Orange County Sheriff's Office Employees Association, Jason Guidroz, Tracy Sorge, Matthew Wappler, Jessica Johnnie, Michael Lucia, Matt Bryant, Andrew Hollier, Elizabeth Frederick, Jonathan Payne, Donald Harmon, Cenovia Dempsey, Mark Felts, and Samantha Courtney v. Orange County, Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00101-CV
__________________
ORANGE COUNTY SHERIFF’S OFFICE EMPLOYEES
ASSOCIATION, JASON GUIDROZ, TRACY SORGE, MATTHEW
WAPPLER, JESSICA JOHNNIE, MICHAEL LUCIA, MATT BRYANT,
ANDREW HOLLIER, ELIZABETH FREDERICK, JONATHAN PAYNE,
DONALD HARMON, CENOVIA DEMPSEY, MARK FELTS,
AND SAMANTHA COURTNEY, Appellants
V.

ORANGE COUNTY, TEXAS, Appellee

__________________________________________________________________

On Appeal from the 260th District Court
Orange County, Texas
Trial Cause No. D-200,792-C
__________________________________________________________________
MEMORANDUM OPINION
In this appeal we must decide whether the trial court erred in granting a

summary judgment to Orange County, Texas (Appellee or the County) in a

declaratory judgment and injunction action the County filed against thirteen former

1
employees1 (the former Deputies) of the Orange County Sheriff’s Department and

against the Orange County Sheriff’s Office Employees Association (the

Association). The County and the Association have a Collective Bargaining

Agreement (CBA) in place which governs certain employment disputes and contains

an arbitration provision. The County filed a traditional Motion for Summary

Judgment seeking a judgment declaring that the new Sheriff’s “nonappointment” of

the former Deputies and his other decisions to hire or promote others were not

“disciplinary actions” governed by the CBA and the County argued that arbitration

was not required. The trial court granted the County’s summary judgment, and the

former Deputies and the Association filed this appeal. Because we conclude the

question of whether the Sheriff’s decisions are governed by the CBA is a “gateway

issue” to be determined by the arbitrator in accordance with the terms of the CBA,

we reverse and remand.

Background

Each of the former Deputies served as a deputy under previously elected

Sheriff Keith Merritt (Sheriff Merritt) until June of 2020. Sheriff Merritt did not run

for reelection, and he retired in June 2020, six months before the end of his four-

1
The former Deputies include Matt Bryant, Samantha Courtney, Cenovia
Dempsey, Mark Felts, Elizabeth Frederick, Jason Guidroz, Andrew Hollier, Jessica
Johnnie, Donald Harmon, Michael Lucia, Jonathan Payne, Tracy Sorge, and
Matthew Wappler.
2
year term. 2 In March of 2020, Jimmy Mooney ran for Sheriff and won the

Republican Primary.3 Mooney was unopposed in the General Election, and he was

elected to a full four-year term in the general election held in November of 2020.4

Sheriff Elect Mooney sent a letter dated June 10, 2022 to the deputies named as

parties herein, stating:

As you know, under Texas Law, your TCOLE Commission, held by
the Orange County Sheriff’s Office expires on June 30, 2020 due to
Sheriff Merritt’s early retirement. The newly elected sheriff must sign
the deputization for each sworn position including his ranking staff,
deputies, correctional officers and telecommunicators.

In the event that I am appointed, it is incumbent upon me to extend
offers of employment to those applicants that I, in my judgment, would
consider to be the “best fit” for my administration. After careful
consideration, I have filled all available positions within the Sheriff’s
Office. It is with much regret that I am unable to extend an offer of
employment to you at this time.

It is my obligation under state law, to render an accurate accounting of
all Sheriff’s office property. Although I cannot currently require you to
do so, it is strongly suggested that you gather all Orange County

2
Sheriff Merritt was elected to a four-year term of office beginning January
1, 2017 and ending December 31, 2020. See Tex. Const. Art. V, § 23 (providing that
county sheriffs shall hold office for a term of four years and vacancies shall be filled
by the Commissioners Court until the next general election).
3
An appellate court has the discretion to take judicial notice of adjudicative
facts that are matters of public record for the first time on appeal. See Tex. R. Evid.
201(b), (c), and (f). Orange County, Texas Election Results: March 2020 Primary
Results,
https://www.co.orange.tx.us/media/Elections/2020%20Primary/Election%20Summ
ary_031020.pdf (last visited February 12, 2023).
4
Orange County, Texas Election Results: November 2020 General Results,
https://www.co.orange.tx.us/media/Elections/2020/Orange%20County%20General
%202020%20Election%20Day.pdf (last visited February 12, 2023).
3
 Sheriff’s Office property within your possession and be prepared to
surrender this property on or before the 30th day of June, 2020, at 5:00
p.m. I will be working with the Sheriff’s Office Purchasing Agent along
with Orange County’s Purchasing Agent to render an accurate
accounting of all county property. It is my obligation to fulfill that
request.

Although I am unable to extend an offer of employment to you at this
time, I wish you the best of luck in all of your endeavors.

