In Re City of Beaumont, Texas v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00197-CV
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IN RE CITY OF BEAUMONT, TEXAS

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Original Proceeding
60th District Court of Jefferson County, Texas
Trial Cause No. A-192,887-A
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MEMORANDUM OPINION

The City of Beaumont filed a petition for writ of mandamus in

which it challenges the trial court’s denial of a combined traditional and

no-evidence motion for summary judgment. In its hybrid motion, the City

sought summary-judgment relief on all the claims the trial court had

severed from another suit. According to the City’s motion in the severed

cause, the final judgment that had been rendered in the cause from which

the claims had been severed necessarily created a bar to the trial court’s

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resolution of Mathews’ severed claims. Mathews disagreed, arguing that

the claims in the severed clause were based on his claims that the City

had violated his rights under the Texas Constitution, and he argued

those claims were not addressed by the judgment the City had obtained

in the other cause.

In this original proceeding, the City asks this Court to review an

interlocutory order in a petition seeking a writ of mandamus. It does so

because absent a statutory grant of authority providing an appellate

court with jurisdiction to consider appeals from the type of interlocutory

order at issue, our appellate jurisdiction is limited to appeals from final

judgments. Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 336

(Tex. 2000).

But our jurisdiction to adjudicate appeals is separate from our

jurisdiction over petitions seeking writs, including the type of writ at

issue here. See Tex. Gov’t Code Ann. § 22.221 (Writ Power); see also Tex.

R. App. P. 52 (Original Proceedings). Still, since the petitioner who files

a writ of mandamus is seeking extraordinary relief, the petitioner (the

relator) must “show that (1) the trial court clearly abused its discretion

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and (2) the relator lacks an adequate remedy by appeal.” In re

Kappmeyer, 668 S.W.3d 651, 654 (Tex. 2023) (citing In re Prudential Ins.

Co. of Am., 148 S.W.3d 124, 135-36 (2004)).

According to the City, under the circumstances in this case an

appeal following a trial would be an inadequate remedy because: (1) all

of Mathews’ claims are barred by the City’s affirmative defenses of res

judicata and collateral estoppel, as conclusively established by the

evidence the City attached to its motion for summary judgment; (2) as

the City sees it, the trial court’s ruling denying its hybrid motion allows

Mathews to “relitigate claims that have already been barred[;]” and (3)

the trial court abused its discretion in denying the City’s hybrid motion.

We temporarily stayed the trial-level proceedings so that we could

consider the City’s petition and Mathews’ response. See Tex. R. App. P.

52.10.

We turn first to the trial court’s ruling on the City’s no-evidence

motion. As to that part of the City’s motion, we conclude that because the

City’s motion doesn’t specifically state each element or elements of the

plaintiff’s claims on which the City claimed Mathews didn’t have

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evidence to support his claims, the City’s motion doesn’t comply with the

requirements of Texas Rule of Civil Procedure Rule 166a(i). See Tex. R.

Civ. P. 166a(i).

As for the trial court’s ruling on the traditional part of the City’s

hybrid motion, we conclude that on this record, the City has not

established that it is entitled to extraordinary relief for two reasons.

First, the record the City filed to support its petition doesn’t include all

the exhibits the trial court considered when it ruled on the City’s hybrid

motion. Thus, we conclude the City has requested extraordinary relief on

a ruling in a trial-level proceeding on a record different from the record

on which the ruling was made.

Second, as it relates to the City’s hybrid motion, we cannot

determine from among the petitions in the mandamus record which one

of the petitions Mathews filed constitutes the petition that the trial court

considered as the petition that contains Mathews’ live claims in the

severed cause. That issue is material to the City’s petition because the

City is seeking extraordinary relief on a record that is incomplete, and on

the record the City provides in this proceeding, it’s possible the trial court

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could have concluded that the City moved for summary judgment on a

petition that wasn’t the petition that included Mathews’ live claims,

meaning the claims the trial court in Trial Court Cause Number A-

198,887 severed into Trial Court Cause Number A-198,887-A, the

severed cause.

For the reasons more fully explained below, we lift our temporary

stay of the trial-level proceedings and deny the City’s petition. See Tex.

