544 S.W.3d 426
Tex. App.2018Background
- Sarah Swanson was Town of Shady Shores city secretary; after performance evaluation and related meetings in Feb. 2014, the Council voted to terminate her for "lack of confidence." She sued.
- Swanson alleged she was fired in retaliation for reporting destruction/removal of town meeting recordings and other misconduct, asserting claims under the Texas Whistleblower Act, common law (Sabine Pilot), declaratory relief (UDJA) based on alleged TOMA violations, and Texas constitutional ("due course") and free speech violations; original statutory/ common-law claims were dismissed for lack of jurisdiction.
- The Town sought dismissal via a plea to the jurisdiction and filed both traditional and no-evidence summary judgment motions challenging jurisdiction and the viability of Swanson’s UDJA, TOMA-based, constitutional, and free-speech claims.
- The trial court granted the plea as to Swanson’s whistleblower and Sabine Pilot claims but denied the Town’s summary judgment motions as to Swanson’s UDJA/TOMA and constitutional/declaratory claims; the Town appealed interlocutorily the denial of its summary-judgment motions.
- The court of appeals held: government may not use a no-evidence SJ to negate jurisdictional facts (government bears initial burden); TOMA waives immunity for certain relief (injunctive/mandamus, declaration that action is void, attorney’s fees) but not for retrospective money damages (back pay) or broader declaratory relief; Swanson’s due-course and free-speech UDJA claims were not viable and were dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper use of no-evidence summary judgment to challenge jurisdiction | Swanson: Town cannot shift the burden; she had no obligation to produce jurisdictional evidence until Town negated jurisdiction | Town: no-evidence SJ proper to defeat UDJA/TOMA/declaratory claims for lack of evidence | Court: Overruled Town — governmental entities cannot use no-evidence SJ to negate jurisdictional facts; Town must first produce evidence negating jurisdiction |
| UDJA/TOMA: whether UDJA claims based on TOMA are barred by immunity | Swanson: as an "interested person" she may seek UDJA relief to stop/prevent TOMA violations, including declaration that termination was void, injunctive relief, and fees | Town: UDJA does not waive immunity for declarations of rights under statutes generally; TOMA does not waive immunity for all declaratory relief or for back pay | Court: TOMA waives immunity for injunctive/mandamus relief, declarations that actions are void, and fees; UDJA claims seeking broader declaratory relief beyond that, and back pay (money damages), are barred and dismissed in part |
| Article I, § 19 ("due course") declaratory claims based on alleged denial of hearing/confrontation/appeal | Swanson: alleged she was denied opportunity to confront accusers and to appeal; seeks UDJA declaratory relief for constitutional violations | Town: no property or liberty interest; no due-process claim; claims were pleaded only as basis for UDJA and not as standalone constitutional claims | Court: Dismissed for lack of jurisdiction — Swanson lacked a protected property interest (at-will/no-confidence removal) and her reputational allegations were not stigmatizing enough to implicate liberty rights |
| Free-speech claim under Texas Constitution (equitable relief) | Swanson: reporting destruction/removal of records and mayor’s conduct were matters of public concern and motivated termination | Town: speech was made pursuant to official duties and thus unprotected; Town also argued immunity for money damages (back pay/fees) | Court: Dismissed — evidence shows Swanson’s reports about town records were within job duties and made up the chain of command (employee speech); alleged plan by mayor to meet under false pretenses was not shown to be a matter of public concern |
Key Cases Cited
- Heckman v. Williamson Cty., 369 S.W.3d 137 (Tex. 2012) (plaintiff must plead facts affirmatively showing jurisdiction; when defendant challenges jurisdictional facts, defendant bears burden to negate them)
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (governs burden and procedures when governmental defendants challenge jurisdictional facts; defendant must present evidence negating jurisdiction before plaintiff must respond)
- State v. Lueck, 290 S.W.3d 876 (Tex. 2009) (pleading requirements for jurisdictional claims; distinguishes pleading from evidentiary burdens)
- Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (speech made pursuant to official duties is not protected by the First Amendment)
- Lane v. Franks, 134 S. Ct. 2369 (U.S. 2014) (public employees retain First Amendment rights as citizens; analysis requires balancing employee’s speech interest and employer’s interest)
- Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011) (UDJA does not broadly waive sovereign immunity; limited waiver applies to challenges to validity of statutes/ordinances)
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (U.S. 1985) (due-process protections for property interests in public employment require notice and opportunity for hearing)