Neighborhood Centers Inc. v. Doreatha Walker
Opinion
ACCEPTED
01-14-00844-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/25/2015 11:47:32 AM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00844-CV FILED IN 1st COURT OF APPEALS
HOUSTON, TEXAS
9/25/2015 11:47:32 AM
IN THE FIRST COURT OF APPEALS CHRISTOPHER A. PRINE Clerk
HOUSTON, TEXAS
NEIGHBORHOOD CENTERS INC.
Appellant
V.
DOREATHA WALKER
Appellee
On appeal from the 80th Judicial District Court of Harris County, Texas Cause No. 2014-37034
APPELLANT NEIGHBORHOOD CENTERS INC.’S REPLY TO APPELLEE DOREATHA WALKER’S RESPONSE TO APPELLANT’S MOTION FOR REHEARING
Pursuant to TEX. R. APP. P. 49, Appellant Neighborhood Centers Inc.
(“Neighborhood Centers”) files this Reply to Appellee’s Response to Neighborhood Centers’ Motion for Rehearing, and respectfully shows as follows:
SUMMARY OF ARGUMENT
Section 12.1056(a) of the Education Code was amended in the 84th Texas Legislative Session to clarify that in addition to having immunity from liability to
the same extent as a school district, the open-enrollment charter school has immunity from suit to the same extent as a school district. This does not impact whether the Whistleblower Act statute applies on its face to an open-enrollment charter school. As Texas Education Code Section 12.1058(c) has specifically clarified that the Whistleblower Act does not apply to an open-enrollment charter school as it is expressly not a “local governmental entity,” and there has been no waiver of immunity as to Neighborhood Centers.
Texas Education Code Section 12.1058(c) is a jurisdictional statute;
therefore, a “savings clause” analysis is not applicable, and Walker’s vested rights are not impermissibly impaired by the application of Texas Education Code Section 12.1058(c).
ARGUMENT
I. The Amendment to Section 12.0156 of the Education Code is not Relevant to the Determination of Whether Neighborhood Centers is a Local Government Entity within the Scope of Coverage of the Whistleblower Act
In Walker’s Cross-Appeal, she argued that the trial court erred in granting Neighborhood Centers’ plea to the jurisdiction on her workers’ compensation anti- retaliation claim under Labor Code section 451.001 because Texas Education Code Section 12.1056 at that time only expressly provided that open-enrollment charter schools are immune from liability to the same extent as public school districts, and did not explicitly mention immunity from suit. In this Court’s Opinion on July 30,
2015, this Court rejected Walker’s argument and found that Neighborhood Centers, as an open-enrollment charter school, is immune from suit to the same extent as a public school district, following opinions of this Court and several other courts of appeals, who previously addressed this issue. (See July 30, 2015 Opinion in this case, pp. 10-17).
On June 18, 2015, House Bill 1171 became law, effective immediately, by action of the 84th Texas Legislature. This new law amended Section 12.1056(a) of the Education Code to now specifically provide that open-enrollment charter schools are immune from suit to the same extent as a school district, thus codifying this Court’s ruling as to Walker’s claim under the Workers’ Compensation Act and its prior holding in KIPP, Inc. v. Whitehead, 446 S.W.3d 99, 105 (Tex. App.— Houston [1st Dist.) 2014, pet. denied). The legislative history attached by Walker as Exhibit “B” to the Response to Motion for Rehearing states that avoiding litigation on the very issue raised by Walker on her cross-appeal and rejected by this Court was the purpose of the amendment to Section 12.1056 of the Texas Education Code. 1 The amendment to Section 12.1056 of the Texas Education Code has no effect on whether Neighborhood Centers does or does not fall within the definition
1 The only relevance of the amendment to Section 12.1056 of the Texas Education Code to the issue before the Court in the Motion for Rehearing is that the fact that the two statutes were considered in close proximity to one another emphasizes the fact that Texas Education Code Section 12.1058 is jurisdictional.
of “local governmental entity” to which the Whistleblower Act applies. Instead, as set forth in Neighborhood Centers’ Motion for Rehearing, HB 1170 adding Section 12.1058 to the Texas Education Code, specifically provides that Neighborhood Centers as an open-enrollment charter school cannot be considered a local governmental entity under the Whistleblower Act because the statute does not state that it applies to an open-enrollment charter school. As an open-enrollment charter school is not within the definition of a local governmental entity under the Whistleblower Act, the Whistleblower Act does not apply to it, and there is no waiver of immunity for claims against Neighborhood Centers. TEX. GOV’T CODE §554.001(2); TEX. EDUC. CODE §12.1058(c).
II. Savings Clause Does Not Apply to this Jurisdictional Statute.
Walker further suggests that a saving clause analysis demonstrates that a general saving clause applies to Section 12.1058 of the Texas Education Code, and that this Court must conclude that Section 12.1058(c) does not affect any accrued right or remedy under the prior operation of the Whistleblower Act, a completely different statute. However, in this case, a savings clause analysis is not appropriate because the savings clause does not apply to this jurisdictional statute.
The general savings clause, which can be found in Section 311.031(a) of the Texas Government Code states:
(a) Except as provided by Subsection (b), the reenactment, revision, amendment, or repeal of a statute does not affect:
(1) the prior operation of the statute or any prior action taken under it;
(2) any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred under it;
(3) any violation of the statute or any penalty, forfeiture, or punishment incurred under the statute before its amendment or repeal; or
(4) any investigation, proceeding, or remedy concerning any privilege, obligation, liability, penalty, forfeiture, or punishment; and the investigation, proceeding, or remedy may be instituted, continued, or enforced, and the penalty, forfeiture, or punishment imposed, as if the statute had not been repealed or amended.
See TEX. GOV’T CODE § 311.031(a)(1)-(4) (emphasis added). The clear distinction here is that Walker’s action is under the Whistleblower Act statute, while the legislature has amended Chapter 12 of the Texas Education Code. Therefore, Section 311.031(a) and the savings clause analysis are not necessary and do not apply.
A savings clause is only necessary to avoid a retroactive application of a statute if the newly enacted statute repeals a cause of action or revokes a special remedy. Houston Indep. Sch. Dist. v. Houston Chronicle Pub. Co., 798 S.W.2d 580, 586-87 (Tex. App.—Houston [1st Dist.] 1990), writ denied (Feb. 6, 1991). In this case, the savings clause analysis is not applicable because Section 12.1058 of the Texas Education Code is a new statute and neither repeals a cause of action nor revokes a special remedy.
Indeed, Section 12.1058 of the Texas Education Code does not amend the
Texas Whistleblower Act or revoke a special remedy that was once available under the Whistleblower Act. Instead, Section 12.1058 of the Texas Education Code is a separate, jurisdictional statute. It clarifies that open-enrollment charter schools are not implied to be local government entities, unless the statute specifically states that they are a local government entity. Here, the Whistleblower Act only applies to a local governmental entity, defined as a political subdivision of this state, and does not expressly include an open-enrollment charter school. Therefore, Section 12.1058 strips the court of jurisdiction in this case, where suit is brought under the Whistleblower Act, which is not applicable to open-enrollment charter schools.
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