Court of Appeals of Texas, Dallas.
ERIN THORNTON, Appellant
v.
CITY OF PLANO, TEXAS, AND ED DRAIN, Appellees
No. 05-24-01330-CV
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Opinion Filed June 30, 2025
On Appeal from the 493rd District Court
Collin County, Texas
Trial Court Cause No. 493-04071-2023
Before Justices Smith, Clinton, and Barbare
Opinion by Justice Barbare
MEMORANDUM OPINION
CYNTHIA BARBARE JUSTICE
*1 Affirm and Opinion Filed June 30, 2025
Erin Thornton (Thornton) is a Texas peace officer who was employed by the City of Plano (City). During her tenure as a City police officer, Thornton suffered multiple injuries, and the injuries eventually precluded her from working as a police officer. She alleges that, because of her injuries, the Plano Police Chief Ed Drain (Drain) illegally terminated her employment.
Thornton sued the City and Drain for, among other things, violating Texas Local Government Code section 177A.003; she also sought mandamus relief against the City to compel it to conduct a proper grievance hearing. In response, the City and Drain each filed a plea to the jurisdiction. The trial court granted the City’s plea as to Thornton’s section 177A.003 claim and request for mandamus relief. It also granted Drain’s plea to the jurisdiction and ordered Thornton’s claims against Drain dismissed with prejudice. Although Thornton requested findings of fact and conclusions of law, the trial court did not enter them, she did not file a notice of past due findings as required by rule 297, see TEX. R. CIV. P. 297, and Thornton does not complain on appeal about the trial court’s failure to enter findings of fact and conclusions of law.
This interlocutory appeal followed. See TEX. CIV. PRAC. &REM. CODE ANN. § 51.014(a)(8) (authorizing interlocutory appeal from order granting plea to the jurisdiction by a governmental unit); Tex. Parks &Wildlife Dep’t v. E.E. Lowrey Realty, Ltd., 235 S.W.3d 692, 694 (Tex. 2007) (appellate court may consider interlocutory appeal of a jurisdictional plea brought by employee of governmental unit). Thornton’s appellate brief sets forth five issues in which she argues that the trial court erred by granting the pleas to the jurisdiction and by dismissing her claims without providing an opportunity to amend the petition. We affirm.
PLEA TO THE JURISDICTION
Governmental immunity protects the State’s political subdivisions, including its cities, against suits and legal liability. Dohlen v. City of San Antonio, 643 S.W.3d 387, 392 (Tex. 2022). A city retains immunity unless the Legislature clearly and unambiguously waives it. Id. Additionally, immunity does not bar an ultra vires suit, which is brought against a government officer for acting outside his authority or for failure to perform a purely ministerial act. Lopez v. Sosa, No. 05-22-00295-CV, 2023 WL 3914553, at *2 (Tex. App.—Dallas June 9, 2023, pet. denied) (mem. op.) (citing Houston Belt &Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 161 (Tex. 2016)). Governmental immunity does not protect every act by a government officer that requires some exercise of judgment or discretion; an officer with some discretion may act ultra vires “if he exceeds the bounds of his granted authority or if his acts conflict with the law itself.” Id. (quoting Houston Belt, 487 S.W.3d at 158).
BACKGROUND
While employed as a police officer by the City, Thornton suffered multiple line-of-duty injuries.1 Relevant to this appeal, Thornton alleges that she “suffered disabling injuries” while working in August 2021. She returned to duty the following month; however, she was injured again the following year. In May 2023, Thornton was diagnosed with Post-Traumatic Stress Disorder. During the summer of 2023, additional medical testing revealed “a whole body impairment rating of 10% due to her August 18, 2021 injuries.” Thornton alleges that “[s]tarting in late 2023 or early 2024, Defendant City has undertaken an improper effort to harass and retaliate against Plaintiff Thornton in an effort to force her out of her employment … and to deprive her of employment benefits she is entitled [to] under Texas law.”
*2 The City notified Thornton in April 2024 that her employment would be terminated unless she found another position with the City. Thornton did not do so, and the City terminated her employment on August 1, 2024. In this lawsuit, Thornton alleges that the termination was illegal.
