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Click here for the full text of this decision FACTS:In 2003, police officers for the city of Balch Springs filed suit against the city and K.M. Hubert, individually and in her capacity as city manager, stating that the city failed to pay them in compliance with certain statutorily required and enacted pay plans. The officers alleged claims both for statutory violations and for negligence. In response, the city and Hubert filed a plea to the jurisdiction based on the doctrine of governmental immunity. Both the city and Hubert argued that the city, as a governmental entity, was immune from suit and neither the Legislature nor the city had waived the city’s immunity in this case. The city and Hubert further argued that because all of the officers’ claims against Hubert were based on actions that she performed in her official capacity as city manager, governmental immunity shielded her from suit. In response, the officers argued that the statutes under which they asserted claims for compensation waived immunity from suit. The officers also relied upon the “plead and be impleaded” language of Texas Local Government Code �51.075 and similar language in the Balch Springs city charter to assert that the city had waived its immunity. The trial court granted the city and Hubert’s plea to the jurisdiction and dismissed the officers’ claims for lack of subject matter jurisdiction. On appeal, the officers did not challenge the dismissal of their claims against Hubert individually. Nor did they challenge the dismissal of their negligence claims. The sole issue in this appeal is whether the trial court erred in concluding that governmental immunity barred the officers’ suit to enforce a statutory right to compensation. HOLDING:Affirmed. The officers argued that state and local statutes waived the city’s and Hubert’s governmental immunity. But the court stated that the Texas Supreme Court rejected that argument in 2006′s Tooke v. City of Mexia. In Tooke, the Supreme Court held the phrases “sue and be sued” and “plead and be impleaded” as used in �51.075 and a city charter provision were not a clear and unambiguous waiver of immunity. Accordingly, the court held that those provisions could not defeat the city and Hubert’s plea to the jurisdiction. The officers’ second argument was that there is no governmental immunity from suit under the civil service statutes of the Local Government Code. But another Texas Supreme Court decision, 2007′s City of Houston v. Williams, foreclosed this argument, the court stated. The court then opined that to deny employees of the fire and police departments recourse in cases where a municipality violates assorted pay statutes “would eviscerate the statutes’ expressly stated purpose.” The statutes, the court stated, are meant to protect employees from unfettered local authority. Such protection, the court stated, is illusory without the ability to enforce the statutes. The court stated that the Texas Supreme Court’s recent opinions compelled it to rule against the officers “[d]espite the fact that governmental immunity from claims under the civil service statutes is not generally supported either by historic precedent or the legislature’s stated purpose for the statutes.” The court also declined the officers’ request to amend their pleadings and assert their claim as a declaratory judgment action. Governmental immunity cannot be circumvented, the court stated, by characterizing a suit for damages as a declaratory judgment action. OPINION:Morris, J.; Morris, Whittington and Richter, J.J.

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