MEMORANDUM OPINION
No. 04-09-00658-CV
Juan Carlos SOLIS and Roberto Ruiz,
Appellants
v.
CITY OF EAGLE PASS, TEXAS,
Appellee
From the 365th Judicial District Court, Maverick County, Texas
Trial Court No. 07-12-23119 MCVAJA
Honorable Amado J. Abascal, III, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: October 13, 2010
AFFIRMED
Juan Carlos Solis and Roberto Ruiz appeal the trial court’s order granting the plea to the
jurisdiction filed by the City of Eagle Pass, Texas. Solis and Ruiz contend the trial court erred in
granting the plea because the employment contract they had with the City waived the City’s
sovereign immunity or, alternatively, the employment contract is a services contract for which
immunity is waived under section 271.151, et al. of the Texas Local Government Code. Because
we conclude no employment contract existed, we affirm the trial court’s order.
04-09-00658-CV
This court carried the City’s second motion to dismiss for lack of appellate jurisdiction
with this appeal. In the motion, the City argues that the notice of appeal filed by Solis and Ruiz
was untimely because their request for findings of fact and conclusions of law did not extend the
appellate deadlines. Under the facts and circumstances presented in this case, we disagree.
The deadline for filing a notice of appeal is extended if any party timely files a request
for findings of fact and conclusions of law “if findings and conclusions either are required by the
Rules of Civil Procedure or, if not required, could properly be considered by the appellate court.”
TEX. R. APP. P. 26.1(a)(4); see also IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d
440, 443 (Tex. 1997). The Texas Supreme Court has stated that a request for findings of fact and
conclusions of law does not extend appellate deadlines when a case is dismissed for want of
jurisdiction without an evidentiary hearing; however, if a trial court grants a plea to the
jurisdiction after an evidentiary hearing, such a request will extend the deadlines. Compare IKB
Industries (Nigeria) Ltd., 938 S.W.2d at 443 (deadlines not extended if case dismissed without
evidentiary hearing), with Gene Duke Builders, Inc. v. Abilene Housing Authority, 138 S.W.3d
907, 908 (Tex. 2004) (deadlines extended where plea granted after evidentiary hearing); see also
Bland Ind. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) (noting trial court deciding a plea
to the jurisdiction must consider evidence when necessary to resolve the jurisdictional issue
raised). Accordingly, because Solis and Ruiz are appealing an order granting the City’s plea to
the jurisdiction, their request for findings of fact and conclusions of law would extend the
appellate deadline only if the trial court held an evidentiary hearing.
One of the issues presented at the hearing before the trial court was whether an
employment contract existed between the parties. Generally, whether a contract exists between
parties is a question of fact; however, in some cases, a court may decide the fact question as a
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matter of law. See Foreca, S.A. v. GRD Development Co., 758 S.W.2d 744, 746 (Tex. 1988);
Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 24 (Tex. App.—Houston [14th
Dist.] 2005, no pet.); see also Texas Southern Univ. v. State Street Bank & Trust Co., 212
S.W.3d 893, 902 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (noting plea to jurisdiction
must be denied where the State contends that it is immune on the basis of a contract dispute but
where fact issues exist regarding the existence of a contract). The City attached fifteen
documents to its plea, asserting they were “a set of authenticated and admissible exhibits.” One
of these documents was the City’s Personnel Rules and Regulations, which Solis and Ruiz
heavily rely on in asserting an employment contract existed. Similarly, Solis and Ruiz attached a
number of exhibits to their response to the City’s plea.
A second issue presented at the hearing was whether immunity was waived even if the
trial court found an employment contract existed. At the hearing, the City’s attorney asserted
that the existence of a contract would not waive immunity absent an express waiver and the
contract could not be considered a contract for which immunity was waived under chapter 271 of
the Local Government Code.
The trial court’s order states that the trial court considered the plea, the responses, the
contents of the Court’s file, and the arguments and authorities presented by counsel. The trial
court’s order does not, however, state the basis on which the trial court granted the City’s plea.
