Marva Huckabee v. Texas Department of Mental Health and Mental Retardation

4, S.W.2d , (Tex. 19)

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-95-00396-CV

Marva Huckabee, Appellant

v.

Texas Department of Mental Health and Mental Retardation, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 94-05083, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

PER CURIAM

Marva Huckabee was fired from her former position as nursing service coordinator at the

Travis State School, a facility of the Texas Department of Mental Health and Mental Retardation ("the

Department"). Huckabee sued the Department for relief, including reinstatement. Among other allegations,

she claimed that the Department had taken her "property" without due process of law. U.S. Const.

amends. V, XIV; Tex. Const. art. 1, § 19. The Department filed a motion to dismiss the cause for lack

of jurisdiction on the basis of sovereign immunity. The trial court sustained the motion and rendered

judgment dismissing the suit. We will affirm in part and reverse and remand in part the trial-court judgment.

STANDARD OF REVIEW

We are bound to accept factual allegations in the plaintiff's petition as true when reviewing

a trial court's decision to dismiss on the pleadings. Alford v. City of Dallas , 738 S.W.2d 312, 314 (Tex.

App.--Dallas 1987, no writ); Jenkins v. State , 570 S.W.2d 175, 177 (Tex. Civ. App.--Houston [14th

Dist.] 1978, no writ); see also Brazosport Savings & Loan Ass'n v. American Savings & Loan Ass'n ,

342 S.W.2d 747, 752 (Tex. 1961). In examining whether a dismissal for want of jurisdiction is

appropriate, we must "construe the pleadings in favor of the plaintiff and look to the pleader's intent."

Texas Ass'n of Business v. Texas Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993). We must reverse

the dismissal unless the petition affirmatively demonstrates that no cause of action exists or that the plaintiff's

recovery is barred. See Dorchester Master Ltd. Partnership v. Dorchester Hugoton, Ltd. , 914 S.W.2d

696, 703 (Tex. App.--Corpus Christi 1996, writ granted w.r.m.); Ramirez , 900 S.W.2d at 906.

ANALYSIS

Huckabee's third amended original petition alleged that (1) the termination deprived her

of her property right and interest in continued employment, created by agreement between the parties and

"just cause" provisions of the Department's regulations; (2) the Department did not comply with pre-termination procedural processes required by its rules; (3) the Department did not have "just cause" to

terminate her; (4) the termination was motivated by her alignment with the plaintiff in a separate suit against

the Department, thus violating her right to equal protection of the law and freedom of association; and (5)

the termination was motivated by her refusal to perform acts which would have violated the Nursing

Practice Act.

Huckabee brought a section 1983 action, sought a declaratory judgment that the

termination was void because unconstitutional, and requested reinstatement and back pay. The trial court's

order dismissed all claims.

Section 1983

By point of error one, Huckabee complains that the trial court erroneously dismissed her

section 1983 cause of action. Title 42 U.S.C.A. § 1983 (West 1994). Section 1983 creates a cause of

action against a person who, under color of state law, deprives the plaintiff of rights, privileges or immunities

secured by the Constitution of the United States. To proceed under section 1983, Huckabee must show

that the Department is a "person" under that statute. The United States Supreme Court has held a state

and its agencies are not persons for purposes of section 1983. Will v. Michigan Dep't of State Police ,

491 U.S. 58, 71 (1989); Howlett v. Rose , 496 U.S. 356, 365 (1990); see also State v. Bigger , 848

S.W.2d 291, 295 (Tex. App.--Austin), affirmed , 873 S.W.2d 11 (Tex. 1994); Lopez v. Public Util.

Comm'n , 816 S.W.2d 776, 781-82 (Tex. App.--Austin 1991, writ denied).

Huckabee pleaded that the Department was a "political subdivision," which has been held

to be a "person" subject to suit under section 1983. See, e.g., Mitchell v. Amarillo Hosp. Dist. , 855

S.W.2d 857, 865 (Tex. App.--Amarillo 1993, writ denied). Huckabee claims that the trial court should

have accepted as true her conclusion that the Department was a political subdivision rather than a state

agency. We disagree.

Although the trial court should have accepted Huckabee's factual allegations as true, the

determination whether a statute applies to a certain person is a question of law rather than fact. A court

is not obliged to accept as true an incorrect conclusion of law.

A political subdivision differs from an agency in several ways. A political subdivision has

jurisdiction over a discrete portion of the state, is governed by locally elected officials, or persons appointed

by locally-elected officials, and has the power to assess and collect taxes. Guaranty Petroleum Corp.

v. Armstong , 609 S.W.2d 529, 531 (Tex. 1980). A state agency, by contrast, has state-wide jurisdiction,

is governed by either state-wide elected officials or officials appointed by state officials, and has no power

to assess and collect taxes. Id.

