City of Buffalo and Jerrod Jones v. Gregory Moliere

Supreme Court of Texas
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No. 23-0933
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City of Buffalo and Jerrod Jones,
Petitioners,

v.

Gregory Moliere,
Respondent

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On Petition for Review from the
Court of Appeals for the Tenth District of Texas
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PER CURIAM

The Buffalo City Council voted to terminate the employment of a
police officer who violated police department policy. The officer,
believing the City Council lacked authority to fire him, sued. The trial
court dismissed the suit, but the court of appeals reversed and
remanded, concluding that a fact issue existed as to whether the City
Council had authority to terminate the officer. The question of whether
the City’s governing body had authority to fire the officer is a question
of law that we answer in favor of the City Council. We therefore grant
the petition for review and reverse the court of appeals’ judgment. But
because the court of appeals did not address whether the officer alleged
a valid due process claim against the members of the City Council, we
remand the case to that court for further proceedings.
I
Gregory Moliere worked as a police officer with the City of Buffalo
Police Department. Although department policies prohibited doing so,
Moliere engaged in a high-speed chase while a civilian was riding along
in his patrol vehicle. The chase resulted in an accident that damaged
the patrol vehicle. Moliere reported the accident to the City’s Chief of
Police, who issued Moliere a written reprimand. Moliere did not appeal
the reprimand; he accepted and signed it.
About two weeks later, during a regularly scheduled meeting, the
City Council met in closed session to discuss Moliere’s employment. The
City Council then reconvened in open session and voted to terminate
Moliere.
Moliere sued, seeking a declaration that the City Council acted
without authority and a judgment compelling his reinstatement. In
addition, Moliere alleged that the City Council’s action “deprived his
limited due process” under the City’s policies and procedures.1 Moliere’s
live petition named as defendants the City of Buffalo; the City’s mayor,
Jerrod Jones; and the members of the City Council in their official and
individual capacities. The City Council members apparently were never

1 Moliere also alleged that the defendants “intentionally and knowingly

acted without statutory or legal authority to wrongfully terminate (interfere
with) the employment relationship existing between the Buffalo Police
Department and [Moliere].” To the extent this allegation states a separate
claim for tortious interference (or something else), Moliere did not appeal its
dismissal.

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served and never appeared in the trial court. But the City and Jones
answered and filed a combined plea to the jurisdiction and motion for
summary judgment. The trial court granted the combined plea and
motion and dismissed all claims against the City and Jones.
Additionally, finding that the City Council had authority to terminate
Moliere, the trial court sua sponte dismissed Moliere’s claims against
the City Council members for want of jurisdiction and rendered a final
judgment that Moliere take nothing.
Moliere appealed, and a divided court of appeals reversed.
___ S.W.3d ___, 2023 WL 6307992, at *7 (Tex. App.—Waco Sept. 28,
2023). The court held that a fact issue existed as to whether the City
Council had authority to fire Moliere. The court noted that, although
the City Council passed an ordinance providing that “City Council shall
approve the appointment/hiring of all city police officers,” it had not
passed an ordinance expressly addressing the “termination” of those
officers. Id. at *5. The court then concluded the City’s employee manual
and the police department’s policy-and-procedure manual were
ambiguous regarding the City Council’s authority to terminate police
officers. Id. at *6-7. The court thus remanded the case to the trial court
for further proceedings, id. at *7, without addressing Moliere’s distinct
contention on appeal that he asserted a valid claim for violation of his
due process rights. The City and Jones petitioned for review.
II
The City of Buffalo is a Type A general-law municipality. See
TEX. LOC. GOV’T CODE §§ 5.001-.005 (distinguishing between Type A, B,
and C general-law municipalities, home-rule municipalities, and

