Texas State University and Texas State University System v. Stuart Patrick Wilkinson

Opinion

ACCEPTED 15-25-00028-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 5/27/2025 4:56 PM NO. 15-25-00028-CV-CV CHRISTOPHER A. PRINE CLERK

IN THE FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS

Texas State University and Texas State University System, Defendants/Appellants FILED IN v. 15th COURT OF APPEALS AUSTIN, TEXAS Stuart Patrick Wilkinson, Plaintiff/Appellee 5/27/2025 4:56:56 PM CHRISTOPHER A. PRINE Clerk

Expedited Appeal from Cause No. 24-1162 in the 22nd Judicial District Court of Hays County, Texas

APPELLEE’S BRIEF

David Junkin State Bar No. 11058020 david@mcglothlinlaw.com 133 W. San Antonio Street, Suite 400 San Marcos, TX 78666 Telephone: 512/392-7510 Telecopier: 512/392-7520 Attorney for Appellee, Patrick Wilkinson TABLE OF CONTENTS

Index of Authorities ..................................................................................... iii

Index to Appendix ..........................................................................................v

Brief Statement of the Case ..........................................................................1

Standard of Review ........................................................................................1

Statement Regarding Oral Argument .........................................................3

Issues Presented .............................................................................................3

A. Is Appellee’s Texas Whistleblower Act claim barred by sovereign immunity and did Appellee pled a viable claim under the Act?

B. Appellee pled facts to support a waiver of sovereign immunity for a constitutional free-speech retaliation claim and material adverse personnel actions?

C. Is Appellee asserting a generic “tort” claim?

D. Is dismissal with prejudice appropriate?

Summary Statement of Background Facts .................................................4

Summary of the Argument ...........................................................................7

Argument ........................................................................................................8

A. Appellee’s Texas Whistleblower Act claim is not barred by sovereign immunity -- sovereign immunity is expressly waived under the Act and Appellee pled a viable claim under the Act...……………..…………8

i. Sovereign Immunity is Expressly Waived Under the Texas Whistleblower Act…………………………………………………..…8

i ii. Appellee Pled a Viable Claim Under the Texas Whistleblower Act……………………………………………………………………...…9

iii. Appellee’s Pleading Alleges Exhaustion of His Administrative Remedies…………………………………………………………..….…11

iv. Pleading Specific Dates is Not Required…………..……………..12

v. Appellants Did Not Make the Specific Denial Required Under Rule 54 TRCP…………………………….…………………………...13

vi. Appellee’s Pleading Does Not Establish His Claim is Time- Barred………….……………………..…………………………………14

vii. Appellee’s Pleading Alleges Material Adverse Personnel Actions…………………...…………………………………………..…16

B. Appellee pled facts to support a waiver of sovereign immunity for a constitutional free-speech retaliation claim and material adverse personnel actions.…………………………………….…………………..…..18

i. Appellants are Not Immune From Appellee’s Free-Speech Retaliation Claims……………………………………………………18

ii. Appellee Pled a Viable Free-Speech Retaliation Claim……...19

iii. Appellee Pled Adverse Personnel Actions Taken Against Him in Retaliation for Exercising his Free Speech Rights…….……………..20

iv. Suit was Properly Brought Against Entities v. Individuals…....20

v. 1983 Claim Issues……………………………………………...…….22

C. The Appellee is not asserting a generic “tort” claim…………..…….…23

D. Dismissal with prejudice is not appropriate at this stage because if his pleading is found to be insufficient, Appellee must be given an opportunity to amend.……………..………………………………...……….23

Prayer for Relief.......................................................................................... 27

ii Certification of Compliance ....................................................................... 28

Certificate of Service .................................................................................. 28

INDEX OF AUTHORITIES

Case Law Page(s)

Caleb v. Carranza, 518 S.W.3d 537 (Tex. App.—Houston [1st Dist.] 2017, no pet.) .......................... 19

City of El Paso v. Heinrich 284 S.W.3d 366 (Tex. 2009). ........................................................................ 21, 22

Haddix v. American Zurich Ins., 253 S.W.3d 339 (Tex. App.—Eastland 2008, no pet.) ......................................... 24

Harris County v. Sykes 136 S.W.3d 635 (Tex. 2004). ....................................................................... 24, 25

Klumb v. Houston Municipal Employees Pension System, 458 S.W.3d 1 (Tex. 2015)................................................................................... 18

Montgomery County v. Park 246 S.W.3d 610 (Tex. 2007) ............................................................................... 17

Scott v. Godwin, 147 S.W.3d 609 (Tex. App.—Corpus Christi 2004, no pet.) ................................. 19

Skinny’s Inc. v. Hicks Brothers Construction Co., 602 S.W.2d 85, (Tex. Civ. App.—Eastland 1980, no writ). .................................. 14

State v. Lueck, 290 S.W.3d 876 (Tex. 2009) ............................................................................. 8, 9

Texas A&M University System v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) ......................................................................... 25, 26

iii Texas Dept. of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974) ................................................................................... 23

Texas Dep’t Crim Justice-Comm. Justice Assistance Div. v. Campos, 384 S.W.3d 810 (Tex. 2012) ............................................................................... 26

Texas Department of MHMR v. Rodriguez, 63 S.W.3d 475 (Tex. App.—San Antonio 2001, pet. denied)................................ 17

Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ........................................................................... 2, 14

Texas Parks & Wildlife Dept. v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. April 10, 2025, no pet.) ............................................. 3

Truss World, Inc. v, ERJS, Inc, 284 S.W.3d 393 (Tex. App.—Beaumont 2009, pet. denied) ................................. 14

University of Texas v. Kearney, 03-14-00500-CV (Tex. App.—Austin May 3, 2016, pet. denied) (mem. op.). 2, 3, 11

UTMB v. Hohman, 6 S.W.3d 767 (Tex. App.—Houston [1st Dist.] 1999, pet. dismissed) .................... 17

Ward v. Lamar University, 484 S.W.3d 440 (Tex. App.—Houston [14th Dist.] 2016, no pet.) ................... 16, 17

Statutes

TEX. GOV’T CODE § 554.0035. ......................................................................... 8, 9

TEX. GOV’T CODE § 554.001. ................................................................... 5, 16, 17

TEX. GOV’T CODE §554.002. .................................................................... 9, 10, 16

TEX. GOV’T CODE §554.005. .............................................................................. 15

TEX. GOV’T CODE §554.006. .............................................................................. 15

iv Rules

TEX. R. CIV. P. 45 ............................................................................................. 14

TEX. R. CIV. P. 47 ............................................................................................. 14

TEX. R. CIV. P. 54 ................................................................................... 7, 13, 14

INDEX TO APPENDIX

Statute (Chapter 554, Tex. Gov’t Code) ................................................TAB A

Cases ..................................................................................................... TAB B

v TO THE HONORABLE FIFTEENTH COURT OF APPEALS:

BRIEF STATEMENT OF THE CASE

1. This case is fundamentally a Texas Whistleblower Act proceeding

arising out of reports by the Appellee to the Federal Bureau of Investigation

(“FBI”) and to the Appellants and the resulting adverse personnel actions taken

against him by Appellants. A hearing was held on the Appellants’ Plea to the

Jurisdiction. The Appellants provided no evidence with their Plea to the

Jurisdiction or at the hearing, or with their post-hearing briefing. The underlying

issue before the Trial Court, and this Court, is the sufficiency of the Appellee’s

petition.

2. As discussed in more detail below, under the applicable standard of

review of his pleadings, the Appellee has pled a viable Texas Whistleblower Act

claim and viable free-speech retaliation claim. The Trial Court denied the

Appellants’ Plea. However, if this Court finds that Appellee’s pleading is

insufficient in some regard, Appellee should be afforded the opportunity to amend

in order to meet any such deficiency.

STANDARD OF REVIEW

3. In this case, the Appellants offered no evidence whatsoever to support

their jurisdictional challenge. The arguments of counsel and suggestions as to

what the evidence would have shown, do not support a challenge to jurisdictional

Appellee’s Brief – Page 1 facts. 1 Therefore, Defendants cannot properly challenge the evidentiary basis for

the Appellee’s pleading – as opposed to challenging the sufficiency of the pleading

itself. In other words, this appeal is strictly a challenge to the sufficiency of

Appellee’s pleading. As the Texas Supreme Court has noted:

When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. 2

The review by this Court is de novo. 3

4. Accordingly, this Court should look to the Appellee’s First Amended

Original Petition (“Amended Petition”) 4 for Appellee’s intent, construe the

Amended Petition liberally in favor of jurisdiction, and accept the allegations in the

1 See e.g., University of Texas v. Kearney, 03-14-00500-CV, pg. 14 (Tex. App.—Austin May 3, 2016, pet. denied) (mem. op.) (“Instead, the University asserts only arguments as to what the evidence would show had it offered any. However, the arguments of counsel are not evidence. Thus, the University asks us to determine jurisdictional facts in the absence of any record evidence whatsoever. Consequently, there is no evidence of the facts it now urges us to rely on in determining that Kearney cannot show she was treated less favorably than similarly situated employees. We cannot do so.”) (citations omitted) 2 Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004) (citations omitted). 3 Id. at 226 and Kearney at 5. 4 Amended Petition, Clerk’s Record, page 47.

Appellee’s Brief – Page 2 Amended Petition as true. 5 Using that standard, this Court should determine if

Appellee has alleged facts that affirmatively demonstrate the Court's jurisdiction to

hear the case. 6 If the Amended Petition does not contain sufficient facts to

affirmatively demonstrate jurisdiction but do not affirmatively demonstrate

incurable defects in jurisdiction, the issue is one of pleading sufficiency and the

Appellee should be afforded the opportunity to amend.

STATEMENT REGARDING ORAL ARGUMENT

5. Given that essentially the sole issue before the Court is the

sufficiency of the Appellee’s pleading, Appellee believes that the pleadings will

adequately present the facts and legal arguments involved in this appeal and that

oral argument would not significantly aid the decisional process of, or review by,

this Court. However, if the Court determines oral argument would be helpful,

Appellee intends to participate.

ISSUES PRESENTED

6. The trial court properly denied the Appellants’ Plea because under the

applicable standard of review, the Appellee’s Amended Petition does not establish

his claims are barred by sovereign immunity, he has pled sufficient facts to support

5 Kearney at 5. 6 Tex. Parks & Wildlife Dept v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. April 10, 2025, no pet.).

Appellee’s Brief – Page 3 those claims, he has not pled a generic “tort” claim, any alleged defects are not

incurable and therefore dismissal with prejudice at this stage is not appropriate.

SUMMARY STATEMENT OF BACKGROUND FACTS7

7. The Appellee is a CPA and has been a public employee for more than

40 years. For virtually all of his career, Appellee was a valued and respected

employee and was responsible for high-level projects and consistently received

positive evaluations for his work. More recently, Appellants held training and

related events encouraging employees to report suspected wrongdoing. The

Appellants also purported to encourage its employees to report suspected

violations of the law and suspected misconduct by Appellants’ faculty, staff, and

officers. While at times criticized for his conservative viewpoints by his superiors,

the Appellants also appeared to take pride in presenting a public persona of

promoting openness, diversity, equity, inclusion, diversity of opinions, etc.

8. In 2023, the Appellee became aware of issues raised by Quest

Software, Inc., a California-based company, about licensing of its database

management software product called “Toad” and the Appellants’ use of that

software without proper licenses. The issue raised concerned the number of

approved licenses for Appellants versus the number of computers using some

7 Taken from the Amended Petition (Clerk’s Record, beginning on page 47) and reasonable inferences drawn therefrom.

Appellee’s Brief – Page 4 version of Toad. The Appellee also became aware of the issue through a co-

worker who, before an audit was conducted to determine the number of computers

with Toad software, was told by the Appellant to have his hard-drive “reformatted”

such that if Toad software was on his computer, it would be deleted. This course

of conduct raised good faith and legitimate concerns about spoliation, illegal

conduct and violations of multiple laws.

9. The Appellee, in good faith, reported the foregoing facts and potential

violation of the law by the Appellants to the FBI. The Appellee, as a CPA, was

familiar with criminal charges against CPAs arising out of the “Enron” cases from

years ago, particularly as it relates to destruction of evidence. Accordingly, the

Appellee reasonably believed the FBI was an “appropriate law enforcement

authority,” as that term is used in Texas Government Code § 554.001, because he

was familiar with its authority to investigate violations of federal criminal laws,

interstate matters, spoliation claims, destruction of evidence, etc.8

10. After making the underlying report of suspected criminal activity to

the FBI, Appellee also made the report to the Texas State University System’s

Internal Audit Office for investigation though its Ethics Point online reporting

system. However, the Internal Audit “investigation” did not even appropriately

8 It is not lost on Appellee that the Texas Attorney General’s Office could be charged with prosecuting the alleged criminal behavior by Appellants and is also defending the Appellants in this related matter creating the strong potential for a conflict of interest.

Appellee’s Brief – Page 5 investigate the matters reported to the FBI and the Appellant failed to take steps to

prevent Appellee’s supervisors/managers from retaliating against him. Since

making the reports, the Appellee pled that Appellants have, among other things:

(i) refused to consider promotional opportunities for Appellee, (ii) intentionally

deprived Appellee of networking and social interactions that he had enjoyed for

years, (iii) created a hostile, demeaning, and restrictive work atmosphere, (iv)

fabricated performance reviews with the purpose of creating a pretext to demote

and/or terminate Appellee, (v) did not promote Appellee, (vi) reduced Appellee’s

pay, (vii) denied Appellee pay raises, (viii) denied Appellee promotional

opportunities, and (ix) unfairly limited Appellee’s employment benefits.

11. As a result of the Appellants’ retaliatory conduct the Appellee has

suffered and will continue to suffer damages in the form of lost wages, lost future

wages, lost future expected pay increases, and/or lost benefits (to also include

promotional opportunities). After being subjected to material adverse personnel

action because of his reports, Appellee timely instituted the administrative

grievance process and, when that process was exhausted, the Appellee filed this

suit.

Appellee’s Brief – Page 6 SUMMARY/OUTLINE OF THE ARGUMENTS

12. As noted above, Appellants offered no evidence to support their Plea

to the Jurisdiction or to counter the facts alleged in the Amended Petition.

Appellants also did not bring their contest to jurisdiction as a traditional or no-

evidence motion for summary judgment. Accordingly, the Trial Court properly

denied the Appellants’ Plea because:

A. Appellee’s Texas Whistleblower Act claim is not barred by sovereign immunity – sovereign immunity is expressly waived under the Act and Appellee pled a viable claim under the Act.

i. Sovereign Immunity is Expressly Waived Under the Texas Whistleblower Act.

ii. Appellee Pled a Viable Claim Under the Texas Whistleblower Act.

iii. Appellee’s Pleading Alleges Exhaustion of His Administrative Remedies.

iv. Pleading Specific Dates is Not Required.

v. Appellants Did Not Make the Specific Denial Required Under TRCP 54.

vi. Appellee’s Pleading Does Not Establish His Claim is Time- Barred.

vii. Appellee’s Pleading Alleges Material Adverse Personnel Actions.

B. Appellee pled facts to support a waiver of sovereign immunity for a constitutional free-speech retaliation claim and material adverse personnel actions.

