BEAUMONT -- A three-panel appellate court has
affirmed a ruling in favor of the city of Beaumont that granted the
city’s plea to the jurisdiction and dismissed the claim of a former city
Justice Leanne Johnson of the Texas Ninth District Court of Appeals at Beaumont wrote the Oct. 10 opinion. Justices Steve McKeithen and Charles Kreger concurred.
The judges affirmed the decision from the Jefferson County District
as they ruled against all three of Billy Fratus' issues. The former
fire chief had sued the city, asking for damages, declaratory relief and
injunctive relief with allegations that Beaumont had violated the Texas
Constitution and Chapter 21 of the Texas Labor Code when it fired him
while he was on disability.
Considering the city is protected by immunity, Johnson wrote,
“Here, [the] injury alleged has already occurred, the only plausible
remedy is an award of money damages. A party may not circumvent the
state’s sovereign immunity by characterizing a suit for money damages as
a claim for declaratory judgment.”
Ultimately, Fratus failed to state a claim that would overrule the
city’s immunity. He was also denied equitable relief as he has not
established a claim against a city official, or any claim for equitable
relief that is substantial enough to best the city’s plea to
Fratus also argued that his protected speech led to the city firing
him out of retaliation. He said Beaumont Fire Chief Anne Huff took
issue with his decision to participate in the public uproar against Huff
after she allegedly illegally fired a firefighter. But the judges
determined, “[Fratus] has not pleaded facts that establish the basis for
this allegation, nor does he explain how the matters about which he
allegedly spoke are matters of public concern.”
Instead, because nothing shows that Fratus’ allegations concerning
any speech were made outside of the department, and that he made the
comments as a citizen concerned about a public matter, it is not
considered protected under the Constitution.
The judges also disagreed with Fratus' argument that he suffered
discrimination that is banned in the Texas Commission on Human Rights
Act (TCHRA) “for race and retaliation,” according to the opinion.
Although the act does waive sovereign immunity, it is only for the cases
that satisfy a prima facie claim, which this case does not.
Before the judges determined whether Fratus took part in a
protected activity (that allegedly led to discrimination against him),
they noted that Fratus did not even plead an adverse employment action
that would back his TCHRA claim. Yes, he was fired, the court ruled,
but after he appealed through the collective bargaining agreement, he
was later reinstated.
Finally, Fratus initial lawsuit said that he was making a claim
under the Texas Open Meetings Act (TOMA). He alleged “un-noticed”
collective bargaining agreements as well as arbitration hearings for
personnel issues are invalid. But the judges said this claim does not
satisfy that briefing requirements “because it lacks citations to the
record or to applicable authority and therefore presents nothing for our
Because Fratus failed to show that his issues overruled the immunity of the city, the judges affirmed the dismissal of the case.