that hearing, Grant requested a
salary increase. The commissioners court tabled consideration of Grant’s salary request.
Grant left that meeting and prepared a written request for a hearing before the Navarro
County salary grievance committee. Later that afternoon, he took the request to Navarro County
Commissioners James Olsen and Faith Holt. Both Olsen and Holt told Grant that there was no
salary grievance committee in Navarro County. Grant took his request to the county judge’s
office. The county judge’s secretary told him that there was no salary grievance committee in
Navarro County because it had not been completely formed.
The Navarro County salary grievance committee had not been completely formed
because the public members of the committee had not been selected. When complete, a salary
grievance committee is composed of nine voting members. TEX. LOC. GOV’T CODE ANN.
§ 152.014 (West 2008). The county judge is the nonvoting chairman of a salary grievance
committee. Id. § 152.014(b). Certain elected officials are voting members of the committee. Id.
§ 152.014(a)(1). Additionally, the statute provides for the appointment of enough public
members to bring the number of voting members to nine. Id. Or, the commissioners court may
vote to use nine public members to constitute the committee. Id. § 152.014(a)(2). No public
members had been appointed to the salary grievance committee in Navarro County for either of
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the fiscal years under review. The commissioners court maintains that, regardless of that fact,
the statute’s requirements are clear—not only must there be a request for a hearing, the hearing
must be held. Until both of the requirements are met, the district court is deprived of jurisdiction
to hear and determine the matter.
The commissioners court is correct. As previously noted, Section 152.0165(a) provides:
“An elected county or precinct officer may not file suit regarding the officer’s salary or personal
expenses unless a hearing has been requested and held under Section 152.016” (emphasis
added). Unlike other statutes that only require a claimant to initiate grievance proceedings, here
the request for a hearing and the hearing itself are both prerequisites to a suit. Compare
Section 152.0165 (claimant required to request a hearing before the grievance committee and
hearing actually must be held), with TEX. GOV’T CODE ANN. § 554.006 (West 2004) (claimant
only required to initiate grievance procedures under Whistleblower Act), and Univ. of Tex. Med.
Branch at Galveston v. Barrett, 159 S.W.3d 631, 632 (Tex. 2005) (“Section 554.006 does not
require that grievance or appeal procedures be exhausted before suit can be filed; rather, it
requires that such procedures be timely initiated . . . .”). Such prerequisites are a matter of
subject-matter jurisdiction. “Statutory prerequisites to a suit . . . are jurisdictional requirements
in all suits against a governmental entity.” TEX. GOV’T CODE ANN. § 311.034 (West Supp.
2011).
Subject-matter jurisdiction is “essential to the authority of a court to decide a case” and
“is never presumed and cannot be waived.” Tex. Ass’n of Bus., 852 S.W.2d at 443–44. Because
there was no hearing before a salary grievance committee on Grant’s salary claims—
jurisdictional prerequisites to suit—the district court was without jurisdiction to hear them.1 The
district court was correct to grant the commissioners court’s plea to the jurisdiction. Grant’s sole
issue on appeal is overruled.
The district court denied Grant’s request for attorney’s fees. Although Grant asked for
the award of attorney’s fees in his prayer for relief in this court, he has not brought forward an
issue on that point and has not briefed it. Therefore, we need not consider the award of
attorney’s fees. See TEX. R. APP. P. 38.1.
1
Although the availability of such an order is not before us, we note that, when Grant found out that there was no salary
grievance committee in Navarro County, he did not attempt to invoke the supervisory power of the district court in an effort to
get the district court to order the commissioners court to perform their mandatory, nondiscretionary duty to organize fully the
salary grievance committee so that he could have a hearing before them.
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The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
April 12, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.
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