Appellee’s Brief – Page 7 i. Appellants are Not Immune From Appellee’s Free-Speech Retaliation Claims.

ii. Appellee Pled a Viable Free-Speech Retaliation Claim.

iii. Appellee Pled Adverse Personnel Actions Taken Against Him in Retaliation for Exercising his Free-Speech Rights.

iv. Suit was Properly Brought Against Entities v. Individuals.

v. 1983 Claim Issues.

C. The Appellee is not asserting a generic “tort” claim.

D. Dismissal with prejudice is not appropriate at this stage because if Appellee’s pleading is found to be insufficient, Appellee must be given an opportunity to amend.

ARGUMENTS

A. Appellee’s Texas Whistleblower Act claim is not barred by sovereign immunity -- sovereign immunity is expressly waived under the Act and Appellee pled a viable claim under the Act.

Sovereign Immunity is Expressly Waived Under the Texas Whistleblower Act.

13. The Texas Whistleblower Act – Texas Government Code Chapter 554

(the “Whistleblower Act”) – expressly provides for a waiver of sovereign

immunity. 9 In fact, the Texas Supreme Court in State v. Lueck found that,

fundamentally, in a Whistleblower Act claim, there are two jurisdictional

9 See TEX. GOV’T CODE § 554.0035. (“A public employee who alleges a violation of this chapter may sue the 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.”).

Appellee’s Brief – Page 8 requirements to be pled to show waiver of governmental immunity under the Act –

those requirements are that the plaintiff must plead he was/is a public employee

and a violation of the Act. 10 Appellee has done both – he pled he was a public

employee11 and as discussed in more detail below, pled a viable claim under the

Act.

Appellee Pled a Viable Claim Under the Texas Whistleblower Act.

14. While noting the two (2) fundamental requirements for a waiver of

sovereign immunity, the Texas Supreme Court in Lueck also noted that the mere

reference to the Whistleblower Act alone is insufficient to confer jurisdiction and

that the elements of a violation of the Whistleblower Act must be pled. 12 The

Whistleblower Act provides, in part:

(a) 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

10 State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009) (“We agree with Lueck and the court of appeals that there are but two jurisdictional requirements under section 554.0035. For the government's immunity to be waived, the plaintiff must (1) be a public employee, and (2) allege a violation of this chapter.”) (citation omitted). 11 See Amended Petition, Clerk’s Record at 48, paragraph 8. 12 Lueck, 290 S.W.3d at 881 (“But it necessarily follows from this language that Lueck 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. We conclude that the elements of section 554.002(a) can be considered as jurisdictional facts, when it is necessary to resolve whether a defendant has alleged a violation under the Act.”).

Appellee’s Brief – Page 9 governmental entity or another public employee to an appropriate law enforcement authority. (b) In this section, a report is made to an appropriate law enforcement authority if the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to:

(1) regulate under or enforce the law alleged to be violated in the report; or (2) investigate or prosecute a violation of criminal law. 13

15. In this case, in the Amended Petition the Appellee pled that:

a. the Appellants are governmental entities within the meaning of the Whistleblower Act,14

b. as discussed above, he was a public employee and employed by Appellants,15

c. as encouraged by Appellants and acting in good faith, Appellee reported the violation, or potential violation, of the law by the Appellants to the FBI, 16 and

d. Appellee believed the FBI is an appropriate law enforcement authority to investigate such violations of the law. 17

While the Court should construe all of these pled facts in Appellee’s Amended

Petition as true and in favor of jurisdiction, the Appellants offered no evidence to 13 TEX. GOV’T CODE §554.002. 14 Amended Petition, Clerk’s Record at page 47, paragraphs 4 and 5. 15 Id., page 48, paragraph 8. 16 Id., pages 49-50, paragraphs 10-12. 17 Id., page 50, paragraph 12.

Appellee’s Brief – Page 10 the contrary or tending to challenge any of these jurisdictional facts. Any

arguments they make to the contrary are just that – arguments – and are not

evidence.18

Appellee’s Pleading Alleges Exhaustion of His Administrative Remedies.

16. Appellants admit Appellee has pled that he submitted his

whistleblowing report to the FBI and to the Texas State University System’s Office

of Internal Audit via an online reporting platform. Appellants also assert, with

absolutely no factual basis to support it, that Appellee failed to notify his

employers of the alleged retaliatory conduct underlying his current suit against

them within the timeframe mandated by the Whistleblower Act and therefore he

has failed to exhaust his administrative remedies for his Whistleblower Act claim

and the Court lacks jurisdiction.

17. However, despite the Appellants’ assertions to the contrary, the

Appellee did in fact plead that he timely exhausted his administrative remedies.19

The Appellants suggest the Amended Petition suggests Appellee only complained

to the Appellants about the suspected criminal violations and did not pursue

administrative remedies for the retaliatory conduct. Appellants ask this Court to

18 See Kearney, footnote 1, supra. 19 See e.g., Amended Petition, Clerk’s Record at page 54, paragraph 18 and at page 56, paragraph 24.

Appellee’s Brief – Page 11 ignore paragraph 24 of the Amended Petition where Appellee states:

[t]he [Appellee] appropriately initialed [sic - initiated] his administrative remedies. Appellee invoked the Texas State University grievance procedure within 90 days after the adverse employment action was discovered and timely filed suit.20

Even without liberally construing the Amended Petition in Appellee’s favor and in

favor of jurisdiction, Appellee has alleged reporting the illegal activity to the FBI

and Office of Internal Audit AND then reporting the adverse personnel action

resulting from such reports in accordance with the Appellants’ grievance

procedure. Appellee adequately pled exhaustion of his administrative remedies.

Pleading Specific Dates is Not Required.

18. The Appellants assert that the Court lacks jurisdiction because the

Appellee did not allege specific dates in his Amended Petition. The Appellants

rely on the University of Texas v. Poindexter case which is NOT a Whistleblower

Act case and does not revolve around an alleged failure to exhaust administrative

remedies. Instead, the Poindexter case notes that “a charge filed with the EEOC

must specify the date(s) on which the allegedly unlawful employment practice(s)

occurred” which allows the EEOC “to calculate whether the charge’s 180-day

filing deadline has passed.” The Poindexter case even noted that the EEOC charge

form has a “Continuing Action” box for discrimination that “manifests itself over

20 See id., page 56, paragraph 24.

Appellee’s Brief – Page 12 time, rather than a series of discrete acts.” The Appellants are now asking the

Court to conclude that the EEOC form requirement to include dates somehow

transfers over to Whistleblower complaints that have no such requirement or form.

In the unlikely event that the Court finds it lacks jurisdiction without specific dates,

the Appellee respectfully requests the Court identify such dates required to be pled

for jurisdictional purposes under the Whistleblower Act and grant him leave to

amend to meet such alleged deficiencies. 21

Appellants Did Not Make the Specific Denial Required Under TRCP 54.

19. Further and in the alternative, the Appellee has pled that all conditions

precedent to his right to recover have occurred or have been performed under Rule

54 of the Texas Rules of Civil Procedure. As discussed above, Appellee also pled

he appropriately initiated his administrative remedies and that he invoked the

Texas State University grievance procedure within 90 days after the adverse

employment action was discovered and that he timely filed suit. Appellee was

then further retaliated against for filing suit. The Appellants offered no evidence to

the contrary and the Appellants’ answer does not include a specific affirmative

limitations defense or denial. Appellants pled that “Defendants assert the

This relief was also requested in the Trial Court. See e.g., Response to Defendants First 21

Amended Plea to the Jurisdiction, Clerk’s Record, page 100, paragraph 20.

Appellee’s Brief – Page 13 applicable statute of limitations to Plaintiff’s claims, to the extent that it applies.”22

But those types of generic allegations are not the type of specific denials required

by Rule 54. In the Truss World case the court found that the defendant must

specifically state in what way the claims are barred by limitations. 23 Absent a

proper and specific denial by Appellants, the Appellee’s Rule 54 pleading

eliminates the requirement for Appellee to plead further.

Appellee’s Pleading Does Not Establish His Claim is Time-Barred.

20. The Appellants also seem to take the position that the jurisdictional

pleading requirements include affirmatively pleading any and every specific fact

that might be raised by a Defendant by way of an affirmative defense, including

the statute of limitations. This is not required under Texas pleading rules. 24 The

Appellants did not bring a summary judgment and have offered no evidence to

support any alleged affirmative or limitations defense – Appellants just claim that

22 Defendant’s Original Answer and Defenses, Clerk’s Record, Page 15, paragraph 3. 23 See Truss World, Inc. v, ERJS, Inc., 284 S.W.3d 393, 396-97 (Tex. App.—Beaumont 2009, pet. denied), see also, Skinny’s Inc. v. Hicks Brothers Construction Co., 602 S.W.2d 85, 90 (Tex. Civ. App.—Eastland 1980, no writ). 24 See e.g., Miranda, 133 S.W.3d at 230 (in response to the dissent’s position that additional supporting facts must be pled, the Texas Supreme Court noted: “The pleading hurdle he seeks to erect would be groundbreaking, indeed, extending beyond current requirements under our rules of civil procedure and case law. Rules 45 and 47 require that the original pleadings give a short statement of the cause of action sufficient to give the opposing party fair notice of the claim involved. Rule 45 does not require that the plaintiff set out in his pleadings the evidence upon which he relies to establish his asserted cause of action.”).

Appellee’s Brief – Page 14 the Appellee is required to plead around it or Appellee’s claims must be dismissed.

The Appellee pled that he timely filed his administrative grievance for the

Appellants’ retaliatory conduct and that he timely filed suit following the

conclusion of that process – which is an internal process for which the Appellants

have access to the very information they claim Appellee was required to plead.

21. In addition, the Appellants assert suit was not timely filed

emphasizing the complaint to the FBI was made in August of 2023. However, the

date the complaint was made is not at all controlling. The Whistleblower Act does

provide for a presumption that retaliatory conduct is as a result of the

whistleblower complaint if filed within 90 days, but that provision does not control

timing of the filing of the petition for limitations purposes. The Whistleblower

Act’s limitations period runs from when the retaliatory personnel action occurred

or was discovered 25 by the plaintiff through reasonable diligence and the time

period is also extended by invocation of the grievance process. 26 Despite

Appellants’ arguments to the contrary, the 90-day limitations period does not begin

to run when Appellee’s complaint was made to the FBI. The Appellee pled he

25 Appellee is aware that the immediate past President of Texas State University testified in a whistleblower case that she was advised by counsel not to take any action involving the whistleblower until after the 90-day period had expired. Intentionally waiting until after the 90-day period has run before initiating adverse personnel actions, does not absolve Appellants of liability under the Act by creating an automatic limitations defense. 26 TEX. GOV’T CODE §554.005 and 554.006 (emphasis added).

Appellee’s Brief – Page 15 pursued his administrative remedies and his suit was timely filed – Appellants

offered no evidence to the contrary.

Appellee’s Pleading Alleges Material Adverse Personnel Actions.

22. Further, the Whistleblower Act also requires the Appellee to plead his

employment was “suspended or terminated” or that Appellants took “other adverse

personnel action” against Appellee.27 The Appellants argue that the Court lacks

jurisdiction because the Appellee is still employed. This position ignores the plain

language of the Whistleblower Act that does not require suspension or termination

– only some “other adverse personnel action.” “Personnel action” is expressly

defined to mean “an action that affects a public employee’s compensation,

promotion, demotion, transfer, work assignment, or performance evaluation.” 28

The fact that a plaintiff might remain employed is not even remotely dispositive of

a Whistleblower Act claim. 29

23. For example, adverse personnel action can be any action that affects

the Appellee’s compensation, promotion, transfer, work assignment or

27 TEX. GOV’T CODE §554.002 (emphasis added). 28 Id. at 554.001(3). 29 See generally, Ward v. Lamar University, 484 S.W.3d 440 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (finding that evidence that certain job characteristics remained the same after the report is not dispositive and a fact issue was created when Appellee’s authority was significantly reduced even though her pay and job title remained the same).

Appellee’s Brief – Page 16 performance evaluation. 30 The Court can also consider effects on prestige,

opportunity for advancement, working conditions, income, and the ability to obtain

outside employment. 31 Adverse employment action can also include direct or

constructive termination, and lesser actions like reprimands, warnings, and missed

pay increases. 32

24. In this case the Appellee has alleged that as a result of his

Whistleblower Act complaint, the Appellants:

a. created a hostile work environment with the intent to force the Appellee to resign,

b. constructively discharged Appellee,

c. subjected Appellee to a fabricated performance review with the purpose of creating a pretext to demote or not promote Appellee,

d. excluded Appellee from networking opportunities,

e. sought to fire Appellee,

f. reduced Appellee’s pay,

g. denied Appellee a pay raise, 30 TEX. GOV’T CODE §554.001(3), see also, Montgomery County v. Park, 246 S.W.3d 610, 612 (Tex. 2007) (“We hold that a personnel action is adverse within the meaning of the Whistleblower Act if it would be likely to dissuade a reasonable, similarly situated worker from making a report under the Act.”). 31 See e.g., Ward, 484 S.W.3d at 446. 32 See Texas Department of MHMR v. Rodriguez, 63 S.W.3d 475 (Tex. App.—San Antonio 2001, pet. denied); UTMB v. Hohman, 6 S.W.3d 767 (Tex. App.—Houston [1st Dist.] 1999, pet. dismissed).

Appellee’s Brief – Page 17 h. denied Appellee promotional opportunities,

i. concocted poor performance evaluations for Appellee, and

j. limited Appellee’s employment benefits.33

Liberally construing the Appellee’s petition in favor of jurisdiction and taking the

allegations as a whole and as true, Appellee has pled adverse personnel actions

were taken against him as a result of his Whistleblower report to the FBI,

including, without limitation, pay-related actions. Appellee simply is not required

to plead or show he was actually terminated, or that he is no longer employed by

Appellants.

25. Under the proper review criteria, Appellee has pled sufficient facts to

support jurisdiction for his Texas Whistleblower Act claims.

B. Appellee pled facts to support a waiver of sovereign immunity for a constitutional free-speech retaliation claim and material adverse personnel actions.

Appellants are Not Immune From Appellee’s Free-Speech Retaliation Claims.

26. The Appellants offer no legal support for their apparent contention

that they are immune from suit for violations of Appellee’s free-speech rights.

Sovereign immunity does not bar a suit to vindicate constitutional rights. 34

33 See e.g., Amended Petition, Clerk’s Record, pages 51-53, paragraphs 13 through 16 and page 54, paragraph 20. 34 See e.g., Klumb v. Houston Municipal Employees Pension System, 458 S.W.3d 1, 13

Appellee’s Brief – Page 18 Appellee Pled a Viable Free-Speech Retaliation Claim.