The Department is responsible for administering and coordinating mental health and mental

retardation services at the state and local levels. Tex. Health & Safety Code Ann. § 531.001 (West 1992

& Supp. 1996). It is governed by a board appointed by the governor with the advice and consent of the

senate. Id. § 532.003. Its board is the state's mental health and mental retardation authority and is

responsible for the planning, policy development, and resource development and allocation for and

oversight of mental health and mental retardation services in the state. Id. § 531.01(h). Nothing indicates

that the Department is authorized to assess taxes. We conclude that the Department is not a "political

subdivision" separate from the state and is therefore protected by the state's immunity from section 1983

actions. We overrule point of error one.

Declaratory judgment and equitable relief

By point of error two, Huckabee complains that the trial court erred in dismissing her

declaratory judgment claim. The declaratory judgment act is a limited waiver of sovereign immunity. Tex.

Civ. Prac. & Rem. Code Ann. § 37.004 (West 1986). Section 37.004 provides as follows:

A person interested under a deed, will, written contract, or other writings constituting a

contract or whose rights, status or other legal relations are affected by a statute, municipal

ordinance, contract, or franchise may have determined any question of construction or

validity arising under the instrument, statute, ordinance, contract, or franchise and obtain

a declaration of rights, status, or other legal relations thereunder.

Id. Huckabee argues that she is entitled to a declaratory judgment because the Department breached an

employment contract. Even assuming the existence of a contract, sovereign immunity protects the state

from contract claims. See Texas Southern Univ. v. Federal Sign , 889 S.W.2d 509, 511 (Tex.

App.--Houston [14th Dist.] 1994, writ granted); Green Int'l, Inc. v. State , 877 S.W.2d 428, 434-36

(Tex. App.--Austin 1994, writ dism'd); Courtney , 806 S.W.2d at 283-85. One may not characterize

a contract dispute as a declaratory judgment claim to avoid sovereign immunity. W. D. Haden Co. v.

Dodgen , 306 S.W.2d 838, 842-43 (Tex. 1958).

Neither is Huckabee alleging that her rights, status or other legal relations were affected

by a statute or ordinance. Rather, her claims are based on conduct that she claims deprived her of rights.

The declaratory judgment act waives sovereign immunity from suits complaining of acts committed under

a statute or regulation. See Texas Educ. Agency v. Leeper , 893 S.W.2d 432, 446 (Tex. 1994) (suit to

enjoin state from enforcing Texas Education Agency's interpretation of private school exemption); Majestic

Indus., Inc. v. St. Clair , 537 S.W.2d 297, 300 (Tex. Civ. App.--Austin 1976, writ ref'd n.r.e.) (suit to

enjoin enforcement of Mobile Homes Standard Act). Huckabee, however, is not challenging acts

committed under a statute or regulation.

Nevertheless, Huckabee's complaint, though unartfully worded and somewhat confused

about the concept of "equitable relief," also states that she has a right to a determination whether public officials acted wrongfully and to equitable relief based on her allegations that

the Department interfered with her constitutional right to freedom of association and to continued

employment. A close reading of her argument and the case she relies on, City of Beaumont v. Bouillion ,

896 S.W.2d 143, 150 (Tex. 1995), shows that what she seeks is an adjudication whether the Department's

acts were unconstitutional and equitable relief in the form of reinstatement.

The state is not liable for damages for due process deprivations. See Alcorn v. Vaksman ,

877 S.W.2d 390, 403-404 (Tex. App.--Houston [1st Dist.] 1994, writ denied); see also Bouillion , 896

S.W.2d at 149 (state not liable for damages for violation of free speech and assembly clauses of Texas

Constitution). However, a plaintiff whose constitutional rights have been violated may receive equitable

relief. Bouillion , 896 S.W.2d at 149 ; Alcorn , 877 S.W.2d at 404 ; Courtney , 806 S.W.2d at 283-85;

Jones v. Memorial Hosp. Sys. , 677 S.W.2d 221, 225-26 (Tex. App.--Houston [1st Dist.] 1984, no

writ); Martine v. Board of Regents , 578 S.W.2d 465, 472 (Tex. Civ. App.--Tyler 1979, no writ); see

also University of Tex. Medical Sch. v. Tham , 901 S.W.2d 926, 933-34 (Tex. 1995). Construing the

pleading in her favor, as we must, we conclude that Huckabee's claim for equitable relief is not barred if

she has stated facts that, if proven, show that she possessed a property interest in her job.