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special-law municipalities). General-law municipalities “are political
subdivisions created by the State and, as such, possess [only] those
powers and privileges that the State expressly confers upon them.”
Town of Lakewood Village v. Bizios, 493 S.W.3d 527, 531 (Tex. 2016)
(alteration in original) (quoting Tex. Dep’t of Transp. v. City of Sunset
Valley, 146 S.W.3d 637, 645 (Tex. 2004)). Most of those powers are
granted through various provisions in the Local Government Code. See
id.
Local Government Code Section 341.001 governs the creation and
regulation of the City’s municipal police force. Relevant here, that
statute states:
(a) The governing body of a Type A general-law
municipality may establish and regulate a municipal police
force.
(b) The governing body by ordinance may provide for
the appointment of police officers the governing body
considers necessary and for the terms of office and
qualifications of the officers.
(c) The governing body by ordinance may provide that
the police officers serve at the pleasure of the governing
body.
TEX. LOC. GOV’T CODE § 341.001(a)-(c). The parties agree that the City
Council is the governing body of the City of Buffalo. See TEX. GOV’T
CODE § 312.011(4) (“‘Governing body,’ if used with reference to a
municipality, means the legislative body of a city, town, or village,
without regard to the name or title given to any particular body.”). Thus,
Section 341.001(a) unquestionably establishes the City Council’s
authority to “establish and regulate” the City’s police force. And
subsections (b) and (c), together with the ordinance requiring the City

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Council’s approval of the hiring of all officers, confirm more specifically
the City Council’s authority to supervise officer hiring and employment
requirements.
The City of Buffalo and its officials enjoy governmental immunity,
a form of sovereign immunity, which protects them from lawsuits and
liability for money damages. See Mission Consol. Indep. Sch. Dist. v.
Garcia, 253 S.W.3d 653, 655 n.2 (Tex. 2008) (“Sovereign immunity
protects the State, state agencies, and their officers, while governmental
immunity protects subdivisions of the State, including municipalities
and school districts. However, both types of immunity afford the same
degree of protection . . . .” (citation omitted)). But governmental
immunity is not implicated if a party properly pleads an ultra vires
claim against government actors in their official capacities. See City of
El Paso v. Heinrich, 284 S.W.3d 366, 373-74 (Tex. 2009). A valid ultra
vires claim alleges that government officials—in this case, the
individual members of the City Council—acted outside their authority.
Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 161
(Tex. 2016); see also Heinrich, 284 S.W.3d at 372 (concluding that to
state an ultra vires claim, “a suit must not complain of a government
officer’s exercise of discretion, but rather must allege, and ultimately
prove, that the officer acted without legal authority or failed to perform
a purely ministerial act”).
III
Moliere argues that the City Council lacks authority to terminate
a police officer because, under his theory, the police chief is the only
person authorized to hire or fire a police officer unless and until the City

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Council adopts an ordinance giving itself the authority to do so. And
Moliere contends no statute or ordinance authorizes the City Council to
terminate his employment. We disagree. Moliere’s reading of Local
Government Code Section 341.001 would vitiate the City Council’s
express authority to “regulate” the police force, as that term is defined
both now and at the time this statute was enacted. See Regulate,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (2002) (defining
“regulate” as “to govern or direct according to rule”); Regulate, BLACK’S
LAW DICTIONARY (1st ed. 1891) (“The power to regulate . . . is the power
to prescribe the rules by which it shall be governed, that is, the
conditions upon which it shall be conducted . . . .”). And it largely
ignores the import of subsections (b) and (c), which emphasize that the
Legislature delegated to the City Council authority to oversee the
particulars of officer hiring and conditions of employment.
Take Section 341.001(a). It confers upon the City Council the
power to “establish and regulate a municipal police force.” TEX. LOC.
GOV’T CODE § 341.001(a). We have held that an express legislative grant
of authority confers implied powers reasonably necessary to carry out
the conduct expressly authorized. See Hartzell v. S.O., 672 S.W.3d 304,
311-12 (Tex. 2023) (holding that state agencies can exercise powers
“expressly conferred upon [them] and those implied powers that are
reasonably necessary to carry out [their] statutory duties” (alterations
in original) (quoting Tex. State Bd. of Exam’rs of Marriage & Fam.
Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 33 (Tex. 2017))); Pub. Util.
Comm’n v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 315 (Tex.
2001) (“[A]n agency may also have implied powers that are reasonably

