Opinion issued November 19, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00827-CV ——————————— BRAZORIA COUNTY, Appellant V. TRACY READ, Appellee
On Appeal from the 149th District Court Brazoria County, Texas Trial Court Case No. 118810-CV
MEMORANDUM OPINION
This is a whistleblower action. Appellee Tracy Read is a court bailiff in
Brazoria County, Texas. Read suspected the Brazoria County District Clerk was
manipulating the jury selection process, and he reported his suspicions to the district
judge in whose courtroom he served. Read claims that after he made this report, the judge stopped calling on him to serve as a bailiff, and he was “blackballed” from
serving as a bailiff in other district courts in Brazoria County. Read sued Brazoria
County, his employer. Read alleges the County took these adverse employment
actions against him in retaliation for his report in violation of the Texas
Whistleblower Act. See TEX. GOV’T CODE §§ 554.001–.010.
The County filed a plea to the jurisdiction. It argued that any adverse
employment actions Read suffered were taken by the district judge, a state official,
and not by the County, such that the County retains its governmental immunity. The
trial court denied the plea, and the County filed this interlocutory appeal.
We agree with the County. Because Read did not show that the County took
an adverse employment action against him, the County retains immunity. We reverse
and render judgment dismissing this suit with prejudice.
Background
Read began working for the County in 2009. There is no dispute he was a
County employee throughout the events giving rise to this case. The County issues
his paychecks and W-2s, gives him statutory raises, and maintains him on its
employee roster.
Read started with the County as a jailer in the Brazoria County Sheriff’s
Office. In 2018, he transferred out of the Sheriff’s Office and started working as a
district court bailiff. But the County does not assign bailiffs to courtrooms. Instead,
2 it establishes a pool of bailiffs, and each district judge chooses a bailiff from the
pool.
When he began working as a bailiff in 2018, Read served in the 412th Judicial
District Court. At the time, the 412th District Court was presided over by Judge Ed
Denman. Judge Denman retired later that year and was succeeded by elected Judge
Justin R. Gilbert. Judge Gilbert took the bench in January 2019. When he assumed
the bench, Judge Gilbert had sole discretion to ask any bailiff from the pool to serve
in his courtroom. He chose Read.
Read considered himself the bailiff of the 412th District Court, and he viewed
the district court judge as his boss. As Read saw things, he did not report to anyone
other than Judge Gilbert. But Judge Gilbert did not have the authority to hire or fire
Read, nor did he set Read’s salary or approve his vacation time. Judge Gilbert
controlled Read’s work activities only when Read was serving in his courtroom.
At some point during his tenure as Judge Gilbert’s bailiff, Read learned that
the Brazoria County District Clerk’s Office was segregating juror cards by race and
geography before distributing them to the district courts. Read decided to make a
complaint.
At the time he made the complaint in August 2021, Read’s wife was running
for the Office of the District Clerk. One of her opponents was the incumbent Deputy
Clerk. The parties disagree about the date on which Read discovered the irregular
3 way the District Clerk’s Office was preparing venire panels. Read contends he did
not confirm the irregularities until August 9, 2021. The County claims he knew about
the irregularities earlier but withheld the information until after his wife announced
her candidacy for District Clerk.
Read sought out Judge Denman, who had retired by this point, for advice on
how to proceed. On August 11, 2021, Read met with Judge Denman and told him
the District Clerk’s Office was segregating juror cards by race and geography. Judge
Denman advised Read to report the allegations to the Texas Rangers. But instead of
going to the Rangers, Read contacted Judge Gilbert. Read testified in a deposition
that he went to Judge Gilbert before contacting the Rangers because “I believe that
my judge who I work for . . . deserves the right to know.”
Read met with Judge Gilbert around August 17, 2021, and informed him of
the allegations that the District Clerk’s Office was engaging in jury tampering. Later
that day, Judge Gilbert notified the then-presiding judge, Judge Patrick Sebesta, who
in turn contacted the Brazoria County District Attorney. The District Attorney
requested the Texas Rangers investigate Read’s allegations.