The issue is whether Huckabee's allegation she could only be fired for "just cause" is

sufficient to create a property interest. The United States Supreme Court defined a constitutionally

protected property interest in Logan v. Zimmerman Brush Co. as "an individual entitlement grounded in

state law, which cannot be removed except `for cause.'" Logan v. Zimmerman Brush Co ., 455 U.S.

422, 430 (1982). In Logan , the Supreme Court held that a statute requiring a commission to convene a

fact finding conference to investigate an unlawful termination constituted a substantive limit on the state's discretion creating a property interest. Likewise,

in Grounds v. Tolar Independent School District , the Texas Supreme Court held that a statutory

requirement of preestablished reasons for nonrenewal of a teacher's contract constitutes a substantive limit

on the state's discretion that creates a property interest. Grounds v. Tolar Indep. Sch. Dist. , 856 S.W.2d

417, 418 (Tex. 1993); see also Cain v. Larson , 879 F.2d 1424, 1426 (7th Cir.), cert. denied , 493 U.S.

992 (1989). We hold that Huckabee's petition alleged a constitutionally protected property interest right

because it states that she could only be fired for "just cause."

The Department, in reliance on Bagg v. University of Tex. Medical Branch , 726 S.W.2d

582 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.), and Harris County v. Going , 896 S.W.2d

305, 309 (Tex. App.--Houston [1st Dist.] 1995, writ denied), argues that Huckabee cannot sue the

agency directly for interfering with a property interest. We disagree.

Sovereign immunity does not prevent the assertion of a claim alleging that the state deprived

the plaintiff of property without due process of law. See, e.g., Stone v. Texas Liquor Control Bd. , 417

S.W.2d 385, 385-86 (Tex. 1967); Chemical Bank & Trust Co. v. Falkner , 369 S.W.2d 427, 433 (Tex.

1963); Brazosport Sav. & Loan Ass'n , 342 S.W.2d 747, 750-52 (Tex. 1961); City of Amarillo v.

Hancock , 239 S.W.2d 788, 791-92 (Tex. 1951); Martine , 578 S.W.2d at 470 . The Bill of Rights

protects a citizen from the state's excesses. Just as the state may not assert sovereign immunity to avoid

a claim that property was taken without compensation, Steele v. City of Houston , 603 S.W.2d 786, 791

(Tex. 1980), the state may not assert sovereign immunity to avoid a claim that it took property without due

process of law. To allow the state to interpose a defense of sovereign immunity would render due process of law

meaningless.

We reject the reasoning in Bagg , 726 S.W.2d at 582 , in which the court of appeals held

on very similar facts that the terminated plaintiff, who may have been entitled to the equitable relief of

reinstatement, could not directly sue his former employer, a state university, for such relief. See also

Going , 896 S.W.2d at 309 (county possessed sovereign immunity from claim for equitable relief by

employee who was allegedly fired because he exercised his first amendment rights). Bagg and Going are

inconsistent with Texas Supreme Court cases holding that sovereign immunity does not bar a cause alleging

that the state had deprived the plaintiff of a property right. See, e.g., Stone , 417 S.W.2d at 385-86 ;

Chemical Bank , 369 S.W.2d at 433 ; Brazosport Sav. & Loan Ass'n , 342 S.W.2d at 750-52 ; Hancock ,

239 S.W.2d at 788 .

Consistent with that line of supreme court cases, two courts of appeals have held that a

discharged employee having a property interest in his job could sue a state university for equitable relief.

Courtney , 806 S.W.2d at 283-85 (lecturer whose position with state university was terminated could sue

university to protect property interest in continued employment); Martine , 578 S.W.2d at 470 (terminated

employee who had property interest in his job could sue board); see also Tham , 901 S.W.2d at 933-34

(upholding injunction prohibiting university from interfering with student's liberty interest); Public Util.

Comm'n of Texas v. City of Austin , 728 S.W.2d 907 (Tex. App.--Austin 1987, writ ref'd n.r.e.)

(immunity did not preclude suit alleging commission acted beyond its authority). We follow Martine and

Courtney .

The Department also relies on Dillard v. Austin Independent School District , 806

S.W.2d 589 (Tex. App.--Austin 1991, writ denied), to support its claim that Huckabee may not sue the

agency directly. Dillard is distinguishable because the plaintiff in that case sought monetary compensation

for an alleged intentional tort rather than equitable relief for the unconstitutional deprivation of a property

interest. A governmental unit is not liable for the intentional torts of its employees. Fireman's Ins. Co. v.