Sincerely,

Jimmy Lane Mooney
Sheriff Elect

The Orange County Commissioners appointed Sheriff Elect Jimmy Mooney

(Sheriff Mooney) to fill the remaining months of Merritt’s unexpired term. 5 Sheriff

Mooney took office on July 1, 2020. Sheriff Mooney did not appoint twelve of the

former Deputies who had served under Sheriff Merritt to a position in Sheriff

Mooney’s administration, and he offered one of the former Deputies (Dempsey) a

different position 6 from the one she held under Sheriff Merritt. Sheriff Mooney also

promoted several other deputies.

On or about July 6, 2020, the former Deputies and the Association filed

grievances (Separation Grievances) alleging that their nonappointments were

5
A Sheriff serves a four-year term of office, and any vacancy shall “be filled
by the Commissioners Court until the next general election.” Tex. Const. Art. V,
§ 23.
6
Dempsey did not accept the new position and she retired, and on appeal she
asserts the offer of a new position and failure to offer her the same position was a
“disciplinary action.”
4
“disciplinary actions” under the CBA. The Association also sent a letter to Sheriff

Mooney, asserting a grievance on behalf of the Association and complaining that an

undisclosed number of other deputies were promoted or hired into positions that

were subject to the CBA (Promotion Grievance). The former Deputies and the

Association also requested arbitration under the CBA.

The County filed suit against the former Deputies and the Association seeking

temporary injunctive relief to maintain the status quo pending disposition of the

parties’ dispute. The County sought a declaratory judgment asking the trial court to

declare that Sheriff Mooney’s decision not to appoint the former Deputies and his

promotion decisions that were challenged by the Association were not subject to the

CBA. The Deputies and the Association filed an answer.7

The trial court granted the County a temporary injunction. The trial court sent

a notice to the parties of its ruling and then it signed Plaintiff’s Opposed Proposed

Temporary Injunction Order. In its order, the trial court made several findings,

including one that states:

The Defendants’ Separation Grievances and the Promotion/Hiring
Grievance allege that the failure to re-hire or appoint deputies to a
position in the administration of Sherriff Lane Mooney (“Sheriff
Mooney”) was a disciplinary action under the CBA. Sheriff Mooney

7
Defendants Sorge and Payne also filed an Amended Answer, Third-Party
Original Petition against Sheriff Mooney in his individual capacity, and
Counterclaim and Jury Demand. On December 15, 2020, Plaintiff filed “Plaintiff
Orange County Texas’ Opposed Motion for Severance.” The trial court granted the
severance of Sorge’s and Payne’s counterclaims and they are not part of this appeal.
5
 did not terminate the Defendants, and they were never hired by Sheriff
Mooney. Sheriff Mooney had the right by law to hire deputies to serve
in his administration, but he also had the right not to hire deputies
serving under the prior sheriff, Sheriff Keith Merritt (“Sheriff Merritt”).
The Defendants’ terms as deputy sheriffs expired on the date that
Sheriff Merritt retired or June 30, 2020. There is nothing in the CBA
that expressly limits the right of the Sheriff to make employee
decisions. The Sheriff is clearly enabled to hire who he wants.

The defendants did not take an interlocutory appeal of the trial court’s order granting

the temporary injunction.

Thereafter, the County filed a traditional Motion for Summary Judgment

seeking a judgment declaring that the new Sheriff’s appointment decisions were not

“disciplinary actions” governed by the CBA and that arbitration was not required.

The County argued in its Motion for Summary Judgment and Reply in Support of

its Motion that “the CBA does not govern or abrogate a sheriff’s constitutional and

statutory authority to appoint deputies at the commencement of his term in office

[and that] is supported by the summary judgment evidence, Texas case law, and this

Court’s prior ruling.”

The former Deputies and the Association filed responses to the Motion for

Summary Judgment, and the trial court held a hearing on the motion. The trial court

granted the County’s traditional Motion for Summary Judgment and signed a

declaratory judgment that states:

1. Orange County Sheriff Jimmy Lane Mooney’s (“Sheriff
Mooney”) deputy appointments and decisions not to reappoint

6
 deputies whose assignments expired are not “disciplinary actions” as
defined by the Collective Bargaining Agreement (“CBA”).

2. Sheriff Mooney’s deputy appointments and decisions not to
reappoint deputies whose assignments expired are not governed by or
subject to the CBA.

3. Individual Defendant Dempsey’s retirement from the Orange
County Sheriff’s Office is not a “disciplinary action” as defined by the
CBA.

4. Individual Defendant Dempsey’s retirement from the Orange
County Sheriff’s Office is not grievable under the Grievance Process
outlined in Article XX of the CBA.

5. Sheriff Mooney’s decisions not to appoint Individual Defendants
Guidroz, Sorge, Wappler, Johnnie, Lucia, Bryant, Hollier, Frederick,
Payne, Harmon, Felts, and Courtney to positions within his
administration are not “disciplinary actions” as defined by the CBA.

6. Sheriff Mooney’s decisions not to appoint Individual Defendants
Guidroz, Sorge, Wappler, Johnnie, Lucia, Bryant, Hollier, Frederick,
Payne, Harmon, Felts, and Courtney to positions within his
administration are not grievable under the Grievance Process
outlined in Article XX of the CBA.