Judge Gilbert decided to stop calling Read to serve as his courtroom bailiff
until the Rangers finished their investigation. He did so in part because he expected
that both he and Read would be subpoenaed to testify before a grand jury. He also
“lost confidence” and “lost trust” in Read because he did not believe he was “getting
4 the full story from [Read] as to when he knew about th[e] jury issue.” And when the
Rangers later issued a report on their investigation, Judge Gilbert understood it to
suggest Read may have known of the irregularities in the District Clerk’s Office long
before he reported them. The report thus confirmed for Judge Gilbert that he did not
want Read to serve as his bailiff. The last day Read served as a bailiff in Judge
Gilbert’s courtroom was August 26, 2021. Judge Gilbert testified in a deposition that
he “made the decision not to have [Read] come to work in [the 412th District Court]
anymore,” but Read “could go and bailiff in any other court he wanted to.”
Read disputes this. He contends that in addition to not being called to serve as
a bailiff in Judge Gilbert’s courtroom, he has been “blackballed,” i.e., “he has been
prevented from working as a bailiff” in the Brazoria County district courts “since
December 2021.” However, Read also testified he was unaware of any evidence that
any County employee or official interfered with his ability to serve as a bailiff. He
agreed Judge Gilbert was “the ultimate decision maker” on his service as a bailiff in
the 412th District Court.
Although Judge Gilbert has not called Read to serve as bailiff since 2021, and
Read contends he has not served as bailiff in any other Brazoria County district court
since 2021, the parties agree the County has not fired Read. Read remains on the
County’s payroll budget, and he received statutory raises in 2021 and 2022.
5 Read sued the County, alleging it retaliated against him by taking adverse
employment actions against him that violated the Texas Whistleblower Act. The
County filed a plea to the jurisdiction, arguing that any adverse employment actions
were taken by Judge Gilbert, a State employee, and not the County.
After a hearing, the trial court denied the County’s plea, concluding the
evidence showed the County ultimately controlled the conditions of Read’s work
environment. The trial court reasoned that the district judges’ discretion to choose
the bailiffs serving their courtrooms was of “no consequence” because the County
“runs the assignment of work” and “maintains control over the employee’s work,”
such that the County remains “liable for the wrongful conduct of its non-employees.”
This appeal followed.
Analysis
In a single point of error, the County contends the trial court erred in denying
its plea to the jurisdiction. It argues that Read’s ability to make a claim under the
Texas Whistleblower Act depends on his ability to show that his employer—the
County—took an adverse employment action against him in retaliation for reporting
a violation of the law. But because the only alleged adverse actions taken against
Read were taken by Judge Gilbert, an elected official of the State of Texas, and not
the County, Read cannot state a claim under the Act. And because he cannot state a
6 claim, Read’s suit does not fall within the Act’s waiver of governmental immunity,
such that the trial court lacks subject matter jurisdiction.
I. Standard of Review.
The existence of subject matter jurisdiction is a question of law that we review
de novo review. See Anderson v. Bessman, 365 S.W.3d 119, 123 (Tex. App.—
Houston [1st Dist.] 2011, no pet.). A jurisdictional challenge based on governmental
immunity may be brought in a plea to the jurisdiction. See City of Hous. v.
Downstream Envt’l., 444 S.W.3d 24, 31 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied).
A plea to the jurisdiction can challenge the sufficiency of the jurisdictional
facts pleaded in the petition, or it can challenge the existence of jurisdictional facts.
See City of Hous. v. Nicolai, 539 S.W.3d 378, 385 (Tex. App.—Houston [1st Dist.]
2017, pet. denied). Here, the County’s plea challenges the existence of a
jurisdictional fact, namely, whether the County took adverse action against Read in
retaliation for reporting irregularities in the District Clerk’s Office.