Board of Regents , 909 S.W.2d 540 (Tex. App.--Austin 1995, writ requested). (1)

We sustain point of error two with regard to the claim for equitable relief to remedy the

state's interference with a protected property right and overrule it with regard to the declaratory judgment

claim.

CONCLUSION

We affirm the trial-court judgment with regard to the section 1983 and the declaratory

judgment claims. We reverse and remand the remaining issues to the trial court for proceedings consistent

with this opinion.

Before Justices Powers, Aboussie and Kidd

Affirmed in Part; Reversed and Remanded in Part

Filed: January 30, 1997

Do Not Publish

1. We also distinguish Turner v. Texas Dep't of Mental Health & Mental Retardation , 920

S.W.2d 415 (Tex. App.--Austin 1996, writ denied), which involved a suit brought after the plaintiff

was allegedly wrongfully detained for mental illness. Turner did not involve a protected property

interest.

ess of law. See, e.g., Stone v. Texas Liquor Control Bd. , 417

S.W.2d 385, 385-86 (Tex. 1967); Chemical Bank & Trust Co. v. Falkner , 369 S.W.2d 427, 433 (Tex.

1963); Brazosport Sav. & Loan Ass'n , 342 S.W.2d 747, 750-52 (Tex. 1961); City of Amarillo v.

Hancock , 239 S.W.2d 788, 791-92 (Tex. 1951); Martine , 578 S.W.2d at 470 . The Bill of Rights

protects a citizen from the state's excesses. Just as the state may not assert sovereign immunity to avoid

a claim that property was taken without compensation, Steele v. City of Houston , 603 S.W.2d 786, 791

(Tex. 1980), the state may not assert sovereign immunity to avoid a claim that it took property without due

process of law. To allow the state to interpose a defense of sovereign immunity would render due process of law

meaningless.

We reject the reasoning in Bagg , 726 S.W.2d at 582 , in which the court of appeals held

on very similar facts that the terminated plaintiff, who may have been entitled to the equitable relief of

reinstatement, could not directly sue his former employer, a state university, for such relief. See also

Going , 896 S.W.2d at 309 (county possessed sovereign immunity from claim for equitable relief by

employee who was allegedly fired because he exercised his first amendment rights). Bagg and Going are

inconsistent with Texas Supreme Court cases holding that sovereign immunity does not bar a cause alleging

that the state had deprived the plaintiff of a property right. See, e.g., Stone , 417 S.W.2d at 385-86 ;

Chemical Bank , 369 S.W.2d at 433 ; Brazosport Sav. & Loan Ass'n , 342 S.W.2d at 750-52 ; Hancock ,

239 S.W.2d at 788 .

Consistent with that line of supreme court cases, two courts of appeals have held that a

discharged employee having a property interest in his job could sue a state university for equitable relief.

Courtney , 806 S.W.2d at 283-85 (lecturer whose position with state university was terminated could sue

university to protect property interest in continued employment); Martine , 578 S.W.2d at 470 (terminated

employee who had property interest in his job could sue board); see also Tham , 901 S.W.2d at 933-34

(upholding injunction prohibiting university from interfering with student's liberty interest); Public Util.

Comm'n of Texas v. City of Austin , 728 S.W.2d 907 (Tex. App.--Austin 1987, writ ref'd n.r.e.)

(immunity did not preclude suit alleging commission acted beyond its authority). We follow Martine and

Courtney .

The Department also relies on Dillard v. Austin Independent School District , 806

S.W.2d 589 (Tex. App.--Austin 1991, writ denied), to support its claim that Huckabee may not sue the

agency directly. Dillard is distinguishable because the plaintiff in that case sought monetary compensation

for an alleged intentional tort rather than equitable relief for the unconstitutional deprivation of a property

interest. A governmental unit is not liable for the intentional torts of its employees. Fireman's Ins. Co. v.

Board of Regents , 909 S.W.2d 540 (Tex. App.--Austin 1995, writ requested). (1)

We sustain point of error two with regard to the claim for equitable relief to remedy the

state's interference with a protected property right and overrule it with regard to the declaratory judgment

claim.

CONCLUSION

We affirm the trial-court judgment with regard to the section 1983 and the declaratory

judgment claims. We reverse and remand the remaining issues to the trial court for proceedings consistent

with this opinion.

Before Justices Powers, Aboussie and Kidd

Affirmed in Part; Reversed and Remanded in Part

Filed: January 30, 1997

Do Not Publish

1. We also distinguish Turner v. Texas Dep't of Mental Health & Mental Retardation , 920

S.W.2d 415 (Tex. App.--Austin 1996, writ denied), which involved a suit brought after the plaintiff

was allegedly wrongfully detained for mental illness. Turner did not involve a protected property

interest.