Thornton sued the City for violating section 177A.003 of the Texas Local Government Code. She alleges that she, a police officer who was injured in the line of duty, is still recovering from those injuries, and section 177A.003 precludes the City from terminating her employment. In this lawsuit, Thornton sought declaratory relief, injunctive relief and/or mandamus relief to obtain all benefits allowed by section 177A.003. She also sought a writ of mandamus against the City because the City improperly denied her requested grievance hearing to challenge the termination. Finally, Thornton asked for the equitable remedy of reinstatement.2
Further, Thornton filed a second amended petition and alleged two causes of action against Drain. First, she sued Drain for workers’ compensation retaliation and sought injunctive relief to require reinstatement.3 Second, Thornton alleged a “leave of absence claim,” which states that Drain wrongfully terminated her employment in violation of section 177A.003; Thornton sought “injunctive relief to reverse the illegal termination by Defendant Drain so that she may receive all leave and other benefits allowed by TEXAS LOCAL GOVERNMENT CODE § 177A.003 [that] she is entitled [to] as a police officer injured on the job.”
In their answer to Thornton’s second amended petition, the City and Drain argued, among other things, that Chapter 177A does not apply to the City or Drain because the City is a civil service municipality under Chapter 143 of the Texas Local Government Code, Chapter 177A applies only to non-civil service municipalities, and, thus, Chapter 177A is not applicable to the City or Drain. Therefore, they contended, “the [trial] Court has no subject matter jurisdiction of a purported cause of action under Chapter 177A” against them.
Subsequently, Drain and the City each filed a plea to the jurisdiction. In his plea, Drain stated that he “dispute[d] that Chapter 177A even applies to the City of Plano, which is a Chapter 143 city that contains separate leave provisions.” He requested the trial court dismiss Thornton’s claims for this and other reasons. The City also raised the Chapter 143 argument in its “Reply to Plaintiff Thornton’s Response to the Cross-Defendant City’ [sic] of Plano’s Plea to the Jurisdiction and Assertion of Official Immunity and Evidentiary Exhibits in Further Support of the Pleas to the Jurisdiction.” In that pleading, the City argued that evidence demonstrated that Thornton received all leave to which she was entitled, Chapter 177A did not apply to the City, and Thornton was not entitled to additional leave under Chapter 143. The City attached evidence to its pleading, including an affidavit from Drain averring that the City is a civil service municipality governed by Chapter 143. Another affidavit from Sam Greif (Greif), a Deputy City Manager, states that the City “is a civil service municipality under Chapter 143, Texas Local Government Code.” Greif’s affidavit also provides:
*3 I understand that Erin Thornton is claiming that the City owes her additional injury-on-duty leave for a period of an additional year under Chapter 177A of the Texas Local Government Code. Chapter 177A does not apply to the City of Plano. The Legislative history for Chapter 177A indicates that the intent of this Chapter is to extend this same benefit to law enforcement personnel in non-civil service cities. The City of Plano already provides this benefit as a civil service city as required by Section 143.073.
Thornton filed an objection challenging Drain’s and Greif’s affidavits. She also objected to deposition testimony from Drain and LaShon Ross (Ross), a Deputy City Manager, which she attached to her pleading. In his deposition, Drain testified that he believed the City was required to follow Chapter 143 rather than Chapter 177A and the City complied with the requirements of Chapter 143. Ross also testified that the City was a civil service municipality under Chapter 143 and complied with its corresponding obligations. No ruling on Thornton’s evidentiary objections is in our record.4
The City and Drain filed a “Supplemental Reply in Further Support of It’s [sic] Plea to the Jurisdiction Pertaining to Applicability of Chapter 177A to the City of Plano and its Police Chief Drain” in which they argued that their evidence and the legislative history of Chapter 177A “demonstrates the inapplicability of Chapter 177A, [Texas Local Government Code], to the City of Plano” because section 143.073 governs the administration of injury leave for the City’s civil service personnel. The City attached portions of a deposition transcript from Greif in which he testified to his belief that the City was governed by Chapter 143 rather than Chapter 177A.
The trial court held a hearing on the City’s and Drain’s pleas to the jurisdiction and made oral rulings sustaining the pleas to the jurisdiction. The trial court subsequently entered written orders, which are consistent with the oral announcements at the hearing. The trial court did not specify the bases for its orders.
The trial court’s order granting Drain’s plea to the jurisdiction states:
On this day, the Court considered the Plea to the Jurisdiction and Assertion of Official Immunity submitted by Police Chief Drain. After consideration of the dispositive plea, including all responses by Cross-Plaintiff Erin Thornton except for the supplemental response filed by Thornton on October 10, 2024 at 11:51 a.m., any exhibits made of record, as well as the pleadings and contents of the Court’s file, and the arguments of respective counsel made at the hearing on October 10, 2024, the Court finds that Chief Ed Drain’s Plea to the Jurisdiction and Assertion of Official Immunity should be and is GRANTED.
Similarly, as is relevant here, the trial court’s order granting the City’s plea states, in part:
*4 On this day, the Court considered the Plea to the Jurisdiction submitted by Defendant City of Plano. After consideration of the dispositive plea, including all responses by Cross-Plaintiff Erin Thornton except for the supplemental response filed by Thornton on October 10, 2024 at 11:51 a.m., any exhibits made of record, as well as the pleadings and contents of the Court’s file, and the arguments of respective counsel made at the hearing on October 10, 2024, the Court finds that the City’s Plea to the Jurisdiction should be and is hereby GRANTED as to Thornton’s claim under Tex. Loc. Gov’t Code Ch. 177A and her request for mandamus relief.
This appeal followed. In five issues, Thornton argues that the trial court erred by (1) dismissing her claims under Chapter 177A against the City because the statute creates a property interest in continued employment for peace officers recovering from line-of-duty illnesses and injuries; (2) dismissing her claim for mandamus relief against Drain5 because Chapter 177A creates mandatory duties and Drain failed to perform ministerial acts when he denied leave to her that the statute allows; (3) dismissing Drain from the lawsuit because his interests will be affected by her claims for declaratory relief about the scope of Chapter 177A against the City; (4) finding it lacked jurisdiction to hear her claims for equitable relief for benefits provided by Chapter 177A; and (5) dismissing her claims brought under Chapter 177A without providing an opportunity to amend her pleadings.
TEXAS LOCAL GOVERNMENT CODE
The parties disagree which section(s) of the Texas Local Government Code applies to Thornton’s claims against the City and Drain.
A. Section 177A.003
Texas Local Government Code Chapter 177A is titled “Illness or Injury Leave of Absence for Firefighters, Police Officers, and Emergency Medical Services Personnel of Political Subdivisions.” Thornton argues the City and Drain failed to provide the requisite leave stated in section 177A.003. Section 177A.003 is titled “Line of Duty Illness or Injury Leave of Absence” and states:
(a) A political subdivision shall provide to a firefighter, police officer, or emergency medical services personnel a leave of absence for an illness or injury related to the person’s line of duty. The leave is with full pay for a period commensurate with the nature of the line of duty illness or injury. If necessary, the political subdivision shall continue the leave for at least one year.
(b) At the end of the leave of absence under Subsection (a), the governing body of the political subdivision may extend the leave of absence at full or reduced pay.
(c) If the firefighter, police officer, or emergency medical services personnel is temporarily disabled by a line of duty injury or illness and the leave of absence and any extension granted by the governing body has expired, the person may use accumulated sick leave, vacation time, and other accrued benefits before the person is placed on temporary leave.
(d) If the leave of absence and any extension granted by the governing body has expired, a firefighter, police officer, or emergency medical services personnel who requires additional leave described by this section shall be placed on temporary leave.
TEX. LOC. GOV’T CODE ANN. § 177A.003.
B. Section 143.073
*5 Chapter 143 is titled “Municipal Civil Service for Firefighters and Police Officers.” The City and Drain argue that section 143.073 is applicable to the amount of leave to which Thornton was entitled. Section 143.073 is titled “Line of Duty Illness or Injury Leave of Absence” and states:
(a) A municipality shall provide to a fire fighter or police officer a leave of absence for an illness or injury related to the person’s line of duty. The leave is with full pay for a period commensurate with the nature of the line of duty illness or injury. If necessary, the leave shall continue for at least one year.
(b) At the end of the one-year period, the municipality’s governing body may extend the line of duty illness or injury leave at full or reduced pay. If the fire fighter’s or police officer’s leave is not extended or the person’s salary is reduced below 60 percent of the person’s regular monthly salary, and the person is a member of a pension fund, the person may retire on pension until able to return to duty.
(c) If pension benefits are not available to a fire fighter or police officer who is temporarily disabled by a line of duty injury or illness and if the year at full pay and any extensions granted by the governing body have expired, the fire fighter or police officer may use accumulated sick leave, vacation time, and other accrued benefits before the person is placed on temporary leave.
(d) If a fire fighter or police officer is temporarily disabled by an injury or illness that is not related to the person’s line of duty, the person may:
(1) use all sick leave, vacation time, and other accumulated time before the person is placed on temporary leave; or
(2) have another fire fighter or police officer volunteer to do the person’s work while the person is temporarily disabled by the injury or illness.
(e) After recovery from a temporary disability, a fire fighter or police officer shall be reinstated at the same rank and with the same seniority the person had before going on temporary leave. Another fire fighter or police officer may voluntarily do the work of an injured fire fighter or police officer until the person returns to duty.
Id. § 143.073.
ANALYSIS
The City and Drain argued in the trial court and again on appeal that the City is a civil service municipality subject only to Chapter 143 and not to Chapter 177A. The City and Drain assert that Chapter 177A cannot be read in isolation and must be interpreted alongside Chapter 143. Utilizing principles of statutory interpretation, the City and Drain contend that Chapter 143 is a more specific statute because it applies only to civil service municipalities while Chapter 177A applies to political subdivisions generally. To harmonize these statutes, they believe that the Legislature intended for Chapter 177A only to address leave for officers of political subdivisions who are not covered by civil service protections. Thornton does not address the Chapter 143 argument in her opening appellate brief or in her reply brief.
“When, as here, a trial court sustains a plea to the jurisdiction without specifying its grounds for doing so, an appellant must challenge each independent ground asserted in the plea.” Carter v. Dallas City Plan Comm’n, No. 05-20-00190-CV, 2021 WL 777088, at *2 (Tex. App.—Dallas Mar. 1, 2021, pet. denied) (mem. op.) (quoting Deadmon v. Dallas Area Rapid Transit, 347 S.W.3d 442, 445 (Tex. App.—Dallas 2011, no pet.)); see also Return Lee to Lee Park v. Rawlings, No. 05-19-00456-CV, 2020 WL 7693112, at *4 (Tex. App.—Dallas Dec. 28, 2020, pet. denied) (mem. op); TEX. R. APP. P. 44.1(a)(1) (No judgment may be reversed on appeal unless the error complained of probably caused rendition of an improper judgment.). “If he fails to do so, we must affirm.” Carter, 2021 WL 777088, at *2 (quoting Deadmon, 347 S.W.3d at 445); accord Rawlings, 2020 WL 7693112, at *4.
*6 As to Thornton’s Chapter 177A arguments, the trial court sustained the City’s and Drain’s pleas to the jurisdiction without specifying the grounds for doing so. One argument raised below—that the City, a civil service municipality, and Drain, its chief of police, are not subject to Chapter 177A because they are governed only by Chapter 143—would fully support the trial court’s orders at issue in this appeal. However, while Thornton’s appellate brief raises several arguments to explain why she believes that the trial court misapplied Chapter 177A and, thus, erred by granting the pleas to the jurisdiction, she did not challenge this independent ground that could support the trial court’s judgment even though it was thoroughly briefed in the trial court—and we will not raise it for her.6
Further, we do not request additional briefing as to whether the City and Drain are governed only by Chapter 143. Although appellate courts have authority to request additional briefing in a case where an “unbriefed issue” was “fairly included” in or “inextricably entwined” with a briefed issue, “courts of appeals retain their authority to deem an unbriefed point waived in lieu of requesting additional briefing.” Carter, 2021 WL 777088, at *2 (quoting St. John Missionary Baptist Church v. Flakes, 595 S.W.3d 211, 215–16 (Tex. 2020) (per curiam)). Whether the City and Drain are governed only by Chapter 143 rather than by both Chapters 143 and 177A is not a topic that is “fairly included” in or “inextricably entwined” with the issues that Thornton’s appellate brief addresses. The argument is a wholly separate ground on which the trial court could have granted the pleas to the jurisdiction. Accordingly, we decline to ask the parties to brief this issue.
Because Thornton failed to address each independent ground asserted in the pleas to the jurisdiction, we must affirm.7 See Carter, 2021 WL 777088, at *2 (quoting Deadmon, 347 S.W.3d at 445).
CONCLUSION
For the reasons discussed above, we affirm the trial court’s October 23, 2024 Final Order on Chief Ed Drain’s Plea to the Jurisdiction and Assertion of Official Immunity and the October 23, 2024 Final Order on City of Plano’s Plea to the Jurisdiction.
JUDGMENT
Opinion delivered by Justice Barbare. Justices Smith and Clinton participating.
In accordance with this Court’s opinion of this date, the trial court’s October 23, 2024 Final Order on Chief Ed Drain’s Plea to the Jurisdiction and Assertion of Official Immunity and the October 23, 2024 Final Order on City of Plano’s Plea to the Jurisdiction are AFFIRMED.
It is ORDERED that appellee CITY OF PLANO, TEXAS, AND ED DRAIN recover their costs of this appeal from appellant ERIN THORNTON.
Judgment entered this 30th day of June, 2025.
Footnotes |
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| 1 | Thornton’s second amended petition details her alleged injuries and the medical treatment she received while working for the City. We need not recite her line-of-duty injuries and corresponding medical treatment to resolve this appeal. See TEX. R. APP. P. 47.1. |
| 2 | Additionally, Thornton sued the City for retaliating against her for filing a workers’ compensation claim; the City did not move to dismiss this claim. Thornton also requested a declaratory judgment to discern the amount of money that the City spent on her medical treatment for the August 2021 injury. Although the City’s plea to the jurisdiction sought dismissal of this claim, the trial court denied the City’s plea, and the City did not file a cross-appeal. These additional claims are not relevant to our disposition of this appeal and, accordingly, we do not detail them here. See TEX. R. APP. P. 47.1. |
| 3 | Thornton does not argue on appeal that the trial court erred by granting Drain’s plea to the jurisdiction as to the workers’ compensation retaliation claim. |
| 4 | At the hearing on the pleas to the jurisdiction, the trial judge noted that, at a prior hearing, she had considered Thornton’s “objections to the defendant’s evidence, including specifically that … the pleas were supported by an affidavit by Greif.” She stated that she had “sustained in part and denied in part the objections to defendant’s evidence.” However, the record from the prior hearing does not show that the judge ruled on the objections. Even if the trial judge sustained Thornton’s objections to Greif’s affidavit, Drain and Ross also testified that the City is subject to Chapter 143. Further, no party disputed this fact in the trial court or on appeal. |
| 5 | In her live pleading at the time that the trial court ruled on Drain’s plea to the jurisdiction, Thornton sought injunctive, not mandamus, relief against Drain. She sought mandamus relief only against the City. Accordingly, even if we were to consider Thornton’s second issue, we would conclude that it presents nothing for our review. |
| 6 | The Supreme Court of Texas has consistently held that the court of appeals may not reverse a judgment on error not assigned by a party. See Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 782 (Tex. 2020) (“A court of appeals may not reverse a trial court judgment on a ground not raised.”). “Our adversary system of justice generally depends on the parties to frame the issues for decision and assigns to courts the role of neutral arbiter of matters the parties present.” Id. (cleaned up). |
| 7 | We make no comment about whether the City and Drain are subject to Chapter 177A in addition to Chapter 143 of the Texas Local Government Code. |