27. To present a valid constitutional free-speech claim, the Appellee was

required to plead that:

a. he suffered an adverse employment decision;

b. his speech involved a matter of public concern;

c. his interest in commenting on matters of public concern outweighed the Appellants’ interest in promoting efficiency; and

d. his speech motivated the adverse employment decision.35

In this case, Appellee pled that:

a. he suffered adverse employment decisions; 36

b. his speech (complaint of wrongdoing) involved a matter of public concern; 37

c. acting in good faith, he reported the violation or potential violation of the law by the Appellant to the FBI, his interest in commenting on matters of public concern outweighed the Appellants’ interest in

(Tex. 2015) (“While it is true that sovereign immunity does not bar a suit to vindicate constitutional rights, immunity from suit is not waived if the constitutional claims are facially invalid,”) (citation omitted). 35 See e.g., Caleb v. Carranza, 518 S.W.3d 537, 544 (Tex. App.—Houston [1st Dist.] 2017, no pet.). 36 See paragraphs 22 through 24 above. 37 See e.g., Scott v. Godwin, 147 S.W.3d 609, 618 (Tex. App.—Corpus Christi 2004, no pet.) (“Exposure of official misconduct is generally of great consequence to the public. There is perhaps no subset of ‘matters of public concern’ more important, for purposes of First Amendment protection of speech of public employees, than bringing official misconduct to light.”) (citations omitted).

Appellee’s Brief – Page 19 promoting any potential loss of efficiency; 38 and

d. his speech motivated the adverse employment decisions.39

Taking the allegations in the Amended Petition as true and construing it liberally in

Appellee’s favor and in favor of jurisdiction, Appellee has pled a viable First

Amendment Retaliation claim.

Appellee Pled Adverse Personnel Actions Taken Against Him in Retaliation for Exercising his Free-Speech Rights.

28. Taking the allegations in the Amended Petition as true and liberally

construing them in favor of jurisdiction, the Appellee has pled adverse personnel

actions were taken against him as a result of his exercise of his free-speech rights.40

Suit was Properly Brought Against Entities v. Individuals.

29. Again, without waiver of the objection based on this issue being

raised in post-hearing briefing, Appellants did not specifically include the

arguments in their Plea to the Jurisdiction. The Appellants also seemed to argue

that Appellee must bring his claims against individuals as opposed to the

governmental entity. In that regard, the Appellants referred the Court to City of El

38 See e.g., Amended Petition, Clerk’s Record at pages 50 through 53, paragraphs 11 through 15. 39 See id., 53 and 54, paragraphs 16, 17, 19, and 20. 40 See paragraphs 22 through 24 above.

Appellee’s Brief – Page 20 Paso v. Heinrich.41 In Heinrich the Appellee sued both the governmental entities

and individual governmental actors and the Appellants filed a Plea to the

Jurisdiction claiming immunity.42 Heinrich was not a Whistleblower Act case or a

free-speech case arising out of a Whistleblower complaint. In that case, Heinrich

conceded that the governmental entities were immune from suit, but argued the

Declaratory Judgment Act claims against the individuals were not. 43 The Court

then addressed the following questions to “Proper Parties”:

We have been less than clear regarding the permissible use of a declaratory remedy in this type of ultra vires suit. Must it be brought directly against the state or its subdivisions? Or must it be brought against the relevant government actors in their official capacity? 44

The Court found that in ultra vires cases seeking a declaratory remedy, “. . . it

follows that these suits cannot be brought against the state, which retains

immunity, but must be brought against the state actors in their official capacity.”45

The Court ultimately found some of the claims against the individual Appellants

were barred by sovereign immunity and some were not.

41 City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009). 42 Id. at 370. 43 Id. at 370-72. 44 Id. at 373. 45 Id.

Appellee’s Brief – Page 21 30. In this case, the Appellants offered no evidence to support a claim that

any actions complained of by Appellee were not lawfully authorized or ultra vires

actions for which they are not responsible and may have immunity. The Appellee

did not bring suit under the Texas Declaratory Judgments Act rather, brought suit

under the Texas Whistleblower Act where immunity is waived for those claims.

Further, the Appellants have not shown how Heinrich is directly applicable to this

case, offered no evidence to support a claim that the Appellee’s claims are ultra

vires or barred by immunity, have no pleading to support such a position, and have

ignored the Appellee’s petition. 46 Appellants simply have not shown there is any

legal jurisdictional pleading defect in Appellee’s petition in this regard justifying

dismissal of the Appellees’ case in its entirety for lack of jurisdiction.

1983 Claim Issues

31. Without waiver of the objection to presentation of arguments not

contained in their Plea to the Jurisdiction, Appellants mentioned immunity issues

related to 1983 claims. Appellee has not pled a direct claim under 42 U.S.C. 1983.

However, even if Appellee did decide to bring a 1983-based claim, Appellants

have not shown a specific pleading defect that would preclude such a claim or one

that could not be cured in an amended pleading.

46 Amended Petition, Clerk’s Record, pages 54 and 55, paragraphs 19 and 22.

Appellee’s Brief – Page 22 C. The Appellee is not asserting a generic “tort” claim.

32. The Appellee has stated on the record that any clarification Appellants

are seeking on the Amended Petition should be brought by way of special

exceptions,47 and confirmed that Appellee was not making a generic tort claim.48

D. Dismissal with prejudice is not appropriate at this stage because if Appellee’s pleading is found to be insufficient, Appellee must be given an opportunity to amend.

33. Lastly, if in the unlikely event the Court finds that the Appellee’s

pleadings do not contain sufficient facts to affirmatively demonstrate the Court’s

jurisdiction, but do not affirmatively demonstrate incurable defects in jurisdiction,

the issue is one of pleading sufficiency and the Appellee should be afforded the

opportunity to amend. Appellee again requests that the Court identify the pleading

deficiency(ies), if there are any, and allow Appellee the opportunity to amend.

47 While a plea to the jurisdiction can be used to challenge jurisdiction, a claim that the Appellee has asserted an undetermined tort claim is more appropriately challenged by special exception with the opportunity to amend if sustained. See e.g., Texas Dept. of Corrections v. Herring, 513 S.W.2d 6, 9-10 (Tex.1974). “Herring's pleadings were insufficient; that is, they failed to state a cause of action. The Department of Corrections leveled no special exceptions to Herring's pleadings and thus no opportunity to amend his pleadings to state a cause of action was afforded. Had the Department of Corrections filed special exceptions which were sustained by the court, Herring would have had an opportunity to amend as a matter of right. But only after a party has been given an opportunity to amend after special exceptions have been sustained may the case be dismissed for failure to state a cause of action.”) (citations omitted) 48 Reporter’s Record, page 32, lines 3 through 11.

Appellee’s Brief – Page 23 34. Appellants argue that if the Court finds there is a pleading defect, the

Appellee should not be allowed the opportunity to amend to meet the defect. In

other words, the Appellants argued that the Appellee had time to amend his

petition before the hearing and therefore should not be given an opportunity to

amend even IF this Court finds the pleading is insufficient. The Appellants

referred the Court to Haddix v. American Zurich Ins., 49 for the general proposition

that the Appellee waived his opportunity to amend by not amending his petition

after the Plea to the Jurisdiction was filed. However, in Haddix the court found

that, “Haddix did not amend or request leave to amend his pleadings.” 50 In this

case, the Appellee specifically requested leave to amend his petition IF the Court

finds his pleadings are insufficient.51

35. The Appellants also referred the Court to the Harris County v. Sykes52

case where the Texas Supreme Court addressed the issue about whether the

dismissal should be with prejudice – the Court found it should have been, but also

noted that “[b]efore dismissing the case, the trial court allowed Sykes to file an

49 Haddix v. American Zurich Ins., 253 S.W.3d 339 (Tex. App.—Eastland 2008, no pet.) (“While the general rule expresses a preference for allowing an amendment, a plaintiff can waive this opportunity through inaction.”). 50 Id. 51 See Clerk’s Record, page 87, Appellee’s Response at paragraphs 2(f), 20, and 22. 52 Harris County v. Sykes, 136 S.W.3d 635 (Tex. 2004).

Appellee’s Brief – Page 24 amended petition, after which the Court made a final adjudication . . .” 53 The

Sykes case does NOT stand for the proposition that Appellee cannot be allowed to

amend his petition if the Court finds it is defective in some respect.

36. More importantly, after Haddix and Sykes, the Texas Supreme Court,

in Texas A&M University System v. Koseoglu, 54 addressed essentially the same

argument Appellants are making in this case. The Supreme Court noted and held:

It is true that a plaintiff deserves "a reasonable opportunity to amend" unless the pleadings affirmatively negate the existence of jurisdiction. Thus, the issue is whether Koseoglu has already been afforded that opportunity. If not, we agree that he deserves the opportunity if his pleadings can be cured.

Koseoglu argues a plaintiff is not required to amend his pleadings until they are determined by a court to be deficient. Thus, he contends he should now be provided an opportunity to amend. Texas A&M, on the other hand, argues the plaintiff's opportunity to amend should come after the governmental entity files its plea to the jurisdiction, which puts the Appellee on notice of alleged defects in his pleadings, but before the trial court takes any definitive action. Accordingly, Texas A & M contends, because Koseoglu had four months to amend his pleadings after it filed its jurisdictional plea, no further opportunity is warranted. Otherwise, Texas A&M argues, suits against governmental entities could be appealed at least twice before final judgment—once to obtain a reversal and remand, and a second time after the remand is ordered.

The court of appeals sided with Koseoglu, concluding "a plaintiff may stand on his pleadings in the face of a plea to the jurisdiction unless and until a court determines that the plea is meritorious." Thereafter, the court of appeals held, the plaintiff must be given a reasonable opportunity to amend” his pleadings to attempt to cure the jurisdictional defects found unless the pleadings are incurably defective. Thus, the court of appeals concluded,

53 Id. at 639 (emphasis added). 54 Texas A&M University System v. Koseoglu, 233 S.W.3d 835 (Tex. 2007).

Appellee’s Brief – Page 25 Koseoglu has not been given a reasonable opportunity to amend his pleadings because the trial court never found merit in Texas A&M's jurisdictional plea.

On this point, we generally agree with the court of appeals. Texas A&M's proposed rule would essentially allow governmental entities the unjust advantage of being not only a litigant, but also the judge of the plaintiff's pleadings. We decline to adopt such a rule. Thus, we agree that Koseoglu deserves the opportunity to amend his pleadings if the defects can be cured. 55

37. The Texas Supreme Court has rejected the very argument Appellants

are making. This Court has not found that Appellee’s Amended Petition is

insufficient in any particular way, but if it does, it should identify the deficiency

and provide Appellee the opportunity to amend to address the issue, unless such

would be impossible to do. The Appellants have not shown that, if the alleged

defects are found by this Court, that such defects are incurable by amendment.

55 Id. at 839-40 (citations omitted). But see, Texas Dep’t Crim Justice-Comm. Justice Assistance Div. v. Campos, 384 S.W.3d 810 (Tex. 2012) (“However, if a governmental entity has asserted in the trial court that it is immune and a Appellee fails to allege or show facts demonstrating a waiver of immunity after having a reasonable opportunity to conduct discovery directed to the issue and amend the pleadings, then the case should be dismissed. In this case the Appellees amended their petition three times over a period of nine years after TDCJ filed its first plea to the jurisdiction. Prior to the Appellees' last amendment the court of appeals had noted “it is unclear from the pleadings how the surveillance cameras and rooms in the SATF facility may have been used, as opposed to not used, and thereby caused an injury.” The Appellees have had a reasonable opportunity to engage in discovery on the immunity question and amend their pleadings, but nevertheless have not alleged or shown facts demonstrating their injuries were caused by TDCJ's use of tangible property.”) (citations omitted). In the instant case, the Appellants refused to answer discovery, so not only has the Appellee not had a reasonable opportunity to amend, the Appellee has not even been allowed relevant discovery.

Appellee’s Brief – Page 26 PRAYER FOR RELIEF

For all of the reasons set out above, Appellee/Plaintiff, Stuart Patrick

Wilkinson, respectfully prays that the Court: (i) deny the relief requested by the

Appellants/Defendants, Texas State University and Texas State University

System, (ii) affirm the Trial Court’s ruling, (iii) award Appellee/Plaintiff his

reasonable and necessary costs and expenses incurred in responding to this

original proceeding, and (iv) award Appellee/Plaintiff all such other and further

relief, whether in law or in equity to which Appellee/Plaintiff may show himself

to be entitled.

Respectfully submitted,

McGlothlin Junkin & Wilde, PC 133 W. San Antonio, Suite 400 San Marcos, TX 78666 512/392-7510 512/392-7520 (fax) david@mcglothlinlaw.com

____________________________________ David Junkin State Bar No. 11058020 Attorney for Appellee/Plaintiff, Stuart Patrick Wilkinson

Appellee’s Brief – Page 27 CERTIFICATE OF COMPLIANCE

Based on a word count run in Microsoft Word, this brief contains 7,230 words, including some of the portions of the brief exempt from the word count under Texas Rule of Appellate Procedure 9.4(i)(1).

___________________________________ David Junkin

CERTIFICATE OF SERVICE

I hereby certify that on May 27, 2025, a true and correct copy of the foregoing brief was served by email, through the Texas eFile system, to counsel of record as set forth below:

Rachel L. Behrendt Assistant Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Rachel.Behrendt@oag.texas.gov

Appellee’s Brief – Page 28 TAB A TAB B ALSO SEE ATTACHMENTS Caleb v. Carranza, 518 S.W.3d 537 (Tex. App. 2017)

518 S.W.3d 537 We take the appellants' pleadings as true for purposes of this appeal. The dispute arises from Mable CALEB, Jackie Anderson, Patrick an investigation by the Houston Independent Cockerham, Diann Banks, and Herbert School District into allegations of employee Lenton, Appellants misconduct.1 Mable Caleb was the principal of v. Key Middle School when, in the summer of 2009, Richard A. CARRANZA, Superintendent of she was appointed principal of Kashmere High the Houston Independent School District, School. Caleb was asked to remain as transitional Appellee principal at Key until a permanent replacement could be found. After a replacement principal was NO. 01-15-00285-CV appointed at Key, Terry Grier became the superintendent of HISD. Grier replaced the newly Court of Appeals of Texas, Houston (1st appointed Key principal with another person, Dist.). resulting in an outcry and demonstrations from the community. Opinion issued March 30, 2017 On October 31, 2009, after being relieved of all Laurence Watts, WATTS & COMPANY responsibilities relating to Key, Caleb moved all of LAWYERS, LTD., P.O. Box 2214, Missouri City, her personal belongings and some school TX 77459, for Appellant. property from Key to Kashmere. She was assisted by appellant Arturo G. Michel, John M. Hopkins, THOMPSON & HORTON LLP, 3200 Southwest Freeway, Suite [518 S.W.3d 541] 2000, Houston, TX 77027, Holly G. McIntush, 400 West 15th Street, Suite 1430, Austin, TX Herbert Lenton, Key's operations manager, in 78704, for Appellee. accordance with HISD procedures. In late November 2009, Grier hired a law firm to Panel consists of Justices Bland, Massengale, and investigate the transfer of property, which by then Lloyd. had attracted some media attention. The investigation focused on the transfer of property OPINION from Key to Kashmere and on allegations that teachers at Key provided students with actual test Michael Massengale, Justice problems to practice for standardized tests in This is an appeal from the dismissal of a lawsuit order to increase their scores. against the former superintendent of the Houston The attorney-investigators questioned Caleb and Independent School District. The appellants, who Lenton, as well as others connected to Caleb, are former employees of the school district, including appellants Jackie Anderson, Patrick sought injunctive and declaratory relief stemming Cockerham, and Diann Banks. Anderson was a from an investigation that culminated in a union representative and friend of Caleb who recommendation to terminate their employment. served as the Special Education Department Chair The pleadings do not allege a facially valid at Key from 2008 to 2009. Cockerham had been challenge to any constitutional right, and they are an aide to Anderson at Key, and he transferred to barred by governmental immunity. As such, the Kashmere with Caleb. Banks had been a math trial court properly granted the plea to the teacher at Key from August 2005 through June jurisdiction. We affirm. 2010.