The former Deputies and the Association filed a timely notice of appeal. In one issue,

the Appellants argue the trial court erred in granting the County’s traditional Motion

for Summary Judgment.8

8
We received an Amicus Curiae brief from the Combined Law Enforcement
Associations of Texas (CLEAT) also arguing that the trial court erred and that the
matter should have been sent to arbitration.
7
 Standard of Review

Declaratory judgments decided by summary judgment are reviewed under the

same standards of review that govern summary judgments generally. See Tex. Civ.

Prac. & Rem. Code Ann. § 37.010. We review summary judgment orders de novo.

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The

party moving for a traditional summary judgment must establish that no genuine

issue of material fact exists, and it is entitled to judgment as a matter of law. Tex. R.

Civ. P. 166a(c); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.

1995). If the moving party produces evidence entitling it to a summary judgment,

the burden shifts to the nonmovant to present evidence that raises a fact issue. Walker

v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In determining whether there is a

disputed fact issue precluding summary judgment, evidence favorable to the non-

movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-

49 (Tex. 1985). We review the summary judgment record in the light most favorable

to the non-movant, “indulging every reasonable inference and resolving any doubts

against the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

Applicable Provisions in the CBA

PREAMBLE

Recitals

The following Agreement by and between Orange County, Texas,
hereinafter referred to as the County, and the Orange County Sheriff’s
8
Office Employees Union; hereinafter referred to as the Union, is
recorded, in accordance with the Fire and Police Employee Relations
Act of the State of Texas (Local Government Code, Chapter 174 et.
seq.). The County and the Union agree that the efficient and
uninterrupted performance of the County Sheriff’s Office function is
the primary purpose of this Agreement, as well as the establishment of
fair and reasonable compensation and working conditions for the
Officers of the County. The agreement has been reached through the
process of collective bargaining with the objective of serving the
aforementioned purposes and with the further objective of fostering
effective cooperation between the County and its Officers. Therefore,
this Agreement is intended to be in all respects in the public interest.

....

ARTICLE III

Definitions

Section 3.1 The terms set forth below shall be defined as follows:

....

O. “Disciplinary Action” includes suspensions without pay, demotions,
terminations, promotional pass overs, failure to rehire or any other
punitive action which results in a loss of pay.

....
ARTICLE IV

Management Rights

Section 4.1 Subject to the terms of the Agreement, the Union recognizes
the prerogative of the Orange County Commissioners’ Court and the
Sheriff to operate and manage their affairs in all respects and in
accordance with their responsibilities. All power and authority which
has not been abridged, delegated, granted or expressly limited by some
written provision of this Agreement is retained by the County and the
Sheriff.

9
....
ARTICLE XIX

Disciplinary Actions

Section 19.1 The purpose of this Article is to establish a procedure for
the fair, expeditious, and orderly adjustment of disciplinary actions
taken by the Sheriff. For purposes of this Article, all disciplinary actions
taken by the Sheriff are final except insofar as exempted hereinafter.
All disciplinary actions shall be based upon whether or not just cause
exists. For purposes of appeal of a disciplinary action, only the affected
member of the bargaining unit may appeal a disciplinary action taken.
This Section is not intended to preempt Government Code 614.

Section 19.2 A “complaint” is an allegation of misconduct made against
an employee, which if true, would constitute a violation of the Sheriff’s
Office policies, procedures or a violation of law.

Section 19.3 Types of Complaints
....

Section 19.4 Routing of Complaints
....

Section 19.5 Investigation of Complaints
....

Section 19.6 Final Notification
....

Section 19.7 Disciplinary Appeal Procedure. The employee may appeal
any “disciplinary action” in the same manner as a grievance in
accordance with Article XX.

10
 ARTICLE XX

GRIEVANCES

Section 20.01 A “grievance” is a disagreement between the parties
regarding the interpretation, application or alleged violation of a
provision of this agreement, or the appeal of a “disciplinary action”. A
grievance may be filed by any individual employee or by the
employee[’]s Union. A disciplinary appeal may only be filed by the
effected employee.
Section 20.02 Process. A grievance as defined in Section 1, or a
disciplinary appeal described in Section 19.8 above 9 shall be handled
as follows:

Step 1. . . .

Step 2. . . .

Step 3. . . .

Step 4. . . . In its notice of intention to submit the dispute for final
resolution, the Grievant and/or the County may request that the dispute
be submitted to arbitration. The parties shall arbitrate consistent with
the rules and procedures established by the American Arbitration
Association. . . .

....

Section 20.03 Arbitration:

....

The conduct of the hearing shall be governed by the standard rules of
the American Arbitration Association. . . .

. . . In the event of a disciplinary appeal, the Arbitrator shall determine
whether there was a factual basis for the imposition of the discipline

9
We note that there is no section 19.8.
11
 and, if applicable, whether there was just cause for the disciplinary
action. . . .

Analysis

This Court has previously examined the law generally governing the

appointment of deputy sheriffs. See Williams v. Bagley, 875 S.W.2d 808 (Tex.

App.—Beaumont 1994, no writ). In Williams v. Bagley, several former Montgomery

County deputies sued Williams, the new Sheriff elect, and Montgomery County after

the new Sheriff notified the deputies that he would not be rehiring them on January

1, 1993, when he took office. Id. at 809-10. The deputies had served under the former

Sheriff who chose not to run for reelection. Id. at 809. The deputies obtained a

temporary restraining order. Id. According to this Court “[u]nder recognized

authorities, the appellees’ employment expired lawfully when the previous sheriff’s

term expired.” Id. at 810. Williams was sworn in on January 1, 1993. Id. Williams

swore in the deputies and the staff that he hired, and he did not rehire the appellees.