Because the County’s plea challenges the existence of jurisdictional facts, we
consider both the pleadings and any evidence relevant to the jurisdictional issues
raised by the parties. See Lenoir v. U.T. Physicians, 491 S.W.3d 68, 76 (Tex. App.—
Houston [1st Dist.] 2016, pet. denied). If the evidence raises a fact question as to the
jurisdictional issue, then the plea must be denied, and a factfinder must resolve the
7 issue. See Nicolai, 539 S.W.3d at 386; Lenoir, 491 S.W.3d at 76. But if the evidence
is conclusive, or if it does not raise a fact question about the jurisdictional issue, then
we decide the jurisdictional issue as a matter of law. See Lenoir, 491 S.W.3d at 76.
Conclusive evidence includes undisputed evidence that solely permits one logical
conclusion, evidence that is admittedly true, and evidence that is conclusively
disproved. See id.
The standard of review governing pleas that challenge the existence of
jurisdictional facts mirrors the one for summary judgment. See id. The County bears
the burden to present conclusive evidence that the trial court lacks jurisdiction; if the
County carries that burden, then Read must present evidence sufficient to raise a fact
issue. See Nicolai, 539 S.W.3d at 386. We must accept as true all evidence favorable
to Read, indulging every reasonable inference and resolving any doubts in his favor.
See Lenoir, 491 S.W.3d at 76–77.
II. The Whistleblower Act and Governmental Immunity.
The County’s plea was based on governmental immunity. Governmental
immunity is derived from sovereign immunity. See City of Hous. v. Williams, 353
S.W.3d 128, 134 (Tex. 2011). “Sovereign immunity protects the State from lawsuits
for money damages,” Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d
849, 853 (Tex. 2002), while governmental immunity protects the State’s political
subdivisions, including counties, from suit and liability unless the legislature has
8 waived that immunity. See Harris Cnty. v. Annab, 547 S.W.3d 609, 613 (Tex. 2018).
Any legislative waiver of a county’s immunity must be “‘clear and unambiguous,’”
and we construe such statutory waivers “narrowly.” Mission Consol. Indep. Sch.
Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008) (citing TEX. GOV’T CODE
§ 311.034).
In the absence of a waiver, governmental immunity deprives a trial court of
subject matter jurisdiction over lawsuits in which the County has been sued. Id.
Subject matter jurisdiction is essential to a court’s authority to decide a case, see Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993), and the
plaintiff bears the initial burden to affirmatively show the trial court’s jurisdiction.
See Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019).
Here, Read sued under the Texas Whistleblower Act (“TWA” or the “Act”).
See TEX. GOV’T CODE §§ 554.001–.010. He alleges the County violated the Act’s
anti-retaliation provision, which states,
A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.
Id. § 554.002(a).
The Act also contains an express but limited waiver of governmental
immunity: “A public employee who alleges a violation of this chapter may sue the
9 employing state or local governmental entity for the relief provided by this chapter.
Sovereign immunity is waived and abolished to the extent of liability for the relief
allowed under this chapter for a violation of this chapter.” Id. § 554.0035.
“[I]t necessarily follows from this language that [Read] must actually allege a
violation of the Act for there to be a waiver from suit. Therefore, the elements under
section 554.002(a) must be considered in order to ascertain what constitutes a
violation, and whether that violation has actually been alleged.” State v. Lueck, 290
S.W.3d 876, 881 (Tex. 2009). This means the elements of a whistleblower claim
under section 554.002(a) are themselves “jurisdictional facts necessary for
determining whether [Read’s] claim falls within the jurisdictional confines of section
554.0035.” City of Fort Worth v. Prigden, 653 S.W.3d 176, 182 (Tex. 2022) (citation
and internal quotation marks omitted)). In other words, to determine whether Read’s
suit falls within section 554.0035’s immunity waiver, we consider whether Read
raised a genuine issue of material fact as to each element of his retaliation claim
under section 554.002(a). See Lueck, 290 S.W.3d at 882.