R. App. P. 52.8(a).

Background

James Mathews Jr. is a former employee of the City of Beaumont’s

Fire Department. In June 2008, Mathews and the driver of another

vehicle were involved in a collision while Mathews was off duty and

driving his truck. Because Mathews was charged with assaulting the

driver of the vehicle involved in the wreck based on what occurred after

the collision, the Chief of the City of Beaumont’s Fire Department

investigated the collision. In October 2008, Ann Huff, who at that time

was the Fire Chief, suspended Mathews indefinitely for cause for

engaging in conduct following the collision that violated the

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Department’s Code of Conduct. After the City notified Mathews of the

Fire Chief’s decision, Mathews exercised his rights under the Municipal

Civil Service Act to appeal his suspension. Under the avenues available

for his appeal, Mathews demanded that the City arbitrate the Fire

Chief’s decision before a hearing examiner. 1 In the appeal, Mathews

claimed the City didn’t have the right to terminate his employment

because he wasn’t on duty when the rear-end collision occurred. See Tex.

Loc. Gov’t Code Ann. § 143.057.

In 2012, the City prevailed in the hearing conducted by the hearing

examiner on Mathews’ Municipal Service Act appeal. See City of

Beaumont v. Mathews, No. 09-20-00053-CV, 2022 WL 318586, at *4 (Tex.

App.—Beaumont Feb. 3, 2022, pet. denied). The hearing examiner’s

decision left the Fire Chief’s decision to indefinitely suspend Mathews

from his employment with the City intact. Mathews challenged that

ruling in a lawsuit, which he filed in Jefferson County. The Jefferson

County District Clerk assigned Trial Court Cause Number 192,887-A to

1In the opinion, we refer to the hearing examiner interchangeably

as the hearing examiner or as the arbitrator.
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the suit and assigned it to the 58th District Court. Subsequently, the 58th

District Court transferred Mathews’ case to the 60th District Court.2

In July 2016, Mathews filed an amended petition in Cause Number

192,887-A, adding several constitutional claims to his claim challenging

the hearing examiner’s award. Along with the claim challenging the

hearing examiner’s award, Mathews’ amended petition, which he styled

“Plaintiff’s First Amended Original Petition” alleges: (1) an equal

protection claim under Article One Section 3 and 3a of the Texas

Constitution, which Mathews based on his claim that the City had

subjected him to disparate treatment; (2) a declaratory judgment claim,

in which Mathews asked the trial court to declare that the City had

violated his constitutional rights by depriving him of what Mathews

claimed was his constitutionally protected interest in his employment by

the City without the benefit of due process; (3) a claim for retaliation for

2The District Clerk assigned Mathews’ case to the 58th District
Court. On Mathews’ motion, the judge of the 58th District Court
transferred the case to the 60th District Court, since that court had
previously handled a related matter that involved the parties’ dispute.
See City of Beaumont v. Mathews, No. 09-20-00053-CV, 2022 WL 318586,
at *4, n.14. (Tex. App.—Beaumont Feb. 3, 2022, pet. denied).
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exercising his constitutional rights of free speech, which he based on

Article I, section 8 of the Texas Constitution; and (4) a due process claim

under Article I, section 3 of the Texas Constitution. In his prayer,

Mathews asked the trial court to declare that he was “unlawfully

indefinitely suspended from his position as a firefighter for the Beaumont

Fire Department.”

In November 2017, the City moved to sever Mathews’ claims under

Local Government Code section 143.057(j) (the claim challenging the

hearing examiner’s award upholding the Fire Chief’s indefinite

suspension) from “other claims brought in this cause number[.]” To

support its argument for severance, the City’s motion to sever notes that

under Chapter 143 of the Local Government Code, claims brought by a

firefighter against a local government entity involving a firefighter’s

indefinite suspension must “be advanced on the district court’s docket

and given a preference setting over all other cases.” Tex. Loc. Gov’t Code

Ann. § 143.121.

In January 2018, the trial court granted the City’s motion. In the

order granting the severance, the trial court ordered Mathews’ “[n]on-

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143.057(j) Claims severed from all other claims and counterclaims

pleaded in this cause of action” into Trial Court Cause Number A-

192,887-A. Thus, when moving for severance on the claims in Plaintiff’s

First Amended Original Petition, it appears the City perceived the

petition raised claims that were not subject to Local Government Code

section 143.057(j). In the order the trial court signed, the City is the party

responsible for categorizing the claims the trial court severed as “The

Non-143.057(j) Claims” rather than specifically identifying the claims

subject to the order of severance.