Background Upon completion of the investigation, the law firm reported its findings to HISD. Grier shared Caleb v. Carranza, 518 S.W.3d 537 (Tex. App. 2017)

the findings with the media, the public, and the While the appeal was pending in this court, Caleb Texas Education Agency. Based on the report, settled her claims against Grier, and she filed an Grier terminated Caleb in April 2010, and he agreed motion to dismiss her appeal, which we proposed termination of Cockerham and now grant. See TEX. R. APP. P. 42.1(a)(1). The nonrenewal of the one-year contracts of Anderson granting of this motion leaves Anderson, and Banks. Upon instruction from Grier, Lenton's Cockerham, Banks, and Lenton as the remaining supervisor recommended that he be terminated. appellants. While this appeal has been pending, Administrative hearings cleared Anderson and Grier was replaced by Richard A. Carranza as Cockerham, and the hearing officers HISD superintendent, who has been substituted recommended that they not be dismissed from as the appellee. TEX. R. APP. P. 7.2(a). employment. Lenton also sought an administrative hearing, but the appellate record Analysis does not indicate the results of that hearing. Although Banks was cleared of allegations that In a single issue, the appellants argue that Grier she participated in the standardized testing was not immune from suit because scandal, she resigned due to an unpleasant work environment. [518 S.W.3d 542]

Caleb, Anderson, Cockerham, Banks, and Lenton he violated the state constitution, acting outside filed suit against numerous defendants, including his legal authority and his lawful discretion as Grier in his official capacity. Among the superintendent of HISD. We review de novo the defendants, this appeal pertains only to Grier. The trial court's ruling on a plea to the jurisdiction. live pleading at the time the claims against Grier See, e.g. , Klumb v. Hous. Mun. Emps. Pension were dismissed was the fifth amended petition. Sys. , 458 S.W.3d 1, 8 (Tex. 2015). That petition alleged that Grier violated various "Sovereign immunity requires the state's consent provisions of the Texas Constitution when he before it can be sued." Hall v. McRaven , 508 "terminated" the appellants "based on a report he S.W.3d 232, 232 (Tex. 2017). "Governmental commissioned" without giving them "the immunity operates like sovereign immunity to opportunity to refute the claims contained within afford similar protection to subdivisions of the before making them public." State, including counties, cities, and school The appellants sought a declaration that their districts." Harris Cty. v. Sykes , 136 S.W.3d 635, constitutional rights were violated by Grier. They 638 (Tex. 2004). "[I]n certain narrow instances, a requested an injunction preventing Grier from suit against a state official can proceed even in the violating their constitutional rights and requiring absence of a waiver of immunity if the official's him to reinstate them "to positions of actions are ultra vires. " Hall , 508 S.W.3d at 232. employment occupied or reasonably comparable "An ultra vires action requires a plaintiff to to those respectively occupied before November ‘allege, and ultimately prove, that the officer acted 12, 2009, with all attendant benefits" and to without legal authority or failed to perform a expunge the report from their personnel records. purely ministerial act.’ " Id. (quoting City of El The appellants also sought recovery of attorney's Paso v. Heinrich , 284 S.W.3d 366, 372 (Tex. fees and costs. 2009) ). "The basic justification for this ultra vires exception to sovereign immunity is that Grier filed a plea to the jurisdiction. He did not ultra vires acts—or those acts without authority— challenge any jurisdictional facts. Instead, he should not be considered acts of the state at all." argued that he was immune from the claims. The Id. trial court granted the plea and dismissed the claims against Grier with prejudice. That order "[A] government officer with some discretion to was appealed. interpret and apply a law may nonetheless act Caleb v. Carranza, 518 S.W.3d 537 (Tex. App. 2017)

‘without legal authority,’ and thus ultra vires , if man, or set of men, is entitled to exclusive he exceeds the bounds of his granted authority or separate public emoluments, or privileges." TEX. if his acts conflict with the law itself." Hous. Belt CONST. art. 1, § 3. The appellants contend that & Terminal Ry. Co. v. City of Hous. , 487 S.W.3d Lenton was subjected to "disparate treatment" as 154, 158 (Tex. 2016). Governmental immunity compared to other employees who participated in thus does not bar "suits complaining of either an moving property from Key to Kashmere.3 The officer's failure to perform a ministerial act or an appellants' brief contains no argument to support officer's exercise of judgment or limited discretion an equal-protection claim by Anderson, without reference to or in conflict with the Cockerham, or Banks. constraints of the law authorizing the official to act." Id. at 163. To establish a viable equal-protection claim under the Texas Constitution, Lenton would have to In this case, the appellants alleged that the prove he was "treated differently from others "termination of their employment" and the similarly situated." Klumb , 458 S.W.3d at 13. commissioning and publication of the However, there is a fundamental inconsistency investigation report violated their rights under between that legal standard and a single public the Texas Constitution. An allegation that a employee's allegation that he has been wrongly government officer violated the Texas terminated from employment. Cf. Engquist v. Constitution is an allegation that the officer acted Oregon Dept. of Agr. , 553 U.S. 591, 605, 128 ultra vires , that is, in conflict with the law S.Ct. 2146, 2155, 170 L.Ed.2d 975 (2008) constraining his discretion. See id. Nevertheless, (applying federal Equal Protection Clause); see when a plaintiff sues to vindicate a constitutional also Klumb , 458 S.W.3d at 13 n.8 right, "immunity from suit is not waived if the (acknowledging that federal equal-protection constitutional claims are facially invalid." Klumb , authorities may be persuasive authority in the 458 S.W.3d at 13 (citing Andrade v. NAACP of context of state equal-protection claims). Austin , 345 S.W.3d 1, 11 (Tex. 2011) ). "[E]mployment decisions are quite often subjective and individualized, resting on a wide The appellants alleged that "the sole reason for array of factors that are difficult to articulate and the termination of their employment" was their quantify." Engquist , 553 U.S. at 604, 128 S.Ct. at unwillingness to comply with a request by Grier 2154. Moreover, "recognition of a class-of-one and his investigators to falsely implicate Caleb on theory of equal protection in the public various allegations and to implicate another employment context—that is, a claim that the person for cheating on standardized tests. The State treated an employee differently from others appellants also complained that their termination for a bad reason, or for no reason at all—is simply was based on a report commissioned by Grier, contrary to the concept of at-will employment." which he published before giving them an Id. at 606, 128 S.Ct. at 2156. We therefore opportunity to refute its contents. The appellants conclude the appellants' petition failed to plead a contend that these acts violated the Texas Bill of facially valid equal-protection claim by alleging Rights, Sections 3 (equal rights), 8 (freedom of that Lenton, alone, suffered an adverse speech), and 19 (due course of law).2 employment consequence as compared to other employees. I. Equal protection II. Free speech The Texas Constitution provides that all people "have equal rights, and no The Texas Constitution provides: "Every person shall be at liberty to speak, write or publish his [518 S.W.3d 543] opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the Caleb v. Carranza, 518 S.W.3d 537 (Tex. App. 2017)

press." TEX. CONST. art. I, § 8. The appellants' As public employees, the appellants also would be argument regarding free-speech violations is required to establish that they spoke as citizens, primarily focused on public statements by Caleb, rather than as employees pursuant to their official who has dismissed her appeal. The only free- duties. While "the First Amendment protects a speech argument relating to the remaining public employee's right, in certain circumstances, appellants is that they had a constitutionally to speak as a citizen addressing matters of public protected right to refuse to "testify falsely" against concern," Garcetti v. Ceballos , 547 U.S. 410, 417, other employees. 126 S.Ct. 1951, 1957, 164 L.Ed.2d 689 (2006), not all speech by public employees is constitutionally Other than quoting Section 8 of the Texas Bill of protected. When "public employees make Rights, the appellants offer no legal argument or statements pursuant to their official duties, the authority for their contention that they alleged a employees are not speaking as citizens for First facially valid free-speech claim. In particular, the Amendment purposes, and the Constitution does appellants offer no arguments based on the text, not insulate their communications from employer history, or purpose of Section 8 that it provides discipline." Id. at 421, 126 S.Ct. at 1960. However, them any greater protection in this context than "the mere fact that a citizen's speech concerns that provided by the First Amendment. As such, information acquired by virtue of his public we may rely upon persuasive authorities applying employment does not transform that speech into free-speech protections under both the federal employee—rather than citizen—speech." Lane v. and Texas constitutions. See, e.g. , Tex. Dept. of Franks , ––– U.S. ––––, 134 S.Ct. 2369, 2379, Transp. v. Barber , 111 S.W.3d 86, 106 (Tex. 189 L.Ed.2d 312 (2014). Accordingly, the critical 2003) ; Davenport v. Garcia , 834 S.W.2d 4, 40 question is "whether the speech at issue is itself (Tex. 1992) (Hecht, J., concurring) ("When state ordinarily within the scope of an employee's and federal provisions overlap or correspond, duties, not whether it merely concerns those state law, as well as federal law and the duties." Id.

[518 S.W.3d 544] The appellants' claim for retaliation against their exercise of free-speech rights is facially invalid, law of other states, may be helpful in analyzing because their pleadings establish that the their proper application."). "speech" at issue was made pursuant to their official duties. In their petition, they suggested A governmental employee's speech may be that they exercised free speech when they refused entitled to constitutional protections. See, e.g. , to "falsely implicate Caleb on various allegations" Turner v. Perry , 278 S.W.3d 806, 816 (Tex. or to implicate another employee for cheating on App.—Houston [14th Dist.] 2009, pet. denied) ; standardized tests. But they also alleged that they Price v. Tex. Alcoholic Beverage Com'n , No. 01- were ordered by HISD officials to take part in 12-01164-CV, 2014 WL 3408696, at *6 (Tex. those interviews. Furthermore, the appellants App.—Houston [1st Dist.] July 10, 2014, pet. alleged facts that show that these meetings were denied) (mem. op.). To prevail on a constitutional directly related to their employment. The free-speech retaliation claim, the appellants interviews concerned allegations of cheating on would be required to establish that: (1) they standardized tests and misappropriation of school suffered an adverse employment decision; (2) property. Accordingly, it is undisputed that the their "speech" involved a matter of public speech (or refusal to speak) at issue was made concern;4 (3) their interest in commenting on within the chain of command and that it was matters of public concern outweighed their related to the appellants' jobs, which are both employer's interest in promoting efficiency; and factors that previously have been considered in (4) their speech motivated the adverse determining that speech was made as an employment decision. See Beattie v. Madison employee and not as a citizen. See, e.g. , Davis v. Cty. Sch. Dist. , 254 F.3d 595, 601 (5th Cir. 2001). McKinney , 518 F.3d 304, 313 (5th Cir. 2008). Caleb v. Carranza, 518 S.W.3d 537 (Tex. App. 2017)

Moreover, assisting in an employer's investigation he was a public employee, that he was discharged, into workplace theft is ordinarily within the scope that stigmatizing charges were made against him of an employee's job duties, and a teacher's duties in connection with his discharge, that the charges include ensuring compliance with standardized were false, that the charges were made public, testing procedures. That the appellants were that he requested a name-clearing hearing, and required to that the hearing was denied." Arrington , 970 F.2d at 1447 ; see Brantley , 365 S.W.3d at 106. [518 S.W.3d 545] The "public charges must be so stigmatizing that they create a ‘badge of infamy’ that destroys speak in the course of their assistance in the plaintiffs' ability to obtain other employment." investigation did not "mean [their] supervisors Arrington , 970 F.2d at 1447 (quoting Evans v. were prohibited from evaluating [their] City of Dall. , 861 F.2d 846, 851 (5th Cir. 1988) ); performance." Garcetti , 547 U.S. at 422, 126 S.Ct. Brantley , 365 S.W.3d at 106. at 1954. As such, the speech that the appellants alleged as the basis for their employer's The appellants' petition affirmatively negated an retaliation was made pursuant to their official element of their due-course-of-law claim. The duties. It is therefore outside the ambit of free- appellants all alleged that they requested and speech protection, and they have failed to allege a received a name-clearing hearing. Cockerham, facially valid constitutional claim. Accord Caleb v. Anderson, and Banks alleged that they were Grier , 598 Fed.Appx. 227, 236–37 (5th Cir. successful at their hearings and that the hearing 2015), cert. denied , ––– U.S. ––––, 135 S.Ct. officers found that the allegations against them 2813, 192 L.Ed.2d 849 (2015). were meritless and recommended that they be retained. Lenton did not allege an outcome of his III. Due course of law hearing. In addition, Banks alleged that she was hired by another school district after her The Texas Constitution provides: "No citizen of resignation, demonstrating that any charges this State shall be deprived of life, liberty, leveled against her were not so stigmatizing as to property, privileges or immunities, or in any prevent her from obtaining employment manner disfranchised, except by the due course of elsewhere. Accordingly, each appellant failed to law of the land." TEX. CONST. art. I, § 19. The allege a facially valid due-course-of-law claim. appellants have offered no argument that Section 19 has an application to their claims that is Conclusion substantively different than the due-process protections of the Fourteenth Amendment. As There is no facially valid constitutional claim such, our analysis is informed by authorities among the appellants' allegations. Accordingly, applying the Fourteenth Amendment. See, e.g. , there is no actionable allegation that Grier's Univ. of Tex. Med. Sch. at Hous. v. Than , 901 challenged actions were ultra vires so as to S.W.2d 926, 929 (Tex. 1995). remove the shield of governmental immunity. We affirm the judgment of the trial court. "A public employer may unconstitutionally deprive its employee of a liberty interest if it -------- discharges him under stigmatizing circumstances without giving the employee an opportunity to Notes: clear his name." Arrington v. County of Dall. , 1 For a more detailed discussion of the factual 970 F.2d 1441, 1447 (5th Cir. 1992) ; see Brantley background, see Caleb v. Grier, No. H-12-0675, v. Texas Youth Com'n , 365 S.W.3d 89, 106 (Tex. 2015 WL 1954678 (S.D. Tex. Apr. 29, 2015), and App.—Austin 2011, no pet.). "To assert a claim for Caleb v. Grier, No. H-12-0675, 2013 WL 2902785 the deprivation of this constitutional right to a (S.D. Tex. Jun. 13, 2013), aff'd, 598 Fed.Appx. name-clearing hearing, a plaintiff must allege that Caleb v. Carranza, 518 S.W.3d 537 (Tex. App. 2017)

227, 237 (5th Cir. 2015) (per curiam), cert. denied, ––– U.S. ––––, 135 S.Ct. 2813, 192 L.Ed.2d 849 (2015).

2 In addition to sections 3, 8, and 19, in their Fifth

Amended Petition the appellants alleged violations of section 1 (freedom and sovereignty of state). In their appellate brief, they suggest an additional violation of section 12 (habeas corpus). We confine our analysis to sections 3, 8, and 19, as these are the only allegations analyzed in the appellants' brief. See Tex. R. App. P. 38.1(i).