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necessary to carry out the express responsibilities given to it by the
Legislature.”). Here, the authority to terminate a police officer could
reasonably be implied from Section 341.001(a)’s express grant of power
to “regulate” the police force. Subsections (b) and (c) further illuminate
the point. Whereas subsection (a) grants the City Council general
powers to “establish and regulate” the police force, subsections (b)
and (c) enumerate some particulars the City Council may dictate,
including the police force’s size, the officers’ necessary qualifications,
and the terms for and on which officers may be employed.
Like Moliere, the court of appeals concluded that the City Council
lacked authority to fire police officers unless it had passed an ordinance
under subsection (c) that specifically authorized “termination.” This
was a misreading of subsection (c), which on its face does not apply to
all terminations. Instead, a municipality that adopts an ordinance
authorized by subsection (c) may fire officers without cause or for any
reason at all (or, at least, any reason not otherwise prohibited by law)—
that is what it means to “serve at the pleasure of the governing body.”
TEX. LOC. GOV’T CODE § 341.001(c). Even assuming that a municipality
may not fire officers without cause absent an ordinance under
subsection (c), it hardly follows that a termination for cause is similarly
restricted. To the contrary, firing an officer because he has violated
official policy or otherwise has demonstrated a performance-related
deficiency is necessarily part of subsection (a)’s express authorization of
“regulat[ing] a municipal police force.” Id. § 341.001(a). Authority to
fire officers without cause requires different power, and that is what
subsection (c) provides.

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Considering the whole of Section 341.001, together with the
ordinance requiring the City Council’s approval of the
appointment/hiring of all city police officers, we conclude the City
Council was authorized to terminate Moliere’s employment. We hold
that the court of appeals erred in requiring a more particular grant of
authority than the one already plainly present in the statute and in
concluding that there was a fact issue as to whether the City Council
had authority to terminate Moliere. Moliere cannot dispute that he had
been subjected to discipline for conduct that could have exposed the
municipality to substantial liability; he did not contest it. At least under
Section 341.001, the City Council had the authority to respond as it did.
Because the City Council had authority to terminate Moliere,
Moliere has not properly pleaded an ultra vires claim. The trial court
therefore properly dismissed Moliere’s claim based on the City Council
members’ governmental immunity. See Heinrich, 284 S.W.3d at 372.
We reverse the court of appeals’ judgment and reinstate the trial court’s
judgment dismissing Moliere’s claims against all defendants to the
extent those claims are based on an alleged lack of authority to fire
Moliere.
IV
We agree with the trial court’s conclusion that the City Council
had authority to terminate Moliere and, therefore, voting to fire Moliere
was not itself an ultra vires act on the part of any individual City Council
member. The City Council was authorized to, and did, terminate
Moliere for his undisputed violation of city policy. But Moliere
separately asserted that the City Council violated his due process rights

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by failing to follow the disciplinary procedures in the police department’s
policy manual as well as the statutory process governing complaints
against law enforcement officers. See TEX. GOV’T CODE §§ 614.021-.023
(outlining certain procedures for handling complaints against police
officers); see also Chambers-Liberty Cntys. Navigation Dist. v. State,
575 S.W.3d 339, 348 (Tex. 2019) (“[G]overnmental immunity does not
bar a suit that seeks to bring government officials into compliance with
statutory or constitutional provisions.”).
The trial court dismissed all of Moliere’s claims, including his due
process claim, and Moliere separately complained of the dismissal of
that claim on appeal. But the court of appeals did not reach that issue.
We therefore remand this case to the court of appeals for further
proceedings with respect to Moliere’s due process claim. See Rattray v.
City of Brownsville, 662 S.W.3d 860, 869-70 (Tex. 2023) (“[A]s a
prudential matter, the law is typically better served when the lower
courts review a legal issue before this Court does.”).
V
For the foregoing reasons, and without hearing oral argument, see
TEX. R. APP. P. 59.1, we grant the petition for review, reverse the
judgment of the court of appeals, and remand the case to the court of
appeals for further proceedings.

OPINION DELIVERED: December 13, 2024

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