The Severed Case—Trial Court Cause A-192,887-A

In 2023, the City filed a hybrid motion for summary judgment in

the severed cause. In its hybrid motion, the City identified three

pleadings as the pleadings containing the claims on which the City was

moving for summary judgment: (1) “Plaintiff’s First Original Petition,”

the petition Mathews filed in Trial Court Cause A-192,887-A in July

2015, which is the same petition that was file-stamped on July 30, 2018,

in the severed cause, Trial Court Cause A-192,887-A; (2) “Plaintiff’s April

16, 2018 Supplemental Petition to Plaintiff’s Second Amended Petition,”

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a petition file-stamped in Trial Court Cause A-192,887-A on April 16,

2018; 3 and (3) “Plaintiff’s August 18, 2021 Second Supplemental Petition

to Plaintiff’s Second Amended Original Petition,” a petition file-stamped

in Trial Court Cause A-192,887-A on August 18, 2021. 4

The City relied on several theories to support its motion for

summary judgment. First, the City argued the trial court lacked

3The supplemental petition alleges that, for several reasons, the

City failed to provide Mathews the information he needed to exercise an
informed decision about the forum in which to appeal his suspension,
retaliated against Mathews by indefinitely suspending him from his
position because he was a “Union member and Steward [who] openly
supported [the incumbent’s Mayor’s opponent in a city election,]” and
violated his rights by relying on evidence of acts that occurred outside the
180-day window created in Local Government Code section 143.052 for a
City to prove that the City’s suspension of a firefighter was justified. Tex.
Loc. Gov’t Code Ann. § 143.052(h).
4Mathews’ supplemental petition alleges: (1) that during a city

election conducted in 2014, the Mayor of the City of Beaumont saw
Mathews at a polling location and fabricated a claim that Mathews
shouted at her using a vulgar term; (2) that in 2008 after Mathews was
involved in a collision with a motorist, the attorney for the City of
Beaumont falsely claimed that Mathews had beaten a motorist; (3) that
when the City presented its case to the hearing examiner, it relied on
evidence outside the 180-day time limit allowed by the Local Government
Code to justify the decision the City’s Fire Chief made in 2008 to suspend
him for cause. Mathews sought a temporary injunction, and he asked
that the trial court reinstate him to his position as a firefighter with all
attendant benefits “pending a jury trial on the fact questions of whether
the City complied or not with its contractual and or statutory duties.”
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jurisdiction to hear some of Mathews’ claims because Mathews and the

City had litigated claims alleging the City’s conduct in suspending him

from his job violated his constitutional rights in a case filed in federal

court. The federal court case was ultimately dismissed when the federal

judge ordered Mathews’ claims dismissed because his petition failed to

state a claim on which relief could be granted. See Fed. R. Civ. P.

12(b)(6). 5 Second, the City argued that to the extent that Mathews based

his claims in the severed cause on facts that occurred before the federal

court dismissed his suit in federal court (March 13, 2012), his claims are

barred “by claims preclusion resulting from the federal court’s 12(b)(6)

dismissal of Mathews’ federal civil rights case.” Third, in its hybrid

motion the City argued that Mathews’ claims were barred by the

doctrines of res judicata, collateral estoppel, and the law-of-the-case

doctrine. All of these arguments rely on either the March 2012 judgment

5In its petition, the City notes that it relied on a jurisdictional
argument in the trial court, but it isn’t pursuing it jurisdictional
argument in its petition for mandamus and is not waiving its right to rely
on that argument later because arguing the issue now by asking for
mandamus relief would be “premature and would only cloud the narrow
issue now before the Court.”
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from the federal court dismissing Mathews’ claims against the City, or

the judgment from this Court rendering judgment in the City’s favor

following the City’s appeal of the judgment in Trial Court Cause Number

A-192,887, a judgment this Court issued in 2022. Mathews, 2022 WL

318586, at *13-14.