3 The appellants' brief also suggests that Lenton

was treated differently than two teachers who "suppressed information" about cheating on standardized tests yet were "rewarded with continued employment." These factual allegations were not a basis for the cause of action against Grier pleaded in the trial court, and thus we need not address those allegations, which were not before the trial court and are being made for the first time on appeal.

4 At least for purposes of the First Amendment,

the fact that the appellants in this case have alleged retaliation based on their refusal to speak does not affect the analysis. See Riley v. Nat'l Fed'n of the Blind of N.C., 487 U.S. 781, 796–97, 108 S.Ct. 2667, 2677–78, 101 L.Ed.2d 669 (1988).

-------- City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

284 S.W.3d 366 constitutional provisions. We affirm in part and The CITY OF EL PASO, et al., Petitioners, reverse in part the court of appeals' judgment and v. remand this case to the trial court for further Lilli M. HEINRICH, Respondent. proceedings. No. 06-0778. Supreme Court of Texas. I Argued November 13, 2007. Background Decided May 1, 2009. Lilli M. Heinrich is the widow of Charles D. [284 S.W.3d 368] Heinrich, a member of the El Paso Police Department who died in August 1985 from Jennifer F. Callan, Laura P. Gordon, Asst. wounds received in the line of duty. Shortly after City Attys., Michele Little Locke, John Lomax Charles died, the El Paso Firemen & Policemen's Anderson, El Paso, Eric G. Calhoun, Richard J. Pension Fund began paying Heinrich monthly Pradarits Jr., Travis & Calhoun, P.C., Dallas, survivor benefits equal to 100% of the monthly Robert D. Klausner, Stuart A. Kaufman, Klausner pension her husband had earned.1 The parties & Kaufman, P.A., Plantation, FL, for Petitioners. contest how those payments were apportioned. The City of El Paso, the El Paso Firemen & Stewart W. Forbes, Forbes & Forbes, El Paso, Policemen's Pension Fund ("the Fund"), the for Respondent. Fund's Board of Trustees ("the Board"), and the individual board members contend that the Philip Durst, Deats Durst Owen & Levy, Fund's bylaws assigned only two-thirds of this P.L.L.C., Austin, for Amicus Curiae Texas State payment to Heinrich, the other third being paid to Association of Fire Fighters. her on behalf of her then-minor child. Heinrich, on the other hand, contends that, Kristofer S. Monson, Asst. Solicitor Gen., notwithstanding the bylaws, the Board voted to Austin, for Amicus Curiae State of Texas. award her 100% of Charles' pension benefits in her own right, as more fully explained below. Chief Justice JEFFERSON delivered the opinion of the Court. Accordingly, when in 2002 the Board reduced the monthly payments to Heinrich by "Sovereign immunity protects the State from one-third after Heinrich's son turned 23, Heinrich lawsuits for money damages." Tex. Nat. Res. filed this lawsuit, alleging that petitioners violated Conservation Comm'n v. IT-Davy, 74 S.W.3d the statute governing the Fund by reducing her 849, 853 (Tex.2002). But "an action to determine benefits retroactively. Heinrich sought both or protect a private party's rights against a state declaratory relief and an injunction restoring official who has acted without legal or statutory Heinrich to the "status quo from [the] date of the authority is not a suit against the State that illegal act." Petitioners filed pleas to the sovereign immunity bars." Fed. Sign v. Tex. S. jurisdiction asserting that governmental Univ., 951 S.W.2d 401, 405 (Tex.1997). Today we immunity shielded the governmental entities examine the intersection of these two rules. We from suit and that the individual board members conclude that while governmental immunity enjoyed official immunity. The trial court denied the pleas, and petitioners filed an interlocutory [284 S.W.3d 369] appeal. generally bars suits for retrospective monetary The court of appeals affirmed, holding that "a relief, it does not preclude prospective injunctive party may bring a suit seeking declaratory relief remedies in official-capacity suits against against state officials who allegedly act without government actors who violate statutory or legal or statutory authority and such suit is not a City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

`suit against the state.'" 198 S.W.3d 400, 406. 432 (Tex.1994) (suit challenging state officials' The court acknowledged that, if successful, construction of compulsory school-attendance Heinrich would be entitled to past and future law)); see also Fed. Sign., 951 S.W.2d at 404 ("A benefits, but held that Heinrich's suit made a private litigant does not need legislative valid claim for her vested right to pension benefits permission to sue the State for a state official's rather than money damages. Id. at 407. We violations of state law.") (citations omitted). We granted the petition for review in order to clarify explained the rationale behind this exception to the types of relief that may be sought without governmental immunity in Federal Sign: legislative consent.2 50 Tex. Sup.Ct. J. 910 (June 22, 2007). A state official's illegal or unauthorized actions are not acts of the State. Accordingly, an II action to determine or protect a private party's Discussion rights against a state official who has acted A without legal or statutory authority is not a suit Ultra Vires Claims against the State that sovereign immunity bars. In other words, we distinguish suits to determine a Petitioners contend that although Heinrich party's rights against the State from suits seeking requests declaratory and equitable relief, her damages. A party can maintain a suit to claim is essentially for past and future money determine its rights without legislative damages, and that governmental immunity permission. therefore bars her suit. As we said in Reata Construction Corp. v. City of Dallas, Fed. Sign, 951 S.W.2d at 404 (citations "`[s]overeign immunity protects the State from omitted). lawsuits for money damages.' Political subdivisions of the state ... are entitled to such On this basis, Heinrich argues that rather immunity— than money damages, she seeks only equitable and injunctive relief under the Uniform [284 S.W.3d 370] Declaratory Judgment Act. That Act is a remedial statute designed "to settle and to afford relief referred to as governmental immunity— unless it from uncertainty and insecurity with respect to has been waived." Reata, 197 S.W.3d 371, 374 rights, status, and other legal relations." TEX. (Tex.2006) (citations omitted); see also Wichita CIV. PRAC. & REM.CODE § 37.002(b). It Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 provides: "A person ... whose rights, status, or n. 3 (Tex. 2003). We have said repeatedly that the other legal relations are affected by a statute, Legislature is in the best position to waive or municipal ordinance, contract, or franchise may abrogate immunity, "because this allows the have determined any question of construction or Legislature to protect its policymaking function." validity arising under the ... statute, ordinance, IT-Davy, 74 S.W.3d at 854 (citations omitted) contract, or franchise and obtain a declaration of (collecting cases). rights, status, or other legal relations thereunder." Id. § 37.004(a). The Act, however, does not Heinrich concedes that the City, Fund, and enlarge a trial court's jurisdiction, and a litigant's Board enjoy governmental immunity from suit, request for declaratory relief does not alter a suit's but argues that because her claim alleges a underlying nature.3 IT-Davy, 74 S.W.3d reduction in her benefits that was unauthorized by law, it is not barred. This is so, she says, [284 S.W.3d 371] because "[p]rivate parties may seek declaratory relief against state officials who allegedly act at 855; State v. Morales, 869 S.W.2d 941, 947 without legal or statutory authority." Id. at 855 (Tex.1994). It is well settled that "private parties (citing Tex. Educ. Agency v. Leeper, 893 S.W.2d cannot circumvent the State's sovereign immunity City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

from suit by characterizing a suit for money contract. We explained this distinction in W.D. damages ... as a declaratory-judgment claim." IT- Haden Co. v. Dodgen: Davy, 74 S.W.3d at 856 (citing W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 842 [A]lthough [Epperson] ar[ose] out of [ ] (1958)). contract transaction ... [it] appears to fall into the class of cases projected by United States v. Lee, Heinrich relies on State v. Epperson, 121 Tex. [106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882)].4 80, 42 S.W.2d 228, 231 (1931), in which we held In that class of cases it is held that suits for that a suit against a tax collector for the recovery property alleged to be unlawfully or wrongfully of money (alleged to be due under a contract and withheld from the rightful owner by officers of the withheld unlawfully) was not barred by immunity. state are not suits against the sovereign itself and There, we noted that the tax collector had no may be maintained without permission of the discretion under the governing law to deny sovereign. payment on Epperson's contract: 158 Tex. 74, 308 S.W.2d 838, 841 (1958). In By legislative act the state has constituted the other words, where statutory or constitutional tax collector of the county its agent to receive provisions create an entitlement to payment, suits delinquent taxes collected under such contract, seeking to require state officers to comply with and it is the duty of such officer to pay all fees and the law are not barred by immunity merely commissions lawfully incurred in the collection because they compel the state to make those thereof to the various parties who may be entitled payments. This rule is generally consistent with thereto. Under such circumstances, the tax the letter and spirit of our later caselaw. In IT- collector's duty with reference to money Davy, we distinguished permissible declaratory- belonging to persons who are entitled under valid judgment suits against state officials contracts to receive the same from him is purely ministerial. If he withholds the payment of such [284 S.W.3d 372] funds when a person is lawfully entitled to receive same, he has failed to discharge a duty imposed "allegedly act[ing] without legal or statutory upon him by law and his act is a wrongful one. authority" from those barred by immunity: "In contrast [to suits not implicating sovereign Epperson, 42 S.W.2d at 231. We therefore immunity], declaratory-judgment suits against concluded that although the trial court would "not state officials seeking to establish a contract's possess jurisdiction to enforce the specific validity, to enforce performance under a contract, performance of the contract relied upon by or to impose contractual liabilities are suits Epperson or to award damages for any breach of against the State. That is because such suits said contract," Epperson's suit was "simply an attempt to control state action by imposing action to compel an officer, as agent of the state, liability on the State." 74 S.W.3d at 855-56 to pay over funds to a party who claims to be (citations omitted) (emphasis added). lawfully entitled thereto." Id. From this rationale, it is clear that suits to Thus, the rule arising out of Epperson is that require state officials to comply with statutory or while suits for contract damages against the state constitutional provisions are not prohibited by are generally barred by immunity, where a statute sovereign immunity, even if a declaration to that or the constitution requires that government effect compels the payment of money. To fall contracts be made or performed in a certain way, within this ultra vires exception, a suit must not leaving no room for discretion, a suit alleging a complain of a government officer's exercise of government official's violation of that law is not discretion, but rather must allege, and ultimately barred, even though it necessarily involves a prove, that the officer acted without legal authority or failed to perform a purely ministerial City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

act. Compare Epperson, 42 S.W.2d at 231 ("the B tax collector's duty ... is purely ministerial") with Proper Parties Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 706 (Tex.2003) (newly elected Nonetheless, as a technical matter, the commissioners court immune from suit where it governmental entities themselves—as opposed to "acted within its discretion to protect the their officers in perceived interests of the public" in rejecting contract approved by predecessor), and Dodgen, [284 S.W.3d 373] 308 S.W.2d at 842 (suit seeking "enforcement of contract rights" barred by immunity in the their official capacity—remain immune from suit. absence of any "statutory provision governing or We have been less than clear regarding the limiting the manner of sale"). Thus, ultra vires permissible use of a declaratory remedy in this suits do not attempt to exert control over the type of ultra vires suit.6 Must it be brought state—they attempt to reassert the control of the directly against the state or its subdivisions? Or state.5 Stated another way, these suits do not seek must it be brought against the relevant to alter government policy but rather to enforce government actors in their official capacity? existing policy. Compare Fed. Sign, 951 S.W.2d at 404 ("A private litigant does not need legislative Further, while "[a] lack of immunity may permission to sue the State for a state official's hamper governmental functions by requiring tax violations of state law.") (citations omitted), with resources to be used for defending lawsuits ... IT-Davy, 74 S.W.3d at 855 ("Private parties may rather than using those resources for their seek declaratory relief against state officials who intended purposes," Reata Constr. Corp., 197 allegedly act without legal or statutory S.W.3d at 375, this reasoning has not been authority.") (citations omitted). It seems to us, extended to ultra vires suits, see Fed. Sign, 951 however, that because the rule that ultra vires S.W.2d at 404 (citing Dir. of the Dep't of Agric. & suits are not "suit[s] against the State within the Env't v. Printing Indus. Ass'n of Tex., 600 S.W.2d rule of immunity of the State from suit" derives 264, 265-66 (Tex.1980) (legislative consent not from the premise that the "acts of officials which required for suit for injunctive relief against state are not lawfully authorized are not acts of the agency to halt unauthorized printing equipment State," Cobb, 190 S.W.2d at 712, it follows that and printing activities), Tex. Highway Comm'n v. these suits cannot be brought against the state, Tex. Ass'n of Steel Imps., Inc., 372 S.W.2d 525, which retains immunity, but must be brought 530 (Tex.1963) (legislative consent not required against the state actors in their official capacity.7 for declaratory judgment suit against Highway This is true even though the suit is, for all Commission to determine the parties' rights), and practical purposes, against the state. See Brandon Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 83 709, 712 (1945) (legislative consent not required L.Ed.2d 878 (1985) ("[A] judgment against a for declaratory judgment suit against State public servant `in his official capacity' imposes Comptroller to determine parties' rights under tax liability on the entity that he represents provided, statute)). Further, extending immunity to officials of course, the public entity received notice and an using state resources in violation of the law would opportunity to respond."); Tex. A & M Univ. Sys. not be an efficient way of ensuring those v. Koseoglu, 233 S.W.3d 835, 844 (Tex.2007) ("It resources are spent as intended. This is is fundamental that a suit against a state official is particularly true since, as discussed below, suits merely `another way of pleading an action against that lack merit may be speedily disposed of by a the entity of which [the official] is an agent.'") plea to the jurisdiction. See Tex. Dep't of Parks & (quoting Kentucky v. Graham, 473 U.S. 159, 165, Wildlife v. Miranda, 133 S.W.3d 217, 226 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). (Tex.2004). C City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

