IN THE SUPREME COURT OF TEXAS
444444444444
NO. 07-1011
444444444444
KEITH LOWELL, ET AL., PETITIONERS,
v.
CITY OF BAYTOWN, TEXAS, RESPONDENT
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444
PER CURIAM
Petitioners are firefighters for the City of Baytown. They sued the City, claiming that it
improperly calculated pay for certain assignments in violation of the Firefighter and Police Civil
Services Act. The firefighters sought declaratory and injunctive relief, as well as “all pay and
benefits lost as a result of Defendant’s failure to properly pay Plaintiffs during temporary assignment
of higher-classified duties.” The firefighters also requested prejudgment interest on back pay,
attorney’s fees, costs, and postjudgment interest. The City filed a jurisdictional plea asserting
governmental immunity, which the trial court granted.
The court of appeals affirmed the trial court’s judgment as to the firefighters’ back pay
claims, holding that City of Houston v. Williams, 216 S.W.3d 827 (Tex. 2007)(per curiam), and City
of Sweetwater v. Waddell, 218 S.W.3d 80 (Tex. 2007)(per curiam),1 “foreclose any award of money
1
In Waddell, firefighters sued the City of Sweetwater for failure to promote and failure to pay each firefighter
the same base salary as required by statute. City of Sweetwater v. Waddell, 218 S.W.3d 80, 80 (Tex. 2007)(per curiam).
The firefighters sought a declaration that the City’s actions were unlawful, an order that one firefighter be promoted,
damages under the Civil Service Act unless the Legislature gives to firefighters and police officers,
for whose benefit this act was passed, permission to sue.” 264 S.W.3d 31, 36.
In Williams, we held that retired firefighters could not pursue a declaratory judgment action
against the City to recover amounts allegedly withheld from lump-sum termination payments in
violation of the Local Government Code. Williams, 216 S.W.3d at 828. We applied the rule set out
in Texas Natural Resource Conservation Commission v. IT-Davy, 74 S.W.3d 849, 856 (Tex. 2002),
that the Declaratory Judgment Act cannot be used to circumvent immunity. Id. at 829. We noted
that “[t]he only injury the retired firefighters allege has already occurred, leaving them with only one
plausible remedy–an award of money damages.” Id.
More recently, in City of El Paso v. Heinrich, 284 S.W.3d 366, 380 (Tex. 2009), we
dismissed claims for retrospective relief for pension payments alleged to have been reduced in
violation of state law. We made clear that while “a claimant who successfully proves an ultra vires
claim is entitled to prospective injunctive relief, as measured from the date of injunction,”
retrospective monetary remedies are generally barred by governmental immunity. Heinrich, 284
S.W.3d at 376. Even if a suit seeking to require state officers to comply with statutory provisions
may be brought, its remedy may implicate immunity. See id. at 374 (noting the “curious situation”
that “the basis for the ultra vires rule is that a government official is not following the law, so that
immunity is not implicated, but because the suit is, for all practical purposes, against the state, its
remedies must be limited”). Recognizing that drawing the line for permissible remedies at monetary
attorney’s fees, costs, and monetary damages. Id. Waddell does not address whether a back pay award is barred by
governmental immunity. The trial court dismissed on the basis of governmental immunity. The court of appeals
reversed, holding that the City’s immunity from suit was waived by a “sue and be sued” clause in its charter. Id. at 81.
We reversed based on Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006). Id.
2
relief is “problematic,” we concluded that a “compromise between prospective and retroactive relief,
while imperfect, best balances the government’s immunity with the public’s right to redress in cases
involving ultra vires actions.” Id. at 374–75. Applying this rule, we dismissed Heinrich’s
retrospective claims for pension benefits allegedly withheld in violation of the statute governing the
pension fund. Id. at 380.
Here, the firefighters’ claims for back pay and related damages for improper calculation of
pay for assignments performed in the past are the type of retrospective relief that we held barred by
governmental immunity in Heinrich and Williams. In Heinrich we noted, however, that the
Legislature can authorize retrospective relief. The firefighters assert that the Legislature has done
so with Local Government Code sections 271.151–.160, enacted during the pendency of this appeal.2
The firefighters urge us to remand this case to the trial court so that they may replead in light of
Chapter 271, as we have done in numerous, similar cases (including Williams). See City of Dall. v.
Albert, ___ S.W.3d ___, ___ (Tex. 2011) (plaintiff firefighters and police officers sought declaratory
relief and damages for breach of contract); Williams, 216 S.W.3d at 829; see also City of Dall. v.
Dequire, 249 S.W.3d 428, 428–29 (Tex. 2008) (per curiam)(plaintiff police officers sought
declaratory relief and damages for failure to promote); Dall. Fire Fighters Ass’n v. City of Dall., 231
S.W.3d 388, 388–89 (Tex. 2007) (per curiam) (plaintiff firefighters sought declaratory relief,
injunctive relief, damages, and attorney’s fees for breach of contract and for violation of the city’s
charter and civil service board rules); City of Dall. v. Saucedo-Falls, 218 S.W.3d 79, 79–80 (Tex.
2007) (per curiam) (plaintiff police officers and firefighters sued for back pay, interest, attorney’s
2
The firefighters acknowledge that section 180.006 of the Local Government Code, which applies only to
claims “initially asserted on or after the effective date [June 15, 2007] of this Act,” Act of May 22, 2007, 80th Leg., R.S.,
ch 1200, § 3, 2007 Tex. Gen. Laws 4071, 4072, is inapplicable here.
3
fees, and alternatively for declaratory relief). We agree with the firefighters that a remand is
appropriate here.
The court of appeals also reversed the trial court’s judgment dismissing the firefighters’
claims for prospective declaratory and injunctive relief, holding that such claims did not implicate
governmental immunity. Although the court of appeals correctly concluded that immunity does not
preclude certain prospective claims, we recently held that such actions must be brought against the
relevant government officials, rather than the governmental entity itself. See Heinrich, 284 S.W.3d
at 373 (observing that “these suits cannot be brought against the state, which retains immunity, but
must be brought against the state actors in their official capacity. This is true even though the suit
is, for all practical purposes, against the state.”). Here, the firefighters named the City rather than
city officials in their official capacity as Heinrich requires, but their pleading predated Heinrich.
In addition to remanding to permit the firefighters to replead in light of chapter 271, our remand will
also permit the firefighters to replead in light of Heinrich and seek appropriate relief, if any, against
the relevant city officials.
Accordingly, we grant the firefighters’ petition for review and, without hearing oral
argument, reverse the court of appeals’ judgment and remand the case to the trial court for further
proceedings consistent with this opinion. TEX. R. APP. P. 59.1, 60.2(d).
OPINION DELIVERED: December 16, 2011
4