In the trial-level proceedings in the severed cause, Mathews

responded to the City’s hybrid motion for summary judgment by noting

that his “due process claims (substantive and procedural) and free speech

claims [were not] addressed by the City[’s hybrid motion].” According to

Mathews, under Article One Section 8, his right to exercise his right to

free speech are protected against the City retaliating against him for the

union activities in which he engaged and from the “anti-Union

sentiments of [the City’s then Fire] Chief Anne Huff.”

All that said, Mathews ties his theories alleging the City violated

his constitutional rights to facts that he claims injured him, the City’s

decision to indefinitely suspend him from his job. To that extent, we agree

with the City that many of Mathews’ claims (and perhaps all of them)

may indeed be claims that are foreclosed by the judgment this Court

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issued in 2022. Id. For example, all of Mathews’ petitions allege that the

City failed to comply with the requirements of Local Government Code

Chapter 143 in several ways when the City indefinitely suspended

Mathews for cause. Another theory that Mathews relied on in all the

petitions he filed in the severed cause is that because he was off duty

when he collided with the motorist in 2008, the City could not terminate

him “as long as excessive force was not involved.” Yet claims tied to

Mathews’ discharge while off duty were foreclosed when the hearing

examiner, from the evidence the hearing examiner considered at the

hearing in 2012, decided the City could fire Mathews for the conduct that

Mathews engaged in after colliding with a motorist in 2008. That hearing

resulted in the hearing examiner’s 2012 finding upholding the Fire

Chief’s decision to discharge Mathews, and even though very narrow

exceptions exist that allow a hearing examiner’s decision to be reviewed

on questions like whether the award was procured by fraud (which this

Court determined Mathews failed to prove in his appeal), the Local

Government Code makes “the hearing examiner’s decision [] final and

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binding on all parties.” Tex. Loc. Gov’t Code Ann. § 143.057(c) (emphasis

added).

Turning back to the City’s challenge to the trial court’s ruling on its

hybrid motion, even were we to agree that the City’s hybrid motion has

merit as to some of (and perhaps all) Mathews’ claims, we don’t know

why the trial court denied the City’s motion. On June 19, 2023, the trial

court denied the City’s motion without stating a reason for its ruling. The

trial court’s order states:

On this day came to be heard Defendant, City of
Beaumont’s, Traditional and No Evidence Motions for
Summary Judgment. After reviewing the motion, the
response, arguments of counsel, if any, and all matters
properly before the Court, the Court is of the opinion that the
motion should be DENIED.
This Court also DENIES the Defendant permission to
pursue a permissive appeal.

Mandamus Issues

“Issue preclusion, or collateral estoppel, prevents relitigation of

particular issues already resolved in a prior suit.” Barr v. Res. Tr. Corp.

ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992). “The doctrine

of collateral estoppel precludes relitigation of ultimate issues of fact

actually litigated and essential to the judgment in a prior suit.” Getty Oil

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Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 801 (Tex. 1992). “Collateral

estoppel also precludes the relitigation of essential issues of law that

were litigated and determined in a prior action.” Id. at 802.

A party seeking to assert the bar of collateral estoppel must

establish that (1) the facts sought to be litigated in the second action were

fully and fairly litigated in the first action; (2) those facts were essential

to the judgment in the first action; and (3) the parties were cast as

adversaries in the first action. Sysco Food Servs., Inc. v. Trapnell, 890

S.W.2d 796, 801 (Tex. 1994). Collateral estoppel applies when an issue

decided in the first action is actually litigated, essential to the prior

judgment, and identical to an issue in a pending action. Tex. Dep’t of Pub.

Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001).

In its mandamus petition, the City argues that, based on the

judgment that this Court rendered in Mathews’ case in 2022 in which we

addressed his challenge to the hearing examiner’s 2012 award, Mathews

cannot relitigate the issues of his claims that the City in discharging him

for his conduct following the collision violated Chapter 143 of the Local

Government Code. The City also argues that, based on this Court’s 2022

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judgment, Mathews also may not relitigate his claim that the City

breached the City’s collective bargaining agreement with the firefighter’s

union. According to the City, Mathews’ response to the City’s motion for

summary judgment reveals that Mathews is simply “attempt[ing] to

relitigate claims” in Trial Court Cause Number A-192,887-A (the severed

cause) that were resolved by final judgments previously rendered by state

and federal courts in the City’s favor.