Permissible Relief immunity is not waived." Id. This does not mean, however, that a judgment that involves the But the ultra vires rule is subject to payment of money necessarily implicates important qualifications. Even if such a claim may immunity. Drawing the line at monetary relief is be brought, the remedy may implicate immunity. itself problematic, as "[i]t does not take much Cf. 13 CHARLES ALAN WRIGHT & ARTHUR R. lawyerly inventiveness to convert a claim for MILLER, FEDERAL PRACTICE & PROCEDURE payment of a past due sum (damages) into a § 3524.3 (under federal prayer for an injunction against refusing to pay the sum, or for a declaration that the sum must be [284 S.W.3d 374] paid, or for an order reversing the agency's decision not to pay." Bowen v. Massachusetts, immunity law, an ultra vires suit may be brought 487 U.S. 879, 915-16, 108 S.Ct. 2722, 101 L.Ed.2d but "if the defendant is a state officer, sovereign 749 (1988) (Scalia, J., dissenting) (discussing immunity bars the recovery of damages from the section 702 of the Administrative Procedure Act, state treasury in a private suit"). This is a curious which waives sovereign immunity in actions situation: the basis for the ultra vires rule is that against federal agencies as long as the plaintiff a government official is not following the law, so seeks "relief other than money damages") that immunity is not implicated, but because the (quoting 5 U.S.C. 702 (2000)). suit is, for all practical purposes, against the state, its remedies must be limited. Cf. Fla. Dep't of Parsing categories of permissible relief in State v. Treasure Salvors, Inc., 458 U.S. 670, cases implicating immunity inevitably involves 685, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982) compromise. See, e.g., DOUGLAS LAYCOCK, ("There is a well-recognized irony in Ex parte MODERN AMERICAN REMEDIES 482 (3d ed. Young; unconstitutional conduct by a state officer 2002) ("The law of remedies against governments may be `state action' for purposes of the and government officials is a vast and complex Fourteenth Amendment yet not attributable to body of doctrine, full of technical distinctions, the State for purposes of the Eleventh."). We fictional explanations, and contested recently held that retired firefighters could not compromises."). The United States Supreme pursue a declaratory judgment action against the Court has held that, under federal immunity law, City to recover amounts allegedly previously claims for prospective injunctive relief are withheld from lump-sum termination payments permissible, while claims for retroactive relief are in violation of the Local Government Code. City of not, as such an award is "in practical effect Houston v. Williams, 216 S.W.3d 827, 828 indistinguishable in many aspects from an award (Tex.2007). Without discussing Epperson, we of damages against the State." Edelman v. applied the rule from IT-Davy and Dodgen that Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 39 the declaratory judgment act cannot be used to L.Ed.2d 662 (1974). This rule originated in Ex circumvent immunity, noting that "[t]he only parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. injury the retired firefighters allege has already 714 (1908), in which the Court held that an action occurred, leaving them with only one plausible to restrain a government official from remedy—an award of money damages." Id. at unconstitutional conduct was not barred by 829. Williams stands for the proposition, then, immunity. Later, in Edelman, the Court that retrospective monetary claims are generally recognized that the distinction between barred by immunity. prospective and retrospective relief "will not in many instances be that between day and night" We also stated that "in every suit against a and cautioned that a fiscal impact on the governmental entity for money damages, a court must first determine the parties' contract or [284 S.W.3d 375] statutory rights; if the sole purpose of such a declaration is to obtain a money judgment, State did not necessarily implicate immunity: City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

The injunction issued in Ex parte Young was Court shed further light on the issue in Milliken v. not totally without effect on the State's revenues, Bradley, 433 U.S. 267, 269, 97 S.Ct. 2749, 53 since the state law which the Attorney General L.Ed.2d 745 (1977), a case involving was enjoined from enforcing provided substantial desegregation of the Detroit school system. The monetary penalties against railroads which did Supreme Court upheld a trial court's order not conform to its provisions. Later cases from requiring state officials to spend $6 million on this Court have authorized equitable relief which education to remedy effects of segregation. has probably had greater impact on state Milliken, 433 U.S. at 290, 97 S.Ct. 2749. The treasuries than did that awarded in Ex parte Court held that this relief was permissible under Young. In Graham v. Richardson, 403 U.S. 365, Edelman: "That the programs are also 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), Arizona and `compensatory' in nature does not change the fact Pennsylvania welfare officials were prohibited that they are part of a plan that operates from denying welfare benefits to otherwise prospectively to bring about the delayed benefits qualified recipients who were aliens. In Goldberg of a unitary school system." Id.; see also 13 v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d CHARLES ALAN WRIGHT & ARTHUR R. 287 (1970), New York City welfare officials were MILLER, FEDERAL PRACTICE & PROCEDURE enjoined from following New York State § 3524.3 (noting that, under Edelman, procedures which authorized the termination of "[i]njunctions requiring expenditure of state benefits paid to welfare recipients without prior funds are acceptable, so long as the order is hearing. But the fiscal consequences to state prospective" but "[r]etroactive relief, including treasuries in these cases were the necessary result compensatory damages from state funds are of compliance with decrees which by their terms barred"). were prospective in nature. State officials, in order to shape their official conduct to the This compromise between prospective and mandate of the Court's decrees, would more likely retroactive relief, while imperfect, best balances have to spend money from the state treasury than the government's immunity with the public's right if they had been left free to pursue their previous to redress in cases involving ultra vires actions, course of conduct. Such an ancillary effect on the and this distinction "appear[s] in the immunity of state treasury is a permissible and often an the United States, and in the law of most states' inevitable consequence of the principle immunity from state-law claims." LAYCOCK, announced in Ex parte Young, supra. MODERN AMERICAN REMEDIES at 482. It also comports with the modern justification for Id. at 667-68, 94 S.Ct. 1347 (footnote immunity: protecting the public fisc. Tooke v. omitted). The retroactive portion of the Edelman City of Mexia, 197 district court's decree was different, however, as "[i]t require[d] payment of state funds, not as a [284 S.W.3d 376] necessary consequence of compliance in the future with a substantive federal-question S.W.3d 325, 331-32 (Tex.2006) (observing that determination, but as a form of compensation to immunity "shield[s] the public from the costs and those whose applications were processed on the consequences of improvident actions of their slower time schedule at a time when petitioner governments"); Federal Sign, 951 S.W.2d at 417 was under no court-imposed obligation to (Enoch, J., dissenting) (noting that suits against conform to a different standard." Id. at 668, 94 the state would deplete treasury resources and tax S.Ct. 1347. funds necessary to operate the government). Moreover, it is generally consistent with the way While "[t]he line between prospective and our courts of appeals have interpreted Williams. retrospective remedies is neither self-evident nor See, e.g., City of Round Rock v. Whiteaker, 241 self-executing," LAYCOCK, MODERN S.W.3d 609, 633-34 (Tex.App.-Austin 2007, pet. AMERICAN REMEDIES at 483, the Supreme denied) (approving, under Williams, dichotomy City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

between declaratory and injunctive claims Comm'n v. Little-Tex Insulation Co., 39 S.W.3d regarding past statutory violations and those 591, 598 (Tex.2001) (noting that governmental seeking only to compel the city to follow the law immunity "does not shield the State from an in the future; the government was immune from action for compensation under the takings the former but not the latter); Bell v. City of clause"); cf. WRIGHT & MILLER, FEDERAL Grand Prairie, 221 S.W.3d 317, 325 (Tex.App.- PRACTICE & PROCEDURE § 3524.3 ("If the state Dallas 2007, no pet.) (holding that, under cannot invoke its immunity, retroactive relief Williams, firefighters' requested declaration against it is allowed."). regarding past statutory violation was barred, but to the extent the requested declaration concerned Heinrich has not alleged a takings claim. In future violations, the claim was not barred, the trial court, Heinrich alleged only that "a suit providing the firefighters did not seek an award of for equitable relief against a governmental entity money damages). And finally, it ensures that for violation of a provision of the Texas Bill of statutes specifically directing payment, like any Rights is excepted from ... sovereign immunity other statute, can be judicially enforced going under Texas Constitution article [I], section 29" forward. without specifying which provision of the Bill of Rights had been violated. In the court of appeals, This approach is inconsistent with Epperson, however, she clarified that her constitutional however, in which we held that, if successful, complaint was a "violation of Article 1, section Epperson would be entitled to "the sum of 16." TEX. CONST. art. I, § 16 ("No bill of $93,000 which belonged to him as his attainder, ex post facto law, retroactive law, or commission for services rendered." Epperson, 42 any law impairing the obligation of contracts, S.W.2d at 229. In that respect, Epperson conflicts shall be made."). Petitioners contend that she with Williams, in which we implied that waived this argument by failing to prospective remedies might not be barred even though retrospective monetary ones were. [284 S.W.3d 377] Williams, 216 S.W.3d at 829 (noting that "[t]he only injury the retired firefighters allege has raise it in the trial court. See Tex. Dep't of already occurred, leaving them with only one Protective & Regulatory Servs. v. Sherry, 46 plausible remedy— an award of money damages" S.W.3d 857, 861 (Tex.2001) ("`[A]s a rule, a and that "they assert no right to payments from claim, including a constitutional claim, must have the City in the future"). The best way to resolve been asserted in the trial court in order to be this conflict is to follow the rule, outlined above, raised on appeal.'"') (citations omitted). Even if that a claimant who successfully proves an ultra Heinrich's constitutional argument was properly vires claim is entitled to prospective injunctive presented, however, it has no merit. Heinrich relief, as measured from the date of injunction. does not challenge the governing statute or Cf. Edelman, 415 U.S. at 669, 94 S.Ct. 1347 (using bylaws, but rather the Board's actions under those entry of injunction to distinguish retrospective provisions. Indeed, Heinrich argues that "[t]he from prospective relief). Thus, while the ultra Pension Board and its individual members acted vires rule remains the law, see Federal Sign, 951 outside their authority and in violation of the S.W.2d at 404, Epperson's retrospective remedy Texas Constitution when they reduced does not. [Heinrich's] benefits." Because Heinrich does not allege that any law sanctioned the retroactive But this rule is not absolute. For example, a reduction in her benefits, her constitutional claimant who successfully proves a takings claim argument fails.8 would be entitled to compensation, and the claim would not be barred by immunity even though the As we have repeatedly noted, the Legislature judgment would require the government to pay is best positioned to waive immunity, and it can money for property previously taken. Gen. Servs. authorize retrospective relief if appropriate. See, City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

e.g., TEX. LOCAL GOV'T CODE § 180.006 [284 S.W.3d 378] (enacted after Williams and waiving immunity for firefighter and police officer claims for back pay Heinrich's suit because Heinrich has offered no and civil penalties). There are cases in which evidence that the reduction in her benefits was prospective relief is inadequate to make the illegal or unauthorized. We conclude, however, plaintiff whole, but the contours of the that Heinrich has presented evidence raising a appropriate remedy must be determined by the fact question on this issue. Legislature. "When a plea to the jurisdiction challenges Thus, Heinrich's claims for prospective relief the pleadings, we determine if the pleader has may be brought only against the appropriate alleged facts that affirmatively demonstrate the officials in their official capacity, and her court's jurisdiction to hear the cause. We construe statutory claims for future benefits against the the pleadings liberally in favor of the plaintiffs City, Fund, and Board must be dismissed.9 and look to the pleaders' intent." Miranda, 133 Heinrich's pleadings are unclear as to the capacity S.W.3d at 226 (citations omitted). Here, Heinrich or capacities in which she has sued the individual alleges that petitioners violated article 6243b, Board members. The United States Supreme section 10A(b) of the Texas Revised Civil Statutes Court has observed that, "[i]n many cases, the when they reduced her benefits. Thus, if complaint will not clearly specify whether officials Heinrich's allegations are true, her suit would fall are sued personally, in their official capacity, or within the ultra vires exception to governmental both." Kentucky v. Graham, 473 U.S. 159, 167 n. immunity as described above. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); see also United States ex rel. Adrian v. Regents of Univ. of This is not the end of our analysis, however: Cal., 363 F.3d 398, 403 (5th Cir. 2004). In these "if a plea to the jurisdiction challenges the cases, "`[t]he course of proceedings' in such cases existence of jurisdictional facts, we consider typically will indicate the nature of the liability relevant evidence submitted by the parties when sought to be imposed." Graham, 473 U.S. at 167 necessary to resolve the jurisdictional issues n. 14, 105 S.Ct. 3099 (citations omitted). Here, raised, as the trial court is required to do." Id. at the injunctive relief Heinrich seeks would 227. If there is no question of fact as to the necessarily come from the Board, rather than the jurisdictional issue, the trial court must rule on individual members. Considering "the nature of the plea to the jurisdiction as a matter of law. Id. the liability sought to be imposed," id., and at 228. If, however, the jurisdictional evidence construing Heinrich's pleadings liberally, creates a fact question, then the trial court cannot Miranda, 133 S.W.3d at 226, we conclude that grant the plea to the jurisdiction, and the issue she has sued the Board members in their official must be resolved by the fact finder. Id. at 227-28. capacities, and her claims are therefore not This standard mirrors our review of summary automatically barred by immunity.10 To the extent judgments, and we therefore take as true all that the court of appeals held that the suit is evidence favorable to Heinrich, indulging every against the Board members in their individual reasonable inference and resolving any doubts in capacities, we reverse that portion of its her favor. Id. at 228. judgment. Petitioners argue that, in accordance with the D governing bylaws, the payments to Heinrich were Evidence That Petitioners Acted Ultra reduced when her son ceased to be eligible to Vires receive them, and asserts that the statutory provisions Heinrich relies upon are In their second issue, petitioners argue that "inapplicable." Conversely, Heinrich alleges that governmental immunity prohibits she was awarded 100% of her husband's pension in accordance with these provisions, and that City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

petitioners' subsequent retroactive reduction of to the fund as employees of a department to her benefits violated, among others, article which the change would directly apply, voting by 6243b, section 10A(a)(1) of the Texas Revised secret ballot at an election held after ten (10) days' Civil Statutes. The relevant portions of article notice given by posting at a prominent place in 6243b, section 10A provide: every station or substation of a department to which the change would directly apply and in the (a) Notwithstanding anything to the contrary city hall; in other parts of this Act and subject to Subsections (b) and (c) of this section, the Board TEX.REV.CIV. STAT. art. 6243b, § 10A of Trustees may, by majority vote of the whole (emphasis added). Under this statute, while board, make from time to time one or more of the benefits may be increased if certain procedures following changes, or modifications: are followed, the Board has no discretion to retroactively lower pensions. Petitioners, (1) modify or change prospectively or however, cite the provisions of the 1980 bylaws, retroactively in any manner whatsoever any of the under which the reduction would be proper due to benefits provided by this Act, except that any Heinrich's son's age. They therefore suggest that retroactive change or modification shall only Heinrich erroneously relies on 1985 changes to increase pensions or benefits; the bylaws that increased the surviving spouse's share but were prospective only in nature and do *** not apply to Heinrich.

(b) None of the changes made under Heinrich submitted an affidavit from John Subsection (a) of this section may be made unless Batoon, former Assistant City Attorney for El all of the following conditions are sequentially Paso.11 Batoon's affidavit provided: complied with: I was serving as an Assistant City Attorney for (1) the change must be approved by a the City of El Paso in 1985. I reviewed and qualified actuary selected by a four-fifths vote of approved the award to Ms. Lilli M. Heinrich of the Board; the actuary's approval must be based 100% of her deceased husband's, Charles D. on an actuarial finding that the change is Heinrich, benefits from The El Paso Firemen & supported by the existing funding status of the Policemen's Pension Fund. All procedures were fund; the actuary, if an individual, must be a followed according to the Plan and according to Fellow of the Society of Actuaries or a Fellow of law. The membership voted and approved of the the Conference of Actuaries in Public Practice or a benefits awarded Ms. Heinrich as was required by Member of the American Academy of Actuaries; the Plan. Because Mr. Heinrich had been an the actuary, if an actuarial consulting firm, must outstanding police officer for the City of El Paso be established in the business of providing and because he was killed in the line of duty, the actuarial consulting services to pension plans and Board of Trustees and the membership voted to have experienced personnel able to provide the award Ms. Heinrich 100% of Mr. Heinrich's requested benefits.