III. The County Has Immunity Because Read Cannot Establish the Elements of a Retaliation Claim.
The elements of a retaliation claim under section 554.002(a) are: “(1) that the
plaintiff was a public employee (2) that the defendant was a state agency or local
government (3) that the plaintiff reported in good faith a violation of law (4) to an
appropriate law enforcement agency and (5) that the plaintiff’s report was the but- 10 for cause of the defendant’s suspending, firing, or otherwise discriminating against
the plaintiff at the time the defendant took that action.” Guillaume v. City of
Greenville, 247 S.W.3d 457, 461 (Tex App.—Dallas 2008, no pet.) (emphasis
added) (citing TEX. GOV’T CODE § 554.002(a)).
The County’s plea focuses on the fifth element. The County contends that to
make a claim under the Act, a plaintiff must show that his government employer took
an adverse personnel action against him. And Read does not dispute this
requirement; his brief frames this element as requiring a showing that “the employer
took an adverse employment action against the employee because the employee
made the report.” The parties thus agree that a viable retaliation claim under the Act
requires a plaintiff to establish that his employer took the adverse personnel action.
This narrows the issue before us. The County does not dispute that adverse
actions were taken against Read; instead, its argument is that any adverse actions
were taken by someone other than the County. And the only adverse actions about
which Read complains are that: (1) he has not been called to serve as a bailiff in
Judge Gilbert’s courtroom; and (2) he has been “blackballed” from serving as a
bailiff in other district courts in Brazoria County. Read attributes both of those
actions solely to Judge Gilbert, and he admits he has no evidence suggesting that any
County employee or official interfered with his ability to find work as a bailiff. The
11 question before us is thus whether Judge Gilbert’s actions or inactions can be
imputed to the County for purposes of the Act.1
A. Judge Gilbert’s Actions Cannot Be Imputed to the County.
Read contends we should treat the County as his employer for purposes of the
alleged retaliatory acts because the County was responsible for the terms and
conditions of his employment as a bailiff. Read’s argument turns on the idea that the
County exercises enough control over the conditions of his service as a bailiff that
the County should be held liable for Judge Gilbert’s allegedly retaliatory conduct,
even though Judge Gilbert is a State employee who does not employ Read. We
disagree that Judge Gilbert’s actions can be imputed to the County.
Texas law gives control of the selection and service of bailiffs to district
judges. A bailiff “holds office at the will of the judge of the court that the bailiff or
grand jury bailiff serves,” TEX. GOV’T CODE § 53.005, and acts “under the direction
of the court.” TEX. CODE CRIM. PROC. art. 36.24. As a matter of law, the County had
no control over Judge Gilbert’s courtroom proceedings, including his decision to call
or not call Read to serve as a bailiff in his courtroom.
The record also supports this conclusion. Judge Gilbert testified that he alone
decides which bailiff to call to his courtroom, and that he alone decided not to call
1 We express no opinion on whether Read has established any other element of a retaliation claim under the Act. 12 Read because he had “lost confidence” in him. Likewise, Read testified that he
considered Judge Gilbert to be his boss and the only person to whom he answered
on courtroom proceedings, and that Judge Gilbert exercised supervisory control over
him in the courtroom. Read offered no evidence that Judge Gilbert was influenced
by someone else to stop calling on Read. Read also offered no evidence that the
County influenced or persuaded other judges to not call him to serve, or even
evidence that he attempted to serve in other Brazoria County district courts but was
refused.
The decision to stop calling Read as a bailiff in the 412th District Court was
made solely by Judge Gilbert. It was not a decision made, or even influenced, by the
County. And the County likewise has no control over Judge Read’s or any other
district judge’s decision to call or not call Read to serve as a bailiff. For the same
reasons Judge Gilbert has the authority to decide who will serve as a bailiff in his
courtroom and for how long, other district judges in Brazoria County have that same
authority. See TEX. GOV’T CODE § 53.005; TEX. CODE CRIM. PROC. art. 36.24.