The City argues that the claims in the severed cause have already

been finally resolved against Mathews for three reasons: (1) to support

his claims in the severed cause, Mathews’ response reveals that he relies

on evidence from the cases in which he did not prevail; (2) in the severed

cause, Mathews asked to be reinstated to his position as a firefighter and

to be paid back pay, remedies available only on the claims already

resolved by the hearing examiner for the City and affirmed in the final

judgment rendered in the appeal from Trial Court Cause Number A-

192,887; and (3) in the severed cause, Mathews argues that his

constitutional rights were violated under Chapter 143 and the collective

bargaining agreement between the City and the firefighters’ union, but

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those claims are foreclosed by the judgments previously rendered in prior

cases involving the City and Mathews in state and federal court. The City

concludes that because it established in its hybrid motion that all claims

in the severed cause are based on “the same nucleus of operative facts”

that were resolved against Mathews in other final judgments, the trial

court abused its discretion in failing to grant its hybrid motion.

The No-Evidence Motion

Turning to the City’s no-evidence motion, Rule 166a(i) of the Texas

Rules of Civil Procedure requires that a no-evidence motion specify the

element or elements of the plaintiff’s claim or defense on which there is

no evidence. Tex. R. Civ. P. 166a(i). The Texas Supreme Court strictly

enforces the requirements of this rule. Timpte Indus. Inc. v. Gish, 286

S.W.3d 306, 310-11 (Tex. 2009) (holding that a no-evidence motion must

specifically identify the challenged elements to satisfy Rule 166a(i));

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339-42 (Tex.

1993). Consequently, when a no-evidence motion fails to list the elements

of a claim it challenges and asserts that opposing party has no evidence

to support its claim, the motion is insufficient because the language in

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the no-evidence motion fails to identify the elements of the opposing

party’s claim or defense the no-evidence motion has challenged. Cmty.

Health Sys. Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671, 696 (Tex. 2017).

In its no-evidence motion, the City argued: “There is no evidence

supporting any of the claims, which evidence survive the preclusion

doctrines.” For that reason, the City’s motion doesn’t comply with the

requirements of Rule 166a(i) because it fails to identify the elements of

Mathews’ claims and defenses on which the City claimed Mathews had

no evidence. Consequently, on the record the City provided to this Court,

we can’t say the trial court abused its discretion in overruling the City’s

no-evidence motion. Furthermore, as to the City’s affirmative defenses,

the City doesn’t argue or explain why Mathews as the plaintiff in the case

would have had the burden of proof on the City’s affirmative defenses.

See Tex. R. Civ. P. 166a(i) (providing that a party may file a no-evidence

motion “on the ground that there is no evidence of one or more essential

elements of a claim or defense on which an adverse party would have the

burden of proof at trial”).

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The Traditional Part of the City’s Motion

As for the City’s traditional motion for summary judgment, our

review of the merits of the City’s argument isn’t possible on the

mandamus record the City provided to the Court. For example, the City

included Mathews’ response to City’s motion for summary judgment as

an appendix to its petition for mandamus. In its petition, the City relies

on the documents Mathews attached to his response to support its

argument that Mathews’ claims in the severed cause are based on the

same nucleus of operative facts the parties have litigated in federal court

(Civil Action Number 1:11CV268) and state court (Trial Court Cause

Number A-192,887). Yet the City omitted 18 of the 27 exhibits that

Mathews listed in his response to the City’s motion from documents it

references in the appendices it filed to support its petition for mandamus.

Simply put, the City has asked this Court to find the trial court abused

its discretion without providing the same record the trial court relied on

when it denied the City’s hybrid motion. That, it seems to us, is unfair.

It is also unclear from the mandamus record what petition the trial

court considered as Mathews’ live claims. The City moved for summary

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judgment on the claims in “Plaintiff’s First Original Petition.” But when

the trial court ruled on the City’s hybrid motion, the trial court may not

have considered that petition as the petition that contained Mathews’ live

claims. Here, the record shows that “Plaintiff’s First Original Petition”—

which Mathews filed on July 30, 2015, in Cause Number A-192,887—was

superseded when Mathews filed an amended pleading titled “Plaintiff’s

First Amended Original Petition” on July 7, 2016. See Tex. R. Civ. P. 65

(Amended Instrument); FKM P’ship, Ltd. v. Bd. of Regents of the Univ. of

Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008) (noting that generally,

amended pleadings “take the place of prior pleadings”).