[284 S.W.3d 379] Consideration of the amount of benefits awarded Ms. Heinrich was not based, in any way, services; the findings upon which the properly on the fact that she had a minor child at that time. selected and qualified actuary's approval are Ms. Heinrich was awarded 100% of the benefits based are not subject to judicial review; because Mr. Heinrich had been a well-loved officer and his death was a terrible loss for the (2) the change must be approved by a police department. It was the Board of Trustees majority of all persons then making contributions City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

and the membership's way of paying tribute to a from individual liability. See Telthorster v. fallen officer. Tennell, 92 S.W.3d 457, 459-60 (Tex.2002). Because we hold that Heinrich has not sued the Along with this sworn testimony, the Board members in their individual capacities, evidence included a pair of October 16, 1985 official immunity is inapplicable here.12 letters from the chief of police, one signed by the then-Board members, stating that "Mrs. Heinrich III will receive 100% of her husband's final pension Conclusion amount," and one unsigned, stating that 100% would go to "Mrs. Heinrich and her dependent In sum, because there is a question of fact as children." The minutes of the November 20, 1985 to whether Heinrich's pension payments have Board meeting also indicate that the membership been reduced in violation of state law, her claims had previously voted to change benefits so that for prospective declaratory and injunctive relief surviving spouses' benefits would increase from against the Board members and the mayor in 66 2/3 to 100% of the pension amount. The Board their official capacities may go forward, but we contends that these bylaw changes do not apply to dismiss her retrospective claims against them. All Heinrich, but even if they do not, Batoon's of her claims against the City, Fund, and Board, affidavit and the letters raise a fact question as to however, are barred by governmental immunity, whether Heinrich's individual benefits were and we dismiss them. Finally, we hold that the increased to 100% of her husband's pension Board members have not been sued in their payments under the provisions of article 6243b individual capacities, and to the extent the court and subsequently reduced in violation thereof. of appeals held otherwise, we reverse its We conclude that the trial court correctly denied judgment. We affirm in part and reverse in part that portion of the plea to the jurisdiction the court of appeals' judgment and remand this case to the trial court for further proceedings. [284 S.W.3d 380] TEX.R.APP. P. 60.2(a),(d).

challenging Heinrich's claims against the --------------- individuals in their official capacities. Miranda, 133 S.W.3d at 227-28. Notes:

E 1. The City withheld a percentage of Charles's The Individuals' Immunity compensation (and that of other officers) to fund the plan. In their final issue, petitioners assert that the 2. The State of Texas and the Texas State trial court erred in denying the individual board Association of Fire Fighters submitted amicus members' plea to the jurisdiction based on curiae briefs. governmental and official immunity. With the limited ultra vires exception discussed above, 3. We recently dismissed a claim for declaratory governmental immunity protects government and injunctive relief against the Houston officers sued in their official capacities to the Municipal Employees Pension System in which extent that it protects their employers. See Univ. the "plaintiffs ... requested that the trial court of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, issue an injunction directing the pension board to 776 (Tex.App.-Houston [1st Dist.] 1999, pet. comply with the trial court's interpretation of dism'd w.o.j.). Because of this exception, however, Article 6243h," the governing statute. Houston governmental immunity does not bar Heinrich's Mun. Employees Pension Sys. v. Ferrell, 248 claims against the individuals in their official S.W.3d 151, 158-59 (Tex.2007). Under Article capacities. Official immunity, by contrast, is an 6243h, the Houston board's "interpretation of affirmative defense protecting public officials [the] Act [is] final and binding on any interested City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

party," TEX.REV.CIV. STAT. art. 6243h § 2(y), immunity."); Tex. Educ. Agency v. Leeper, 893 and we held that this language precluded judicial S.W.2d 432, 446 (Tex. 1994) ("The DJA expressly review. Ferrell, 248 S.W.3d at 158 ("There is no provides that persons may challenge ordinances right to judicial review of an administrative order or statutes, and that governmental entities must unless a statute explicitly provides that right or be joined or notified. Governmental entities the order violates a constitutional right.") joined as parties may be bound by a court's (citations omitted). Here, however, Article 6243b declaration on their ordinances or statutes. The contains no language similar to that in 6243h Act thus contemplates that governmental entities granting the Board exclusive authority to may be—indeed, must be—joined in suits to interpret the act, see TEX.REV.CIV. STAT. art. construe their legislative pronouncements."). 6243b, and, in any case, Heinrich does not Here, Heinrich is not challenging the validity of challenge petitioners' interpretation of 6243b, but the bylaws or the governing statute, but rather rather alleges that they have violated that statute petitioners' actions under them. under an undisputed reading thereof. See Ferrell, 248 S.W.3d at 160 (Brister, J., concurring) ("A 7. State officials may, of course, be sued in both different case might be presented if the plaintiffs their official and individual capacities. Judgments alleged the board was clearly violating some against state officials in their individual capacities provision of the statute. Article 6243h gives the will not bind the state. See Alden v. Maine, 527 pension board complete discretion to interpret U.S. 706, 757, 119 S.Ct. 2240, 144 L.Ed.2d 636 the statute, but not to violate it."). (1999) ("Even a suit for money damages may be prosecuted against a state officer in his individual 4. The Dodgen Court expressly declined to limit capacity for unconstitutional or wrongful conduct Epperson based on changes in federal immunity fairly attributable to the officer himself, so long as jurisprudence. Dodgen, 308 S.W.2d at 843. the relief is sought not from the state treasury but from the officer personally."). 5. Because the policy embodied in the law extends only as far the amount wrongfully withheld, 8. Further, although the parties do not address it, claims for amounts beyond those alleged to be we note that the reduction in Heinrich's survivor due under the relevant law, such as consequential payments occurred before the effective date of damages, remain barred by immunity. article XVI, section 66 of the Texas Constitution ("Protected Benefits Under Certain Public 6. For claims challenging the validity of Retirement Systems"), and we do not consider ordinances or statutes, however, the Declaratory whether it would otherwise apply in this case. Judgment Act requires that the relevant governmental entities be made parties, and 9. While this case was pending on interlocutory thereby waives immunity. TEX. CIV. PRAC. & appeal, the Legislature enacted 271.151.160 of the REM. CODE § 37.006(b) ("In any proceeding that Local Government Code, waiving immunity from involves the validity of a municipal ordinance or suit for certain claims against cities and other franchise, the municipality must be made a party governmental entities. Heinrich does not argue and is entitled to be heard, and if the statute, that her claims fall within these provisions, and ordinance, or franchise is alleged to be we express no opinion on that subject. unconstitutional, the attorney general of the state must also be served with a copy of the proceeding 10. Because the mayor of El Paso, who is also a and is entitled to be heard."); see Wichita Falls Board member, was named as a defendant in his State Hosp. v. Taylor, 106 S.W.3d 692, 697-698 official capacity, Heinrich may seek liability from (Tex.2003) ("[I]f the Legislature requires that the the City through that officer, although her claims State be joined in a lawsuit for which immunity against the City itself must be dismissed. would otherwise attach, the Legislature has 11. The Fund, the Board, and the Board members intentionally waived the State's sovereign objected to this evidence. The trial court did not City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

explicitly rule on the objections, and the petitioners do not raise any evidentiary issues on appeal.

12. The court of appeals failed to draw this distinction, instead discussing the protections available to officials from governmental immunity. 198 S.W.3d at 407. This conflict gives us jurisdiction over this interlocutory appeal. TEX. GOV'T CODE § 22.225(c), (e).

--------------- Haddix v. American Zurich Ins. Co., 253 S.W.3d 339 (Tex. App. 2008)

253 S.W.3d 339 [253 S.W.3d 345] Robert HADDIX Jr., Appellant v. The Division conducted a contested case hearing AMERICAN ZURICH INSURANCE on Haddix's November 25 claim but had not COMPANY; Chesterfield Services, Inc.; issued a decision when Haddix filed suit. In The Salvation Army; and Flahive, Ogden response to Haddix's suit, the appellees filed pleas and Latson, P.C., Appellees. to the jurisdiction arguing that Haddix had failed No. 11-06-00107-CV. to exhaust his administrative remedies. The trial Court of Appeals of Texas, Eastland. court conducted a hearing and subsequently April 3, 2008. granted the pleas and dismissed the litigation.

[253 S.W.3d 344] II. Analysis

Robert Haddix Jr., Lufkin, TX, pro se. A. Was Haddix Improperly Denied a Default Judgment? Robert D. Stokes, Flahive, Ogden & Latson, Austin, Warren T. McCollum, Fenley & Bate, Haddix argues that the trial court erred by L.L.P., Lufkin, TX, for appellee. failing to impose a default judgment on the defendants. Haddix filed his lawsuit on August Panel consists of: WRIGHT, C.J., McCALL, 29, 2005. Citations were issued and were mailed J., and STRANGE, J. by certified mail on September 1. Haddix filed a motion for default judgment on September 20, OPINION 2005. Haddix assumes that the appellees' deadline for filing an answer began running when RICK STRANGE, Justice. the citations were mailed. This is incorrect. Appellees were not served until they received the Robert Haddix Jr. filed suit against American citation. See Milam v. Miller, 891 S.W.2d 1 (Tex. Zurich Insurance Company; Chesterfield Services, App.-Amarillo 1994, writ ref'd) (defendant was Inc.; the Salvation Army; and Flahive, Ogden and served by certified mail when he received Latson, P.C. (Flahive), for injuries he claimed in plaintiff's petition and signed the certified mail connection with two on-the-job injuries and his receipt). subsequent claims for workers' compensation benefits. The trial court granted appellees' pleas The officer's returns reveal that Zurich was to the jurisdiction and dismissed Haddix's suit. served on September 23, Chesterfield and Flahive We affirm in part and reverse and remand in part. were served on September 26, and the Salvation Army was served on September 28. The Salvation I. Background Facts Army's answer was due on October 24. The remaining answers were due October 17. Each Haddix contended that, while in the course party filed an answer on October 7. Because and scope of his employment with the Salvation appellees were not in default, the trial court did Army, he was injured on November 25, 2004, and not err, and Haddix's second issue is overruled.2 that he aggravated his injury on December 16, 2004. Haddix filed workers' compensation claims B. Did the Trial Court Err by not Making for both injuries. The Texas Department of Findings of Fact and Conclusions of Law? Insurance, Division of Workers' Compensation1 held a contested case hearing on Haddix's Haddix contends that the trial court December 16 claim and determined that he did committed misconduct by refusing to file findings not suffer a compensable injury. The appeals of fact and conclusions of law after it granted panel affirmed. appellees' pleas to the jurisdiction. A party is Haddix v. American Zurich Ins. Co., 253 S.W.3d 339 (Tex. App. 2008)

entitled to findings of fact and conclusions of law court. However, both sides referred to a letter after a conventional trial on the merits before the from the Texas Workforce Commission (TWC) to court. IKB Indus. v. Pro-Line Corp., 938 S.W.2d Haddix that was included in his appendix of 440, 442 (Tex.1997). A case is "tried" when a evidence. The parties reach different conclusions court holds an evidentiary hearing. Gen. Elec. regarding the evidence, but the evidence itself is Capital Corp. v. ICO, Inc., 230 S.W.3d 702, 711 undisputed. The trial court, therefore, was not (Tex.App.-Houston [14th Dist.] 2007, pet. required to prepare findings of fact. We will denied). In other cases, unless they serve no assume that the trial court accepted the evidence purpose such as when summary judgment is that Haddix included in his appendix as true and granted, findings of fact and conclusions of law will afford the factual statements in Haddix's are proper; however, a party cannot compel their petition the deference required by law. See Cont'l preparation. Pro-Line Corp., 938 S.W.2d at 442- Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 43.3 449 (Tex.1996) (absent an allegation of fraudulent pleadings, the trial court must take the Courts have held that findings of fact are not plaintiff's allegations as true and must construe required every time a plea to the jurisdiction is them liberally in the plaintiff's favor when ruling granted. In Ford v. City of Lubbock, 76 S.W.3d on a plea to the jurisdiction). 795 (Tex.App.-Amarillo 2002, no pet.), the claimants sued the City of Lubbock for the Haddix also argues that he was harmed by drowning death of their child. The City filed a plea the trial court's failure to prepare conclusions of to the jurisdiction, and the trial court held law because appellees' pleas consisted of numerous subsections and because he does not [253 S.W.3d 346] know the basis of the trial court's ruling. The trial court's rulings on questions of law are reviewed a hearing. No witnesses testified, but the parties de novo. State v. Heal, 917 S.W.2d 6, 9 attached affidavits and deposition testimony to (Tex.1996). This requires that we exercise our their pleadings. The trial court granted the City's own judgment and redetermine each issue. Quick plea. While the family requested findings of fact v. City of Austin, 7 S.W.3d 109, 116 (Tex.1998). and conclusions of law, none were prepared. The Moreover, Haddix is required to attack all Amarillo Court was required to determine if independent bases or grounds that fully support a findings were appropriate because of a claim by complained-of ruling or judgment. Britton v. Tex. the City that the family had not timely perfected Dep't of Criminal Justice, 95 S.W.3d 676, 681 its appeal. The Amarillo Court reviewed the trial (Tex.App.-Houston [1st Dist.] 2002, no pet.). court's comments at the hearing and concluded Consequently, the preparation of conclusions of that it had accepted the family's statements as law would not have altered Haddix's appeal or our true. Consequently, there was no disputed fact analysis. Haddix's third issue is overruled. issue for resolution, and findings of fact would have served no useful purpose. 76 S.W.3d at 797- C. Did the Trial Court Err by not Providing 98. Haddix an Opportunity to Amend His Petition?

We believe that the same situation holds true Haddix next argues that the trial court erred here. Each appellee asserted a plea to the because it signed an order of dismissal rather jurisdiction. The pleas were initially unsupported than provide him with an opportunity to amend by evidence, but Flahive subsequently filed a brief his petition. Texas Courts have signaled a that included an affidavit from one of its preference for allowing a plaintiff an opportunity attorneys. Haddix filed responses to the pleas and to amend before dismissing a suit in response to a an appendix of evidence. When the trial court plea to the jurisdiction. The general rule is that, if held a hearing on the pleas, no witnesses testified the plaintiff's pleadings do not demonstrate and no evidence was formally received by the trial incurable defects, the plaintiff should be given an Haddix v. American Zurich Ins. Co., 253 S.W.3d 339 (Tex. App. 2008)

opportunity to amend. See Sepulveda v. County that it was granting defendants' pleas and of El Paso, 170 S.W.3d 605, 616-17 (Tex.App.-El requested a proposed order. The trial court signed Paso 2005, pet. denied). If, however, the an order on December 22. Haddix objected to this pleadings affirmatively negate the existence of order contending that the trial court erred by not jurisdiction, dismissal is appropriate. See Harris giving him a chance to amend but he did not County v. Sykes, 136 S.W.3d 635, 639 amend or request leave to amend his pleadings. (Tex.2004). Haddix filed a motion for new trial and again objected to the failure to grant him an [253 S.W.3d 347] opportunity to amend, but he did not request leave to amend or indicate how he could address While the general rule expresses a preference his pleading deficiencies with an amended for allowing an amendment, a plaintiff can waive pleading. this opportunity through inaction. See, e.g., Kassen v. Hatley, 887 S.W.2d 4, 13-14 n. 10 Even if we assume that the better practice (Tex.1994) (plaintiffs waived complaint to would have been served by specifically providing dismissal by summary judgment aimed solely at Haddix with an opportunity to amend his their pleadings when they did not request an pleadings, he had the opportunity in response to opportunity to amend their petition); see also defendants' pleas to amend but did not do so, and Dahl ex rel. Dahl v. State, 92 S.W.3d 856, 862 n. he had over one month following the hearing to 6 (Tex.App.-Houston [14th Dist.] 2002, no pet.) amend but did not do so; however, he has never (noting that plaintiffs arguably waived complaint advised either the trial court or this court what he that the trial court failed to provide them with an could plead that would address any of the opportunity to amend their pleadings when they jurisdictional challenges. Accordingly, we cannot did not seek leave to amend). say that the trial court erred, and Haddix's fourth issue is overruled. Haddix made no effort to amend his petition prior to the hearing. The only prehearing D. Did the Trial Court Err by Citing the reference to an amended pleading was in Wrong Section of the Labor Code? Haddix's response to the Salvation Army's plea. The Salvation Army contended that Haddix had The Salvation Army, Zurich, and Chesterfield not exhausted his administrative remedies for each pleaded that Haddix's common-law bringing a Payday Law cause of action by not remedies were barred by the exclusive remedy of filing a claim with the Department of Labor.4 the Texas Workers' Compensation Act pursuant Haddix disputed this and then stated: "Plaintiff is to "Texas Labor Code Section 406.234." Haddix glad that Defendant brought this point up. In his complains that the trial court erred by granting Original Petition, Plaintiff did not request this challenge because Section 406.234 does not damages for this cause of action. Plaintiff now exist. The appellees cited the wrong section of the requests leave from the Court to file a supplement Labor Code, but they are correct that the recovery to his petition to address this point and other of workers' compensation benefits is the exclusive unintentional glitches in his Original Petition." remedy of an employee covered by workers' Despite this statement, Haddix did not file an compensation insurance for work-related injuries. amended or supplemental pleading prior to the See TEX. LAB.CODE ANN. § 408.001(a) (Vernon hearing. 2006). Haddix's fifth issue is overruled.