Id. The Court stated, “Williams had not terminated the appellees’ employment.” Id.

This Court went on to explain why the employees had no claim against the County

or the Sheriff, and summarized the law as follows,

Elected county officials in the State of Texas undoubtedly and indisputably
possess a broad discretion in the selection of their staff and their employees.
See and compare Barrett v. Thomas, 649 F.2d 1193 (5th Cir. 1981), cert.
denied, 456 U.S. 925, 102 S. Ct. 1969, 72 L. Ed. 2d 440 (1982). The
established law in Texas as well as the firmly followed custom acknowledges
that the deputy sheriffs will serve at the will or the pleasure of the sheriff. The

12
 elected sheriff may fire them. A newly elected sheriff is not under a duty to
rehire deputies.
....
TEX. LOC. GOV’T CODE ANN. § 85.003 (Vernon 1988) entitled
“Deputies” clearly and plainly provides in its subsection (c): “[a]
deputy sheriff serves at the pleasure of the sheriff.” We squarely hold
that if a deputy serves at the pleasure of the sheriff, then the hiring or
the rehiring of a deputy sheriff is at the pleasure of the sheriff. The rule
of law in our state is that deputies have no protected property interest
in their employment. Therefore, there exists no deprivation of
constitutional due process in connection with their suspension. Senegal
v. Jefferson County, 785 F. Supp. 86 (E.D. Tex. 1992), aff’d 1 F.3d
1238 (5th Cir. 1993). Furthermore, a deputy sheriff’s term expires when
the sheriff’s term expires. Samaniego v. Arguelles, 737 S.W.2d 88 (Tex.
App.—El Paso 1987, no writ). Furthermore, the sheriff has the power
to terminate the deputy at will. Id.
The sheriff is elected to protect and serve the public and to discharge
the numerous duties and functions of his office. The sheriff has
responsibilities imposed upon him by law. To assist the sheriff in
implementing his responsibilities and discharging efficiently and
effectively the many duties and responsibilities of his office, deputy
sheriffs serve at the pleasure of the sheriff. The settled rule is that the
sheriff can terminate the deputy’s tenure at will.

Id. at 811-12; see also Cty. of Dallas v. Wiland, 216 S.W.3d 344, 347 & n.7 (Tex.

2007) (citing Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.—Austin 1997, pet.

denied); El Paso Cty. Sheriff’s Deputies’ Ass’n v. Samaniego, 802 S.W.2d 727, 728

(Tex. App.—El Paso 1990, writ denied)).

13
 So, it is well-settled that a deputy sheriff serves at the pleasure of the sheriff,10

and we have previously stated that “a deputy sheriff’s term expires when the sheriff’s

term expires.” Williams, 875 S.W.2d at 812. Furthermore, generally the sheriff has

the power to terminate the deputy’s employment at will. Id.

That said, here, unlike the facts in Williams, Sheriff Merritt retired, and his

term of office did not expire by operation of time. And unlike Williams, Sheriff-

Elect Mooney was appointed to fill the remaining six months of Merritt’s term. Upon

taking office, Sheriff Mooney decided not to keep certain deputies and to promote

or hire others. Further, in the case now before us the parties have a CBA.11

10
See Tex. Loc. Gov’t Code Ann. § 85.003. Section 85.003 provides, in
relevant part:
Sec. 85.003. Deputies.
....
(c) Except as provided by Subsection (f), a deputy serves at the pleasure
of the sheriff. The sheriff may revoke the appointment of a deputy on
the indictment of the deputy for a felony.
....
(f) A deputy who is included in the coverage of a civil service system
created under Chapter 158 may be suspended or removed only for a
violation of a civil service rule adopted under that system.
Tex. Loc. Gov’t Code Ann. § 85.003.
11
Generally, Texas public employees are prohibited from collectively
bargaining with their public employers. Tex. Gov’t Code Ann. § 617.002. The Fire
and Police Employee Relations Act (FPERA), Texas Local Government Code
Chapter 174, creates an exception to the general rule, and expressly allows collective
bargaining by fire fighters and police officers in political subdivisions in which
voters have approved collective bargaining. See Tex. Loc. Gov’t Code Ann.
§§ 174.023, 174.051. A FPERA collective bargaining agreement requiring the
arbitration of grievances “is binding and enforceable against a public employer, an
association, and a fire fighter or police officer covered by the agreement.” Id.
14
 Appellants contend Sheriff Mooney’s decisions regarding the former

Deputies are governed and controlled by the CBA. Appellants argue the Sheriff’s

decisions fall within the definition of a “disciplinary action” expressly addressed in

the CBA and would be subject to the grievance procedures in the agreement, which

include the right to arbitration. In contrast, Appellee argues Sheriff Mooney’s

decisions are not controlled by the CBA, his decisions were not “disciplinary

actions” as defined in the CBA, and the Appellants are not entitled to invoke the

arbitration provision.

A party seeking to compel arbitration must establish that (1) a valid arbitration

agreement exists and (2) the claims at issue are within the scope of the agreement.