So, when the trial court signed the order of severance in January

2018, the District Clerk should have placed a copy of Mathews’ live

pleading—not a pleading Mathews had abandoned—in the severed cause

so that the petition in the severed cause included the claims the trial

court had severed into the severed cause rather than a petition that

contained the claims Mathews had abandoned by amendment. Thus, it’s

possible the trial court could have found that the City didn’t move for

summary judgment on the petition that contained Mathews’ live claims

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and instead moved for summary judgment on a pleading that Mathews

had abandoned.

To be fair, on the mandamus record we have, we can’t be certain

that the District Clerk, Mathews, or the City was the party responsible

for filing “Plaintiff’s First Original Petition” in the severed cause. 6 At any

rate, the exhibits the City and Mathews filed to support their respective

positions on the City’s motion for summary judgment show that both

Plaintiff’s First Original Petition and Plaintiff’s First Amended Original

Petition were before the trial court when it ruled on the City’s hybrid

motion and that the City didn’t move for summary judgment on the

claims in Plaintiff’s First Amended Original Petition.

Since there are differences between the allegations in the two

petitions, the trial court could have also decided it mattered that the City

6Mathews’ response to the motion for summary judgment lists his

First Amended Original Petition as an exhibit to his response, but
Mathews’ First Amended Original Petition was not included in the
mandamus record that the City filed with this Court. Mathews’ summary
judgment response also mentions “Plaintiff’s Supplemental Original
Petition,” filed June 19, 2017, but as to that pleading, the mandamus
record before us doesn’t show if that supplemental petition was filed or if
it was superseded.
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didn’t move for summary judgment on Mathews’ live claims. In

“Plaintiff’s First Original Petition,” Mathews alleged the City unlawfully

deprived him of his property interest in his employment with the

Beaumont Fire Department based on the unlawful actions of City

officials and employees in violation of the due course of law provision of

the Texas Constitution. Without specifying the acts that he claimed

violated his rights, Mathews alleged that the City retaliated against him

in violation of his rights under the Texas Constitution to free speech, due

process, and due course of law. Referencing a federal civil rights lawsuit

that he had filed against the City and City officials, Mathews alleged that

he was denied his right to equal protection under the law. Mathews’ equal

protection claim alleges that several firefighters, whom Mathews named

and then referenced, the incidents in which these firefighters were

involved, had been treated more favorably than he was treated after

engaging in conduct that was “similar to or far more egregious than” what

he had done. In 2012, the federal district court dismissed the civil rights

suit involving Mathews, the City, the City’s Mayor, and several City

employees after the finding that Mathews’ petition failed to state a claim

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on which relief could be granted.7 In his prayer in his First Original

Petition, Mathews sought a declaratory judgment that he had been

unlawfully indefinitely suspended from his position as a firefighter,

attorney’s fees, and costs.

7See Mathews v. City of Beaumont, No. 1:11CV268, 2012 WL
12906090, at *1, 8 (E.D. Tex. Mar. 13, 2012); Fed. R. Civ. P. 12(b)(6). We
note that initially, Mathews’ civil rights suit was filed in the 172nd
District Court of Jefferson County, Texas, and assigned Trial Cause
Number E-189,911. In May 2011, the suit was removed from state court
to federal court. In the civil rights suit, Mathews claimed the City, the
City’s mayor, and several City employees violated his civil rights and
engaged in a conspiracy to interfere with his civil rights. See 42 U.S.C. §§
1983, 1985. In the federal court suit, Mathews alleged that the City and
City officials violated his rights under 42 U.S.C. section 1983 by
obtaining records improperly in violation of the Texas Open Records Act,
by distributing the records to one or more council members, and by
attempting to use the records during an arbitration proceeding. See
Mathews v. City of Beaumont, No. 1:11CV268, 2012 WL 12906090, at *1
(E.D. Tex. Mar. 13, 2012); see also City of Beaumont v. J.E.M., No. 09-10-
00537-CV, 2011 WL 3847392, at *4 (Tex. App.—Beaumont Aug. 31, 2011,
no pet.) (mem. op.) (reversing trial court and rendering judgment denying
petition for expunction). Mathews also alleged that the City and City
officials violated his rights under 42 U.S.C. section 1985 by firing him
from his position as a firefighter and engaging in conduct designed to
intimidate him or retaliate against him for filing the suit. Id. at *1, 7.
The federal district court held that Mathews failed to state a claim upon
which relief can be granted, denied leave to replead, and dismissed
Mathews’ suit. Id. at *8.
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Like his First Original Petition, Plaintiff’s First Amended Original