Haddix made no effort to amend his petition [253 S.W.3d 348] during or after the hearing. The hearing occurred on November 8. The trial court took the pleas E. Did the Trial Court Err with its under advisement. The trial court notified the Evidentiary Rulings? parties by correspondence dated December 15 Haddix v. American Zurich Ins. Co., 253 S.W.3d 339 (Tex. App. 2008)

Haddix argues that the trial court erred by Beckner, 74 S.W.3d 98, 103 (Tex.App.-Waco refusing to admit, consider, or allow relevant 2002, no pet.) (rejecting argument that plaintiff testimony and evidence. He does not, however, who filed suit seeking judicial review in a workers' identify what evidence he believes was not compensation case was jurisdictionally required admitted or considered. In his brief, he repeatedly to plead that his suit was an appeal of the appeals refers to statements made by him while panel decision). presenting argument to the trial court and to cases he furnished the trial court. Neither 1. The Exhaustion of Administrative constitutes evidence. We have previously held Remedies Requirement. that we will assume that the trial court accepted all evidence tendered by Haddix as true and that The exhaustion of administrative remedies we will consider that evidence in our review. requirement represents the legislature's desire Haddix's seventh, eighth, and twelfth issues, that administrative agencies initially determine therefore, present nothing for our determination disputed questions of fact and law in certain and are overruled. situations. Essenburg v. Dallas County, 988 S.W.2d 188, 189 (Tex.1998). When an agency has F. Did the Trial Court Err by Granting the exclusive jurisdiction, courts have no subject- Pleas to the Jurisdiction? matter jurisdiction until the claimant has exhausted all administrative remedies within the In several issues, Haddix challenges the agency. See In re Entergy Corp., 142 S.W.3d 316, propriety of the trial court's decision to grant the 321-22 (Tex.2004). appellees' pleas to the jurisdiction. We will treat these collectively. A plea to the jurisdiction A plaintiff is required to allege facts contests a trial court's subject-matter jurisdiction. affirmatively demonstrating the trial Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). The purpose of the plea "is not to [253 S.W.3d 349] force the plaintiffs to preview their case on the merits but to establish a reason why the merits of court's jurisdiction. Am. Motorists Ins. Co. v. the plaintiffs' claims should never be reached." Fodge, 63 S.W.3d 801, 803 (Tex. 2001). Courts, Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, however, are not limited to the consideration of 554 (Tex.2000). Whether a court has subject- those facts but may also consider evidence to matter jurisdiction is a matter of law. Tex. Dep't prove the jurisdictional issues raised. Bland of Parks & Wildlife v. Miranda, 133 S.W.3d 217, I.S.D., 34 S.W.3d at 555. Consequently, if a party 226 (Tex.2004). Accordingly, we review a has not exhausted its administrative remedies but challenge to the trial court's subject-matter has pleaded that it has, the trial court would not jurisdiction de novo. Id. at 228. be bound by this allegation but could still dismiss a claim for lack of jurisdiction. The opposite is Haddix asserted several causes of action true as well. If a party exhausts its administrative against the appellees.5 Their contention is that in remedies but fails to properly or adequately plead each instance Haddix failed to plead that he had this, the challenge is not to the trial court's exhausted his administrative remedies and, jurisdiction but to the adequacy of the plaintiff's therefore, that the trial court had no jurisdiction. pleading. We believe the appellees' position is not quite a correct statement of the law because, considering Haddix initiated two claims with the a plea to the jurisdiction based on the alleged Division. Haddix pleaded that he was injured failure to exhaust administrative remedies, it is while in the course of his employment for the ultimately the plaintiff's actions rather than his Salvation Army on November 25, 2004, and that pleadings that determine whether the trial court he aggravated his injury on December 16. He has jurisdiction. Cf. Tex. Dep't of Transp. v. alleged that a contested case hearing was Haddix v. American Zurich Ins. Co., 253 S.W.3d 339 (Tex. App. 2008)

conducted concerning the December 16 injury purposes, and we have found none ourselves. and that, at this hearing, the hearing officer Thus, the trial court had jurisdiction to consider considered whether Haddix was injured on an appeal of the appeals panel decision. Haddix December 16 and, if so, whether and for what had not, however, exhausted his administrative period was he disabled. Haddix alleged that the remedies for the November 25 injury, and the hearing officer determined that he had no trial court did not have jurisdiction to consider disability and that the appeals panel affirmed. any claim for benefits in connection with that Flahive's evidence corroborated these factual injury. statements. Haddix's petition does not state a claim that Haddix's petition does not refer to any indisputably constitutes an appeal of the appeals administrative proceeding concerning the panel decision. Several arguably touch upon that November 25 injury, but Flahive's evidence claim, and some are clearly meant to assert an indicates that Haddix filed a separate claim for independent cause of action. Whether Haddix is this injury, that the Division assigned it a claim properly number, and that a benefit review conference and contested case hearing were set. The disputed [253 S.W.3d 350] issues at the second contested case hearing involved whether the Salvation Army was appealing the appeals panel or whether his causes Haddix's employer on November 25, whether of action are barred by the Workers' Haddix was injured on that date, whether Haddix Compensation Act's exclusivity provision, we timely notified his employer of his injury, whether need not decide today because our review does the carrier had waived the right to contest the not concern the merits of Haddix's claims but compensability, and whether Haddix was disabled merely the trial court's jurisdiction. See Bland as the result of any November 25 injury. The ISD, 34 S.W.3d at 554 (a plea to the jurisdiction is hearing officer had not yet released his findings a dilatory plea intended to defeat a cause of action on these disputed issues when Haddix filed suit. without regard to the merits of the claim).

It is clear that the recovery of workers' To the extent that Haddix is attempting to compensation benefits is the exclusive remedy of appeal the appeals panel's decision, the trial an employee covered by workers' compensation court's jurisdiction is limited to the December 16 insurance for work-related injuries. See Section claim. The trial court has jurisdiction over 408.001(a). It is also clear that an individual Haddix's causes of action for fraud, conspiracy, claiming an injury while in the course and scope libel, intentional infliction of emotional distress, of his employment must exhaust his failure to properly investigate, and breach of the administrative remedies before filing suit and that covenant of good faith and fair dealing to the this suit is an appeal of the appeals panel. See extent that Haddix is claiming an independent TEX. LAB.CODE ANN. § 410.251 (Vernon 2006). injury and to the extent those causes of action do not require proof of a compensable injury on Even though it is undisputed that Haddix November 25. Our holding is limited to the presented a claim for his December 16 injury to determination that the trial court has jurisdiction the Division and that he contested that claim and is not a holding that any cause of action is or through the Division's appeals panel, the is not a viable claim. appellees contend that he has not exhausted his administrative remedies because the November 2. Retaliation for Filing a Claim. 25 and December 16 injuries are inexorably intertwined. Appellees cite no authority in Texas law prohibits discrimination by support of the argument that separate claims employers against employees for filing a workers' must be treated collectively for jurisdictional compensation claim in good faith. TEX. Haddix v. American Zurich Ins. Co., 253 S.W.3d 339 (Tex. App. 2008)

LAB.CODE ANN. § 451.001 (Vernon 2006). The v. Navarrete, 194 S.W.3d 677, 682 (Tex.App.-El statute does not require that retaliation claims be Paso 2006, pet. denied). submitted to the Division before filing suit. When courts have discussed an obligation to exhaust Haddix's appendix included a copy of a letter administrative remedies before filing a retaliation he received from the TCHR. This letter claim, they have dealt with employer-provided acknowledged receipt of an inquiry from Haddix grievance procedures. See, e.g., Dallas County v. regarding possible discrimination but indicated Gonzales, 183 S.W.3d 94 (Tex.App.-Dallas 2006, that the TCHR could pet. denied). There is no contention that the Salvation Army had a grievance procedure. The [253 S.W.3d 351] trial court, therefore, had jurisdiction over Haddix's retaliation claim. not draft a charge on his behalf because "[t]he information you have provided is not sufficient to 3. Retaliation by Landlord. file a claim of employment discrimination under the Texas Commission on Human Rights Act, as Haddix pleaded that the Salvation Army was amended." Haddix argues that this letter proves his landlord and that it retaliated against him for that he has exhausted his administrative exercising his lawful rights by unlawfully evicting remedies, and he spends considerable time him. TEX. PROP.CODE ANN. § 92.331 (Vernon discussing evidence that is not part of our record 2007) prohibits retaliation by a landlord against a and discussing whether a right to sue letter is a tenant for exercising, in good faith, a right predicate to filing a discrimination claim. Haddix, granted to the tenant by state law. The statute however, misunderstands the letter he received does not provide an administrative remedy for and included in the record because it in fact alleged violations. The trial court, therefore, had proves that he did not exhaust his administrative jurisdiction over this claim. Haddix also asserts a remedies. claim for unlawful eviction and cites TEX. PROP.CODE ANN. § 24.005 (Vernon 2000) in Individuals are required to first file a support of this cause of action. Section 24.005 complaint with the TCHR so that it can does not create a cause of action but requires investigate the allegations, informally eliminate certain notice before filing a forcible detainer suit. any discrimination, and minimize costly We are not required to determine the merits of litigation. Id. at 683. Any subsequent lawsuit is this claim but merely the trial court's jurisdiction. limited to claims made in the complaint and Because the statute does not create an factually related claims that could reasonably be administrative remedy, the trial court has expected to grow out of the TCHR's investigation jurisdiction over this claim. of the charge. Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 738 (Tex.App.- 4. Discrimination. Houston [14th Dist.] 1999, no pet.). That purpose is not served if an individual fails to provide Haddix also asserted that he was sufficient information to the TCHR to support a discriminated against on the basis of his religion, claim of discrimination. Haddix failed to exhaust disability, race, and sex. The Texas Commission his administrative remedies with the TCHR, and on Human Rights (TCHR) was created by the the trial court did not have jurisdiction to legislature to correlate state law with federal law consider his discrimination claims. in the area of employment discrimination. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 5. Failure to Pay Wages. 483, 485 (Tex.1991). Before filing an employment discrimination claim, one must comply with the Haddix's final claim alleges that the Salvation statutory mandates of the TCHR. El Paso County Army illegally failed to pay his wages. An employee seeking unpaid wages from an Haddix v. American Zurich Ins. Co., 253 S.W.3d 339 (Tex. App. 2008)

employer may pursue a judicial action against the [253 S.W.3d 352] employer or may seek an administrative remedy as provided under the Payday Law. Holmans v. by the record and on challenges not properly Transource Polymers, Inc., 914 S.W.2d 189, 192 preserved, and he repeatedly displays a (Tex.App.-Fort Worth 1995, writ denied). fundamental misunderstanding of the legal Haddix's evidence indicates that he filed a claim process. with the Texas Workforce Commission and that he was awarded $528 in unpaid wages. Appellees Our review of the entire record makes clear argue that Haddix was required to prosecute an that his due process rights were not abridged. appeal of this award to the TWC appeals panel Haddix was provided the opportunity to respond before filing suit. They contend that, because to the pleas to the jurisdiction with both pleadings Haddix did not affirmatively plead that he had and evidence and to present argument to the trial prosecuted an administrative appeal, the trial court. When Haddix filed a motion for new trial, court lacked jurisdiction. This, however, is a the trial court allowed Haddix to argue this pleading rather than a jurisdictional defect. Cf. motion for new trial for over one hour and fifteen Hull v. Davis, 211 S.W.3d 461, 465 (Tex.App.- minutes. During that hearing, Haddix accused Houston [14th Dist.] 2006, no pet.) (trial court opposing counsel of lying and fraudulent conduct, lacked jurisdiction over Payday Law claim called the trial court negligent, sarcastically because record affirmatively established that referred to the trial court's rulings, ridiculed the plaintiff failed to administratively appeal the trial court, and accused the trial court of having a hearing examiner's decision). Because Haddix well-known bias and prejudice against presented evidence that an administrative claim unrepresented plaintiffs. During all of this, the was filed and the record is silent on whether an trial court showed considerable restraint and appeal was prosecuted, the trial court had patience. jurisdiction over this cause of action. Our holding does not foreclose further consideration of this Haddix contends that the clerk's record is issue in response to additional evidence. missing correspondence and rulings, the reporter's record is incomplete, and the Haddix's sixth, ninth, tenth, eleventh, audiotapes from the trial court's hearings have thirteenth, fourteenth, fifteenth, sixteenth, been altered. Earlier, this court abated the appeal seventeenth, eighteenth, nineteenth, and twenty- in response to Haddix's motion to supplement the first issues are sustained in part and overruled in reporter's record, directed the trial court to part. This case is remanded for further conduct an evidentiary hearing, and asked the consideration of those claims over which we have court to provide us with findings of fact and held that the trial court had jurisdiction. conclusions of law in connection with that hearing. This hearing was conducted by a G. Were Haddix's Due Process Rights different judge than the one that granted the pleas Violated? to the jurisdiction. The judge also listened to the audiotape of the plea to the jurisdiction hearing. Haddix contends that the trial court engaged The judge found that, except for a typographical in misconduct that deprived him of his due error, the reporter's record was accurate and that process protections by operating what he many of the things Haddix alleges occurred describes as a "kangaroo court." In support of this during the jurisdiction hearing simply did not. argument, Haddix has provided this court with an Haddix has not challenged any of these findings extended, and at times personal, critique of the with an issue as required by TEX.R.APP. P. trial court, the district clerk, the court reporter, 38.1(e). Those findings are, therefore, binding on and opposing counsel. Haddix extensively relies him. upon matters not supported Haddix v. American Zurich Ins. