Court of Appeals of Texas,
Yvonne BARCLAY, Appellant,
THE BEXAR COUNTY SHERIFF’S DEPARTMENT, Sheriff Ralph Lopez in His Official Capacity, and the Bexar County Sheriff’s Civil Service Commission, Appellees.
July 16, 2003.
From the 408th Judicial District Court, Bexar County, Texas, Trial Court No. 2000–CI–00456; Frank Montalvo, Judge Presiding.
Attorneys & Firms
Hao Le, Stewart & Le, P.L.L.C., San Antonio, for appellant.
Sue Ann Gregory, Asst. Criminal Dist. Atty., San Antonio, for appellee.
Sitting: SANDEE BRYAN MARION, Justice.
Opinion by SANDEE BRYAN MARION, Justice.
*1 This is an appeal from the trial court’s dismissal of appellant’s claims based on appellees’ plea to the jurisdiction/motion to dismiss (hereinafter “plea to the jurisdiction”). Because the basis of appellee’s plea to the jurisdiction did not establish that the trial court lacked jurisdiction, we reverse and remand.
Yvonne Barclay was employed by the Bexar County Sheriff’s Department and Sheriff Ralph Lopez as a Bexar County Detention Officer. Barclay alleges she suffered on-the-job injuries to both of her hands in February 1998. Barclay has been diagnosed with bilateral carpel tunnel syndrome, and she has undergone three surgeries. Barclay received worker’s compensation benefits; however, she did not receive her full salary. Instead, Barclay was required to use accrued personal, sick, holiday, and compensatory time during her leave from work. On April 9, 1999, Sheriff Lopez ordered Barclay to a fitness for duty evaluation, following which, she was declared unfit for duty. As a result, Sheriff Lopez required Barclay to accept a civilian position at a reduced salary or be terminated. On June 10, 1999, Sheriff Lopez terminated Barclay’s employment.
On August 31, 1999, the Bexar County Sheriff’s Civil Service Commission held a hearing on Barclay’s grievance following her termination. Before the Commission, Barclay asserted her condition was not improving and she requested that she be paid her full salary pursuant to Article 3, Section 52(e)....”
Barclay then filed suit in district court, alleging the appellees’ denial of her full salary violated her constitutional rights under section 52e and continue to pay her maximum salary until the earlier of the expiration of his term of office or her incapacity ends. Appellees filed a plea to the jurisdiction, which the trial court granted without stating its grounds.
STANDARD OF REVIEW
We review de novo the district court’s ruling on a plea to the jurisdiction. See Local Government Code section 158.037, thus a suit for declaratory judgment was improper.
FINALITY OF COMMISSION’S DECISION
*2 Appellees’ plea to the jurisdiction relies on its assumption that the Commission’s decision was final. See TEX. LOC. GOV’T CODE ANN.. § 158.037(a) (Vernon 1999) (providing for appeal of a “final decision”). While the parties have treated the decision as final, we disagree with this characterization.
Texas–New Mexico Power Co. v. Texas Indus. Energy Consumers, 806 S.W.2d 230, 232 (Tex.1991). Applying these guidelines here, we conclude, after reviewing the record of the Commission hearing, that the Commission’s decision is not final.
When Barclay first appealed to the Commission, she asked that the Commission allow her to go to independent doctors to determine whether she was fit for duty. However, at the first of two Commission hearings, Barclay’s counsel announced she was changing her request because the prognosis of her section 52e. The Commission recessed the hearing to allow the parties to prepare arguments on this request.
The transcript of the second hearing begins with this statement by an unidentified speaker: “This is to determine (inaudible) to send Ms. Barclay to three physicians.” At the conclusion of this hearing, an unidentified commissioner seconded another unidentified commissioner’s motion as follows:
I’m going to move that—the commission deny Mrs. n deny Mrs. Barclay’s claim pursuant to Article 3, Section 52(e) ... and that pursuant to the Section 2.61 and 2.62, the civil service commission will select a panel of three physicians for Mrs. Barclay to have the option of being examined within 30 days after her receipt of the notification of those physicians by the commission.
*3 The record contains a copy of a letter, following the hearing, from the Commission to Barclay in which it states Barclay has the option of being evaluated by three physicians or psychiatrists to determine her fitness for duty. The record also contains a copy of a letter from Barclay’s attorney to the Commission stating that Barclay will make appointments with the three doctors designated by the Commission.
Thus, the Commission’s decision denied Barclay’s “claim” under TEX. CONST. art. III, § 52e. Because the Commission’s decision is not final, we hold that appellees did not establish that Barclay’s suit was barred by the doctrines of res judicata or collateral estoppel or because she did not first exhaust her administrative remedies. Appellees’ argument that Barclay’s claim was barred under the Declaratory Judgment Act was premised entirely on its assertion that Barclay was required to exhaust her administrative remedies. Because appellees did not establish a “final decision” from which Barclay could appeal, this argument likewise provides no basis for granting the plea.2
The grounds upon which appellees based their plea to the jurisdiction did not establish that the trial court was without jurisdiction. Therefore, we reverse the trial court’s order of dismissal and remand the cause to the trial court.
TEX. CONST. art. III, § 52e.
The appellees’ contention that there is no justiciable issue here because any amount Barclay could receive under Frasier, 9 S.W.3d at 425.