Petition also includes claims are tied to the Fire Chief’s decision to

indefinitely suspend (or to fire) Mathews. In the First Amended Original

Petition, Mathews alleged that City officials were looking for an

opportunity to retaliate against him due to his vocal and public support

of the Firefighters’ Union in a dispute between the union and the City

about a year before he was suspended. According to Mathews’ amended

petition, the City officials’ desire to retaliate against him was tied to a

“contentious contract fight/arbitration against the City,” which involved

negotiations over a union contract between the City and the local union

in charge of representing the City’s firefighters. 8

Mathews’ First Amended Original Petition also alleges that the

City’s attorneys made false and defamatory statements about Mathews

during the 2012 arbitration hearing, the hearing conducted before

Richard Dole. In his First Amended Original Petition, Mathews alleges

that the City’s decision to enforce Dole’s decision upholding the Fire

8See generally City of Beaumont v. Int’l Ass’n of Firefighters, Local

Union No. 399, 241 S.W.3d 208 (Tex. App.—Beaumont 2007, no pet.).
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Chief’s decision was motivated by the following: (1) Mathews’ exercise of

his right to free speech to advocate for a pay increase in the dispute that

involved the City and the local firefighter’s union; (2) his effort to protect

the public in 2008 from a driver involved in a collision who was driving

under the influence of a mind-altering substance; and (3) a desire of City

officials to retaliate against him for filing a federal civil rights suit

against the City and its officials over their use of documents in litigation

involving Mathews when the documents the City used in that litigation

had been expunged. Mathews’ First Amended Original Petition alleges

the City violated Mathews’ rights under the Texas Constitution’s equal

protection clause (Article I, sections 3 and 3a), free speech clause for

retaliation (Article I, section 8), and due process clause (Article I, section

19). In his prayer, Mathews asked the trial court to (1) declare that the

hearing examiner’s decision was procured by unlawful means, (2) to

declare that the hearing examiner exceeded his jurisdiction, (3) to sign

an order overturning his indefinite suspension, (4) to order the City to

restore him to his former position, (5) to order the City compensate him

for the time he lost because of his suspension, (6) to order the City to

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restore his other lost employment benefits that resulted from his

suspension, (7) or in the alternative to remand the case to an independent

hearing examiner for another ruling on his indefinite suspension, and (8)

to declare that the City had violated his rights to be free from being

terminated or indefinitely suspended from his employment “in violation

of his rights to equal protection, free speech, and deprivation of protected

property and or liberty interests without due process of law[.]”

We note that in the severed cause, the City counterclaimed against

Mathews, claiming that he owed the City money. The City moved for

summary judgment on its counterclaim, seeking to recover $66,581 in

wages and benefits that, according to the City, were paid to Mathews but

were not earned. The City doesn’t mention the counterclaim in its

petition for mandamus, yet it asks the Court to require the trial court to

grant the City’s motion for summary judgment.

“[M]andamus is generally unavailable when a trial court denies

summary judgment, no matter how meritorious the motion.” In re

McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465 (Tex. 2008) (orig.

proceeding). Even so, “that principle is not, and cannot be, absolute.” In

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re Academy, Ltd., 625 S.W.3d 19, 32 (Tex. 2021) (orig. proceeding). “We

determine whether an adequate appellate remedy exists by weighing the

benefits of mandamus review against the detriments.” Id. For example,

mandamus may be appropriate when a party has already endured one

trial and is facing a second trial on a claim that is barred. See In re United

Servs. Auto. Ass’n, 307 S.W.3d 299, 314 (Tex. 2010) (orig. proceeding).