Therefore, there is no evidence the County controlled the terms of Read’s service as
a bailiff in Judge Gilbert’s courtroom, or in any other district court.
Indeed, courts that have considered the issue have concluded that district
judges have sole control not just over bailiffs but also other courtroom personnel.
Although not squarely on point here (because the appointment of other personnel is
13 often governed by statutes not applicable to bailiffs), this line of cases is instructive.
For example, in Bloom v. Bexar County, the Fifth Circuit held that a county was not
a court reporter’s employer for purposes of the Americans with Disabilities Act
because court reporters are subject to the sole control and serve at the pleasure of
district judges, such that “Bexar County had no right to control the means and
manner of Bloom’s performance.” 130 F.3d 722, 726 (5th Cir. 1997). In Clark v.
Young, the Fort Worth Court of Appeals held that a court coordinator served at the
pleasure of the district judge and thus could be terminated by the judge without
cause, notice, or hearing. 787 S.W.2d 166, 168 (Tex. App.—Fort Worth 1990, pet.
denied). And in Desantiago v. West Texas Cmty. Supervision & Corr. Dep’t, the El
Paso Court of Appeals held that district judges have ultimate control over personnel
decisions concerning probation officers. 203 S.W.3d 387, 397 (Tex. App.—El Paso,
no pet.). While not dispositive, these cases support the proposition that district
judges have control over their courtroom personnel, and thus that Judge Gilbert, and
not the County, had control over Read’s service as a bailiff and his work
environment.
Both Read and the trial court rely on Lockard v. Pizza Hut, 162 F.3d 1062
(10th Cir. 1998), to support a contrary conclusion. That reliance is misplaced.
Lockard arose out of a situation in which a waitress was harassed by unruly
customers. See id. at 1072. The restaurant’s manager had several options for dealing
14 with the customers but failed to act, resulting in a hostile work environment for the
waitress. See id. at 1073–75. The Tenth Circuit concluded the restaurant could be
liable under Title VII for the customers’ behavior under a hostile work environment
theory, notwithstanding that the customers were neither agents nor employees,
because the restaurant “ultimately controls the conditions of the work environment.”
See id.
Here, the trial court’s order denying the County’s plea concluded that “[t]his
case is no different” than Lockard. It reasoned that “the County ultimately
controls/ed the conditions of [Read’s] work environment,” meaning it “became
liable for [the work environment] when it condoned [Judge Gilbert’s] conduct and
subjected its employee to it.”
This application of Lockard extends too far. Aside from the fact that this is
not a Title VII action or one involving a hostile work environment claim, one basis
for the Tenth Circuit’s holding was that the restaurant manager in Lockard had the
explicit authority to ask the customers to either stop their offensive behavior or leave.
See id. at 1074. The County had no analogous option here. Judge Gilbert had the
sole authority and discretion to select the bailiff to serve in his courtroom and to end
the bailiff’s service. See TEX. GOV’T CODE § 53.005; TEX. CODE CRIM. PROC. art.
36.24. The County had no ability to control those decisions, and it could not ask
Judge Gilbert to step down from the bench or to recall Read as his bailiff in the same
15 way that a restaurant manager can ask unruly customers to leave. The record does
not show that the County “condone[d]” any action or inaction by Judge Gilbert or
any other district court judge, or that it “subjected” Read to anything Judge Gilbert
did or failed to do. Therefore, Lockard does not support the conclusion that the
County can be held liable for the actions of a State district judge.
Read’s reliance on Delgado v. Jim Wells Cnty., 82 S.W.3d 640 (Tex. App.—
San Antonio 2002, no pet.), is equally unavailing. Like this case, Delgado involved
a bailiff who made a whistleblower claim against the county that employed him after
a State district judge terminated his service as a bailiff. See id. at 641. The trial court
granted the county’s no evidence motion for summary judgment, and the San
Antonio Court of Appeals affirmed. See id. at 640.
Read contends the Delgado court “assumed that the judge’s termination of the
bailiff’s employment was attributable to the county.” But the opinion contains no
support for that contention and no indication the court of appeals made any such
assumption. To the contrary, the court of appeals affirmed summary judgment for
the county based on the bailiff’s failure to establish the “report” element of a
whistleblower claim, which is not at issue here. See id. at 643 (“We agree with the
county. There is no evidence raising a fact issue regarding whether Delgado reported
a violation of law to law enforcement.”). Delgado does not suggest a district judge’s
16 decision about the service of a bailiff in his courtroom can be attributed to the
bailiff’s county employer, nor does it support the position Read takes here.
Because the County had no control over the decisions of Brazoria County
district judges, including Judge Gilbert, about whom to call or not call to serve as
bailiffs, those decisions cannot be imputed to the County. Moreover, there is no
evidence that the County influenced Judge Gilbert or any other judge to not call Read
to serve as bailiff. As a result, Read has failed to raise a genuine issue of material
fact on the final element of his whistleblower claim, requiring that his employer take
retaliatory action against him. See TEX. GOV’T CODE § 54.002(a). The trial court
erred in denying the County’s plea.
B. Judge Gilbert Did Not Act as the County’s Agent.
Read also contends the County can be held liable for Judge Gilbert’s actions
because Judge Gilbert’s “functioning is county-based.” This argument appears to
rely on an agency theory under which Judge Gilbert acts as an agent of the County.
But any such contention conflates a judicial district’s geographical borders with a
county’s existence as a unit of government and political subdivision of the State, see,
e.g., TEX. CIV. PRAC. & REM. CODE §101.001(3)(B), and it is contradicted by the
laws establishing the Texas district courts.
The Texas Constitution divides the State into judicial districts, each of which
is served by one or more judges. See TEX. CONST. art. V, § 7(a) (“The State shall be
17 divided into judicial districts, with each having one or more Judges as may be
provided by law or by this Constitution.”). The judicial districts are thus a part of the
court system of the State of Texas; they are not a component of the government of
the counties in which they sit. See id.
Judicial districts are created when the legislature, the Judicial Districts Board,
or the Legislative Redistricting Board defines their geographical boundaries. See
id. § 7a(i). The legislature has drawn the judicial districts to follow county lines, but
there is nothing in the Texas Constitution that requires it. In other words, the fact
that a judicial district shares its borders with those of a county does not mean the
judicial district is a part of the county’s government; it means only that the legislature
defined the judicial district’s borders to run along the county’s borders, presumably
because using the county borders made sense. But each judicial district nevertheless
remains a part of the State’s judicial system; they are not within a county’s
government.
Here, the legislature has defined the 412th Judicial District, the judicial district
in which Read worked, as being “composed of Brazoria County.” TEX. GOV’T CODE
§ 24.556. The geographical borders of the 412th Judicial District are thus
coterminous with those of the County. But that does not mean the 412th Judicial
District is a part of the County; it means only that they share one another’s borders.
18 State district judges are a part of this statewide judicial system. See TEX.
CONST. art. V, § 7(a); Walker v. Hartman, No. 09-19-00061-CV, 2020 WL 1465973,
at *6 (Tex. App.—Beaumont Mar. 26, 2020, no pet.) (mem. op.) (“As a district
judge, Walker is employed by the State of Texas, not Jefferson County.”); accord
Bloom, 130 F.3d at 725 (“[S]tate judges are elected officials of the State of Texas
and are not agents, officials, or employees of the county.” (citing TEX. CONST. art.
V, § 7(a)); In re Wice, 668 S.W.3d 662, 676 (Tex. Crim. App. 2023) (“Under the
Texas Constitution, elected district judges have the ability to serve state-wide when
properly requested.”). As with judicial districts, district judges are a part of the court
system of the State of Texas rather than the governments of the counties in which
their courts are located. Neither Judge Gilbert nor the 412th Judicial District is a part
of the County’s governmental structure, and thus their actions or failures to act in
selecting bailiffs are not taken as agents of the County.
The cases upon which Read relies to support his agency theory are inapposite.
He contends Judge Gilbert is an agent of the County because “[e]lected officials
have repeatedly been found to be agents of the county in which they operate.” To be
sure, elected officials of a county can be agents of that county, and the cases Read
cites support that proposition. See Davis v. Ector Cnty., Texas, 40 F.3d 777, 784 (5th
Cir. 1994) (Ector County District Attorney was a “county official”); Dall. Cnty. v.
Gonzales, 183 S.W.3d 94, 101 (Tex. App.—Dallas 2006) (actions of county
19 constable could be attributed to county). But here, Judge Gilbert is an elected official
of the State of Texas, not the County, and thus he did not act as an agent for or on
behalf of the County. Accordingly, we affirm the County’s sole point of error.
C. Read’s Claims Must Be Dismissed With Prejudice.
Having concluded the trial court erred in denying the County’s plea to the
jurisdiction, we next consider whether we must render judgment dismissing Read’s
claims or remand and allow him to replead. “[S]o long as [a plaintiff’s] pleading
does not affirmatively demonstrate the absence of jurisdiction, they should be given
an opportunity to amend.” Dohlen v. City of San Antonio, 643 S.W.3d 387, 397 (Tex.
2022). But where a party’s pleadings “affirmatively negate jurisdiction,” the
appropriate remedy is to render a judgment dismissing the claim. See Lueck, 290
S.W.3d at 885–86 (dismissing whistleblower claim with prejudice because
plaintiff’s pleadings showed he could not establish the “report” element of a
whistleblower claim and thus affirmatively negated jurisdiction).
Read’s claim falls into the latter category of those that “affirmatively negate
jurisdiction.” Id. Read ultimately points to no action or omission by the County that
constitutes an adverse action taken in response to his report of irregularities in jury
venire selection. Read concedes the County has not fired him, and he admits he has
no evidence to suggest any County official or employee interfered with his ability to
find work as a bailiff. Instead, Read relies solely on Judge Gilbert’s actions as the
20 basis for his retaliation claim. Read argues in his brief that he “was dismissed by
Judge Gilbert” and that “Judge Gilbert terminated him,” and Read testified during
his deposition that “[e]verything lies with [Judge] Gilbert.” But a retaliation claim
under the Act requires that the adverse action be taken by Read’s employer, see TEX.
GOV’T CODE § 552.002(a), and Judge Gilbert was not Read’s employer. The County
is. And as Judge Gilbert is an elected official of the State of Texas whose decisions
about courtroom personnel are not subject to the County’s control, his actions cannot
be imputed to the County.
Because Read has not shown that his employer—the County—took an
adverse action against him, he has not raised an issue of a material fact with regards
to that element of a retaliation claim under the Act. See TEX. GOV’T CODE
§ 54.002(a); Lueck, 290 S.W.3d at 882. And because he has not raised a material
issue of fact on each element of his claim, Read’s case does not fall within the Act’s
immunity waiver. See TEX. GOV’T CODE § 554.0035; Prigden, 653 S.W.3d at 182.
His suit is thus barred by governmental immunity, the trial court lacks subject matter
jurisdiction over it, and his pleadings “affirmatively negate jurisdiction.” Lueck, 290
S.W.3d 876, 885–86. Therefore, Read’s claims must be dismissed with prejudice.
21 Conclusion
We reverse the trial court’s order denying the County’s plea to the jurisdiction,
and we render judgment dismissing Read’s claims against the County with prejudice.
Sarah Beth Landau Justice
Panel consists of Justices Kelly, Landau, and Rivas-Molloy.