See In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006) (orig.

proceeding); In re Igloo Prods. Corp., 238 S.W.3d 574, 577 (Tex. App.—Houston

[14th Dist.] 2007, orig. proceeding [mand. denied]). Where an agreement is

unambiguous, the court will give effect to the intention of the parties as expressed

in the writing. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515,

518 (Tex. 1968).

§ 174.109. The definition of a “police officer” includes deputy sheriffs. See
Comm’rs’ Court of El Paso Cty. v. El Paso Cty. Sheriff’s Deputies Ass’n, 620
S.W.2d 900, 902 (Tex. App.—El Paso 1981, writ ref’d n.r.e.); see also Tex. Loc.
Gov’t Code Ann. § 174.003(3). No party has claimed in the appeal that the FPERA
has not been adopted by the County’s governing body in accordance with the terms
of FPERA. See Tex. Loc. Gov’t Code Ann. §§ 174.051-.052.

15
 Here, the parties do not challenge the validity of the CBA or the arbitration

provision in the CBA. And none of the parties contend that the CBA is ambiguous.12

The only disputed issue between the parties is whether the claims at issue are

governed by the CBA.

A grievance “is arbitrable ‘unless it may be said with positive assurance that

the arbitration clause is not susceptible of an interpretation that covers the asserted

dispute.’” Port Arthur Police Ass’n v. City of Port Arthur, No. 09-09-00242-CV,

2010 Tex. App. LEXIS 4124, at *5 (Tex. App.—Beaumont May 27, 2010, no pet.)

(mem. op.) (quoting Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582-

83 (1960)); see also Orange Ass’n of Fire Fighters v. City of Orange, No. 14-13-

00061-CV, 2014 Tex. App. LEXIS 2575, at *7 (Tex. App.—Houston [14th Dist.]

March 6, 2014, no pet.) (mem. op.) (“Any doubts as to whether the Association’s

grievance against the [employer] falls within the scope of the grievance procedures

of the Agreement must be resolved in favor of arbitration.”).

On appeal, Appellants argue that the trial court erred in granting the County’s

traditional Motion for Summary Judgment because the County was bound by

contract to arbitrate the disputes. According to Appellants, summary judgment was

improper because an agreement to arbitrate the issues in question existed between

12
Even if the parties disagree on the meaning of the contract, a disagreement
about an agreement’s meaning is not sufficient to make the contract ambiguous. See
Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006).
16
the parties and the County is bound to arbitrate the dispute under the CBA because

the “failure to rehire” language in the CBA “encompassed this exact scenario[.]”

Appellants also contend that the County’s argument that the former Deputies’ terms

expired upon Sheriff Merritt’s retirement is unsupported by the Constitution.

The County argues that the trial court properly granted the County’s Motion

for Summary Judgment because, as a matter of law, the CBA does not govern the

former Deputies’ grievances and it does not require arbitration. According to the

County, the former Deputies’ terms ended upon Sheriff Merritt’s retirement. The

County also argues that Sheriff Mooney was not required to appoint the former

Deputies because sheriffs have the constitutional and statutory authority to appoint

or deputize deputies of their own choosing at the commencement of their

administration. The County argues that the CBA does not abrogate or change that

right because Sheriff Mooney’s nonappointment of the former Deputies was not a

“disciplinary action” as defined by the CBA. The County further contends that

Sheriff Mooney did not “terminate” the former Deputies nor “fail to rehire” them,

because he never appointed or hired them to begin with.

Section 3.1(O) of Article III (Definitions) of the CBA in this case defines the

term “Disciplinary Action” to include “suspensions without pay, demotions,

terminations, promotional pass overs, failure to rehire or any other punitive action

which results in a loss of pay.” Section 20.01 of Article XX (Grievances) of the CBA

17
defines a “grievance” as “a disagreement between the parties regarding the

interpretation, application or alleged violation of a provision of this agreement, or

the appeal of a ‘disciplinary action.’”

The County argues the CBA did not abrogate or change the right of Sheriff

Mooney by constitution and statute “to appoint or deputize deputies” of his own

choosing at the commencement of his administration. The County contends that

Sheriff Mooney did not “terminate” the former Deputies nor “fail to rehire” them,

because he never appointed or hired them to begin with. Both Appellants and

Appellee cite to El Paso County Sheriff’s Deputies’ Ass’n v. Samaniego in support

of their respective positions. See 802 S.W.2d 727. In Samaniego, three deputy

sheriffs were not “redeputized” at the beginning of the newly elected sheriff’s term.

Id. at 728. The El Paso Sheriff’s Deputies’ Association filed suit to compel Sheriff

Samaniego to submit the matter to arbitration pursuant to a collective bargaining

agreement between the deputies’ association and sheriff. Id. In a bench trial, the trial

court denied the requested relief and rendered a take nothing judgment in favor of

the sheriff. Id. The El Paso County Sheriff’s Deputies’ Association appealed. Id. The

collective bargaining agreement provided grievance procedures in case of

termination of a deputy by the sheriff, and neither party argued that the language of

the contract was ambiguous. Id. The agreement provided grievance procedures for

18
terminations and also for “demotions, reprimands and suspensions[,]” all of which

were included under the provision entitled “Discipline.” Id.

On appeal, the El Paso Court of Appeals recognized the sheriff’s power under

section 85.003 of the Government Code and noted that the statute has been

interpreted to mean that a sheriff can terminate a deputy’s tenure at will. Id. (citing

Tex. Gov’t Code Ann. § 85.003; Murray v. Harris, 112 S.W.2d 1091 (Tex. App.—

Amarillo 1938, writ dism’d)). However, the Court concluded that the statutory right

to terminate was abrogated by the parties’ collective bargaining agreement. See id.

The El Paso Court of Appeals also concluded that a deputy sheriff’s term expires

when the sheriff’s term expires. Id. (citing Cty. of El Paso v. Hill, 754 S.W.2d 267

(Tex. App.—El Paso 1988, writ denied); Samaniego, 737 S.W.2d 88; Tarrant Cty.

v. Smith, 81 S.W.2d 537 (Tex. App.—Fort Worth 1935, writ ref’d); Trinkle v. State,

127 S.W. 1060 (Tex. Crim. App. 1910)). The El Paso Court of Appeals explained

that the word “expire” “connotes the coming to a conclusion or end or to have run

its course.” Id. The El Paso Court of Appeals construed the word “terminate[,]”

however, to carry “a more abrupt inference[]” that “suggests positive interference[,]”

and the Court explained that “[t]he expiration of a term is brought about by the

passing of time alone without any action on the part of the sheriff.” Id. at 728-29.

The El Paso Court of Appeals determined that (1) the collective bargaining

agreement did not contain language referring to the expiration of term; (2) the

19
reference to termination was in context with demotions, reprimands and suspensions

under the section entitled “Discipline[;]” (3) there were no words in the collective

bargaining agreement that expressly referred to the reappointment of a deputy; and

(4) despite the association’s argument otherwise, the primary purpose of the

collective bargaining agreement as stated in the agreement’s preamble (the efficient

and uninterrupted performance of the county law enforcement) was not frustrated by

the sheriff’s failure to re-deputize the deputies. Id. In affirming the trial court, the El

Paso Court of Appeals concluded that there was “no intention expressed from the

four corners of the entire contract in any manner to govern a sheriff’s appointment

of deputies to a new term of office[]” and that the Court could not “by implication

import something into a written instrument merely because it might seem that the

agreement may appear to operate unjustly.” Id. at 729.

Appellants argue that El Paso County Sheriff’s Deputies’ Ass’n v. Samaniego

supports their contention that the statutory right of a sheriff to terminate deputies can

be abrogated by a collective bargaining agreement, and further that the collective

bargaining agreement in the present case, unlike the agreement in El Paso County

Sheriff’s Deputies’ Ass’n v. Samaniego, expressly includes “failure to rehire” as a

disciplinary action within the four corners of the contract.

In contrast, the Appellee argues that El Paso County Sheriff’s Deputies’ Ass’n

v. Samaniego “is factually identical to the matter here[]” and “makes [] clear” that

20
Texas courts have recognized that a newly elected sheriff’s decision to appoint or

not to appoint a prior sheriff’s deputy is not a “disciplinary action,” nor a “failure to

rehire,” nor any other punitive action, and, therefore, it is not an adverse employment

action typically subject to a collective bargaining agreement. Appellee also contends

that here, “just as in Samaniego,” the former Deputies “were not terminated; rather,

their appointment term[] merely expired when Sheriff Merritt’s term ended [with the

exception of Dempsey, who retired before her appointment term expired].” Citing

to Samaniego, Appellee argues that “[t]he expiration of the [former Deputies’]

appointments was not caused by any disciplinary or punitive actions from Sheriff

Mooney, but by the former Sheriff’s retirement (i.e. a passage of time).”

Here, the definition of “disciplinary action” in the CBA is different than the

language in Samaniego. Section 3.1(O) of Article III (Definitions) of the CBA in

this case defines the term “Disciplinary Action” in the agreement to include

“suspensions without pay, demotions, terminations, promotional pass overs, failure

to rehire or any other punitive action which results in a loss of pay.” Section 20.01

of Article XX (Grievances) of the CBA defines a “grievance” as “a disagreement

between the parties regarding the interpretation, application or alleged violation of a

provision of this agreement, or the appeal of a ‘disciplinary action.’”

The CBA at issue in Samaniego did not include “failure to rehire” language

within the section of the agreement addressing disciplinary actions and it did not

21
include a definition for a “disciplinary action.” Here, the arbitration clause of the

CBA provides that “[i]n the event of a disciplinary appeal, the Arbitrator shall

determine whether there was a factual basis for the imposition of the discipline and,

if applicable, whether there was just cause for the disciplinary action.” The CBA’s

definition of “disciplinary action” includes the “failure to rehire or any other punitive

action which results in a loss of pay.”

Sheriff Elect Mooney did not originally hire any of the deputies in question,

but he did decide that the deputies would not continue to serve as deputies once

Sheriff Elect Mooney was appointed to fill the remainder of Sherriff Merritt’s

unexpired term. The deputies and the Association contend that the decision of

Sheriff Mooney was a “disciplinary action” as defined under the CBA because that

decision was a “failure to rehire.”

Whether parties have agreed to arbitrate a dispute is a “gateway matter

ordinarily committed to the trial court[,]” but parties can “agree to arbitrate

arbitrability.” Jody James Farms, JV v. Altman Grp., Inc., 547 S.W.3d 624, 631

(Tex. 2018); see also RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 120 (Tex.

2018) (“[A] contractual agreement to submit the arbitrability question to an

arbitrator is valid and must be treated like any other arbitral agreement.”). “A

presumption favors adjudication of arbitrability by the courts absent clear and

unmistakable evidence of the parties’ intent to submit that matter to arbitration.”

22
Jody James Farms, JV, 547 S.W.3d at 631. Threshold questions of arbitrability that

are typically ruled upon by trial courts—but may be contractually delegated to the

arbitrator—include the validity and enforceability of the arbitration agreement and

whether a claim or dispute is encompassed within the agreement. See Rent-A-Center

Tex., L.P. v. Bell, No. 09-16-00085-CV, 2016 Tex. App. LEXIS 9358, at **12-13

(Tex. App.—Beaumont Aug. 25, 2016, no pet.) (mem. op.) (citing Schlumberger

Tech. Corp. v. Baker Hughes, Inc., 355 SW.3d 791, 802-03 (Tex. App.—Houston

[1st Dist.] 2011, no pet.); Saxa Inc. v. DFD Architecture Inc., 312 S.W.3d 224, 229

(Tex. App.—Dallas 2010, pet. denied); Haddock v. Quinn, 287 S.W.3d 158, 172

(Tex. App.—Forth Worth 2009, pet. denied)); see also Berry Y&V Fabricators, LLC

v. Bambace, 604 S.W.3d 482, 486 (Tex. App.—Houston [14th Dist.] 2020, no pet.)

(parties “may delegate to the arbitrator questions concerning validity or

enforceability of an arbitration agreement, and we enforce such clauses when the

delegation is clear and unmistakable[]”). Because arbitration is a matter of contract,

“that which the parties agree must be arbitrated shall be arbitrated.” Jody James

Farms, JV, 547 S.W.3d at 631. Arbitration clauses providing that the arbitrator will

decide gateway questions such as arbitrability of the dispute “are an established

feature of arbitration law.” RSL Funding, LLC, 569 S.W.3d at 120; Taylor Morrison

of Tex., Inc. v. Skufca, 650 S.W.3d 660, 677 (Tex. App.—Houston [1st Dist.] 2021,

no pet.) (stating that if agreement includes delegation clause, trial court must compel

23
arbitration so arbitrator may decide gateway issues parties have agreed to

arbitrate).13 If the agreement clearly and unmistakably demonstrates that the parties

intended to confer on the arbitrator the power to determine what disputes are

arbitrable, the trial court lacks the power to decide that issue. Oxbow Calcining LLC

v. Port Arthur Steam Energy, L.P., Nos. 09-18-00359-CV & 09-18-00392-CV, 2018

Tex. App. LEXIS 10271, at **25-26 (Tex. App.—Beaumont Dec. 13, 2018, no pet.)

(mem. op.) (citing T.W. Odom Mgmt. Servs., Ltd. v. Williford, No. 09-16-00095,

2016 Tex. App. LEXIS 9353, at *7 (Tex. App.—Beaumont Aug. 25, 2016, no pet.)

(mem. op.)). “Thus, when an arbitration agreement clearly and unmistakably

demonstrates the parties’ intent to confer on the arbitrator the power to determine

substantive arbitrability, questions regarding gateway issues that are normally

decided by the court will be submitted to the arbitrator.” Bell, 2016 Tex. App. LEXIS

9358, at *10 (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943

(1995)); Oxbow Calcining LLC, 2018 Tex. App. LEXIS 10271, at **25-29.

13
Parties may contractually provide that the arbitrator will resolve questions
of arbitrability by using “express language” in the contract. Darling Homes of Tex.,
LLC v. Khoury, No. 01-20-00395-CV, 2021 Tex. App. LEXIS 3756, at *21 (Tex.
App.—Houston [1st Dist.] May 13, 2021, no pet.) (mem. op.). Parties may also
delegate questions of arbitrability by “expressly adopting rules” that unmistakably
delegate such issues to the arbitrator. Id.; Weitzel v. Coon, No. 01-19-00015-CV,
2019 Tex. App. LEXIS 6495, at *6 (Tex. App.—Houston [1st Dist.] July 30, 2019,
no pet.) (mem. op.) (“The express incorporation of rules that empower the arbitrator
to determine arbitrability[]” is evidence of “the parties’ intent to allow the arbitrator
to decide such issues.”); Schlumberger Tech. Corp. v. Baker Hughes Inc., 355
S.W.3d 791, 802 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (same).
24
 One method by which parties can contractually provide that the arbitrator will

resolve the questions of arbitrability is by adopting rules that provide and empower

the arbitrator to determine arbitrability. See Weitzel v. Coon, No. 01-19-00015-CV,

2019 Tex. App. LEXIS 6495, at *6 (Tex. App.—Houston [1st Dist.] July 30, 2019,

no pet.) (mem. op.). “The express incorporation of rules that empower the arbitrator

to determine arbitrability, such as the AAA Commercial Arbitration Rules, is clear

and unmistakable evidence of the parties’ intent to allow the arbitrator to decide such

issues.” Id.; see also Gilbert v. Rain & Hail Ins., No. 02-16-00277-CV, 2017 Tex.