As a result, the trial court could have found that a contract existed based on the evidence
presented, but the trial court could have determined that the contract did not waive the City’s
immunity. Because the trial court considered evidence in resolving the issue regarding the
existence of the contract and because the findings and conclusions could have a purpose or
would be a useful tool for appellate review under the circumstances presented, we conclude that
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the request for findings of fact and conclusions of law in this case extended the appellate
deadlines. See Gene Duke Builders, Inc., 138 S.W.3d at 908; Phillips v. Beavers, 938 S.W.2d
446, 447 (Tex. 1997). Accordingly, the City’s second motion to dismiss for lack of appellate
jurisdiction is denied.
We next consider whether an employment contract existed between the parties. Given
the existing precedent, we will not belabor this point. “For well over a century, the general rule
in this State, as in most American jurisdictions, has been that absent a specific agreement to the
contrary, employment may be terminated by the employer or the employee at will, for good
cause, bad cause, or no cause.” Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502
(Tex. 1998). “As a general rule employee handbooks and policy manuals constitute general
guidelines in the employer/employee relationship and do not create implied contracts between
the employer and employee.” Brown v. Sabre, Inc., 173 S.W.3d 581, 585 (Tex. App.—Fort
Worth 2005, no pet.). “[S]tatements that an employee will be discharged only for ‘good reason’
or ‘good cause’” do not give rise to a binding contract of employment “when there is no
agreement on what those terms encompass.” Montgomery County Hosp. Dist., 965 S.W.2d at
502.
Solis and Ruiz assert the City’s Personnel Rules and Regulations created an employment
contract because it limited termination to “just cause.” After considering the same argument
made by Solis and Ruiz in this appeal, a federal magistrate judge concluded that the City’s
Personnel Rules and Regulations did not alter the “at will” employment relationship between the
City and its employees. Barrientos v. City of Eagle Pass, No. DR-02-CA-27-OLG/DG, slip op.
at 4-9 (W.D. Tex. Feb. 10, 2003). The magistrate judge reasoned:
The plaintiff argues that he had a property interest based on section 2-
22(g)(1) of the Personnel Rules and Regulations, which provides, among other
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things that “[a] department head shall recommend immediate dismissal when the
nature of the offense warrants such action.” The provision adds that “[t]he
following offenses will be grounds for immediate dismissal including but not
limited to ….” It then lists nine offenses which would justify immediate
dismissal, followed by a tenth clause which states, “Any other just cause, as
determined by the department head with approval of the city manager.” The key
issue here, as noted by the defendant, is not whether there is a listing of offenses
for which an employee may be terminated, but whether the personnel rules clearly
and explicitly limited the possible reasons for termination to those items listed. A
personnel manual may modify the traditional at-will relationship “if it specifically
and expressly curtails the employer’s right to terminate the employee.” In this
case, the personnel rules clearly do not guarantee that dismissal will occur only
for those reasons specified. It is, rather, a partial listing of reasons that suggest
causes for termination; it does not provide the only and exclusive means for
firing. In addition to not limiting the reasons for which an employee could be
dismissed to those nine offenses listed (e.g., the “including but not limited to”
language in section 2-22(g)(1)), the rule contains a significant catch-all provision:
Employees may be dismissed for “[a]ny other just cause as determined by the
department head with approval of the city manager.” The reference to “just
cause” notwithstanding, the City Manager has complete discretion to determine
what “just cause” is. There is, for example, nothing in the personnel rules that
prevents the City Manager for finding that a “lack of confidence in job
performance” or any other conduct constituted just cause for termination.
Id. at 8-9 (citations omitted). The magistrate’s recommendations were subsequently accepted by
a federal district judge. See Barrientos v. City of Eagle Pass, No. DR-02-CA-027-OG (W.D.
Tex. Mar. 28, 2003) (order). We also agree with the federal magistrate judge’s analysis and hold
no employment contract existed between the City and Solis and Ruiz.
The trial court’s order is affirmed.
Catherine Stone, Chief Justice
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Juan Carlos Solis and Roberto Ruiz v. City of Eagle Pass
Combined Opinion