Benefits vs. Detriments

One of the benefits of mandamus review is that based on his

allegations in the severed cause, Mathews’ primary theory under each of

his petitions is that he was illegally discharged. Yet Mathews litigated

issues surrounding his discharge in the appeal he filed under the

Municipal Service Act, which allows for arbitrating disputes involving

indefinite suspensions before a hearing examiner. The hearing examiner

who decided Mathews’ appeal upheld the City’s decision to fire Mathews

for cause. While Mathews challenged the hearing examiner’s ruling and

appealed the ruling to a district court, the legislature limited the right to

appeal to questions about the hearing examiner’s jurisdiction or to

grounds that the hearing examiner’s “order was procured by fraud,

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collusion, or other unlawful means.” Tex. Local Gov’t Code Ann. §

143.057(j). Ultimately, Mathews did not succeed in his appeal of the

hearing examiner’s order, as this Court held that based on the trial

conducted in the 60th District Court, the record established that the

hearing examiner had jurisdiction over Mathews’ appeal, that the

hearing examiner did not exceed his jurisdiction in resolving the issues

before him in the appeal, and that Mathews presented no evidence to

establish the hearing examiner’s award was procured through fraud,

collusion, or the use of other unlawful means. Mathews, 2022 WL 318586,

at *13.

As to Mathews’of claims that the City violated his constitutional

rights by retaliating against him and using records improperly in legal

proceedings and treated him disparately, he lost those claims in federal

court. A final judgment from a federal court (Civil Action Number

1:11CV268) dismissed those claims, claims in which he alleged that the

City and City officials violated his constitutional rights. These factors

and the final judgments in the City’s favor weigh in the City’s favor of

reviewing the petition on its merits at this time. The length of time this

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case has been in the courts also favors the City in whether we should

exercise jurisdiction and review the trial court’s ruling on the merits on

this record after considering that the legislature intended for a hearing

examiner’s decision over a fireman’s indefinite suspension to be final.

On the other hand, the detriments of reviewing the City’s request

for mandamus relief must be weighed against the benefits of review of

the matter. First, reviewing the matter now would at best only result in

a partial resolution of the dispute, a dispute that began in 2008 when the

City—simply put—fired Mathews. That’s because the City filed a

counterclaim, moved for summary judgment on its counterclaim, yet in

this proceeding the City doesn’t argue the trial court abused its discretion

by denying it summary-judgment relief. Other detriments are that the

City filed a defective no-evidence motion and an incomplete record to

support its petition for mandamus. Consequently, on this record we can’t

be sure the trial court didn’t deny the City’s traditional motion after

concluding the City failed to move for summary judgment on the claims

in Plaintiff’s First Amended Original Petition, the petition containing the

claims the trial court severed into the severed cause, Trial Court Cause

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Number A-192,887-A. We also can’t measure the trial court’s ruling on

the evidence that was before that court, and we can’t be sure that the

trial court didn’t conclude that the City failed to move for summary

judgment on the petition that stated Mathews’ live claims.

While the City’s frustration with the delays attendant to deciding

Mathews’ challenge to the City’s decision to fire him is understandable

given the lengthy period in which the parties have been litigating this

dispute, that doesn’t excuse the City’s failure to create a proper record to

support its petition for mandamus. On the record presented here, justice

would be better served by addressing the City’s issues on a proper record,

which in this case would be a record (1) that is created after the City files

a hybrid motion that complies with Rule 166a(i), (2) that allows the

reviewing court to determine what claims are the plaintiff’s live claims

in the severed cause, (3) that includes all the evidence the trial court

considered when it ruled on the City’s motion, and (4) that would finally

dispose of all the claims before the court.

On this record, we are unwilling to say the benefits of reviewing the

City’s petition now on a defective record outweigh the detriments of doing

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so for the reasons explained above. Accordingly, we lift the Court’s stay

of the trial-level proceedings and deny the City’s petition for mandamus

without regard to the petition’s merits. See Tex. R. App. P. 52.8(a).

PETITION DENIED.

PER CURIAM

Submitted on July 14, 2023
Opinion Delivered February 1, 2024

Before Golemon, C.J., Horton and Wright, JJ.

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