App. LEXIS 1542, at **7-8 (Tex. App.—Fort Worth Feb. 23, 2017, pet. denied)

(mem. op.) (concluding arbitrator properly determined arbitrability because policy

incorporated AAA’s commercial arbitration rules); Schlumberger Tech. Corp., 355

S.W.3d at 802 (“There are no provisions in the Resolution or Procedure Agreements

that negate the arbitrators’ power under AAA Rule 7(a) to determine the arbitrability

of a defense raised in arbitration. Thus we conclude that this issue of contract

interpretation was a question for the AAA panel, not the trial court and not this

court.”); Rio Grande Xarin II, Ltd. v. Wolverine Robstown, L.P., Nos. 13-10-00115-

CV & 13-10-00116-CV, 2010 Tex. App. LEXIS 5189, at **21-23 (Tex. App.—

Corpus Christi July 6, 2010, pet. dism’d) (mem. op.) (arbitration clause in earnest

money contract stating that arbitration would be conducted “in accordance with the

Commercial Arbitration Rules of the American Arbitration Association” clearly and

25
unmistakably showed intent that arbitrator determine arbitrability); Saxa, 312

S.W.3d at 229-31 (broad arbitration clause that specifically incorporated AAA rules

served as clear and unmistakable evidence of parties’ intent to delegate question of

arbitrability to arbitrator); Burlington Res. Oil & Gas Co., LP v. San Juan Basin

Royalty Trust, 249 S.W.3d 34, 40-41 (Tex. App.—Houston [1st Dist.] 2007, pet.

denied) (“We are also mindful that, in certain circumstances, the incorporation of

AAA rules may constitute clear and unmistakable evidence of an intent to allow an

arbitrator to decide issues of arbitrability.”); Haddock, 287 S.W.3d at 172 (“The

majority of courts have concluded that express incorporation of rules empowering

the arbitrator to decide arbitrability (including ruling upon his or her own

jurisdiction) clearly and unmistakably evidences the parties’ intent to delegate issues

of arbitrability to the arbitrator.”).

Here, the express language within the CBA in sections 20.02 and 20.03 states

“[t]he parties shall arbitrate consistent with the rules and procedures established by

the American Arbitration Association[,]” and “[t]he conduct of the hearing shall be

governed by the standard rules of the American Arbitration Association.” The

American Arbitration Association [AAA] Labor Arbitration Rules provide “[t]he

parties shall be deemed to have made these rules a part of their arbitration agreement

whenever, in a collective bargaining agreement or submission, they have provided

26
for arbitration by the American Arbitration Association . . . or under its rules.”14

Under the AAA Labor Arbitration Rules, “[t]he arbitrator shall have the power to

rule on his or her own jurisdiction, including any objections with respect to the

existence, scope, or validity of the arbitration agreement.”15 The parties’ adoption of

the AAA rules in the CBA is “clear and unmistakable evidence” that they intended

to allow the arbitrator to decide whether the grievances are governed by the CBA.

See Weitzel, 2019 Tex. App. LEXIS 6495, at *6; Oxbow Calcining LLC, 2018 Tex.

App. LEXIS 10271, at **25-29; Schlumberger Tech. Corp., 355 S.W.3d at 802. So,

the arbitrator should decide if Sheriff Mooney’s decisions are governed by the CBA

as “disciplinary actions.” See id. We conclude that the matter should be submitted

to arbitration. Port Arthur Police Ass’n, 2010 Tex. App. LEXIS 4124, at *5 (citing

Steelworkers, 363 U.S. at 582-83); see also Orange Ass’n of Fire Fighters, 2014

Tex. App. LEXIS 2575, at *7. On the record before us, an arbitrator may or may not

conclude that the failure to appoint or keep the former Deputies and the offer of a

different position to Dempsey were “disciplinary actions” covered by the CBA or

that the promotions of other deputies to fill those positions were or were not

14
American Arbitration Association, Labor Arbitration Rules ¶1 (rules
amended and accepted July 1, 2013), available at
https://www.adr.org/sites/default/files/Labor_Arbitration_Rules_3.pdf.
15
See id. at ¶3(a).
27
governed by the CBA. See Orange Ass’n of Fire Fighters, 2014 Tex. App. LEXIS

2575, at **7-8.

We conclude this matter should be resolved through the arbitration process

pursuant to the arbitration agreement. 16 Accordingly, the County is not entitled to

judgment as a matter of law. We sustain issue one. We reverse the trial court’s

summary judgment in favor of the County and remand the cause to the trial court for

further proceedings consistent with this opinion.

REVERSED AND REMANDED.

_________________________
LEANNE JOHNSON
Justice

Submitted on July 26, 2022
Opinion Delivered March 9, 2023

Before Horton, Johnson and Wright, JJ.

16
Because we conclude the alleged grievances should be resolved through the
arbitration process, we do not address the merits of the parties’ other arguments.
Rather, the County and the Appellants will have the opportunity to make arguments
to the arbitrator who will decide whether Sheriff Mooney’s decisions were
“disciplinary action[s]” under the CBA. See Tex. R. App. P. 47.1.
28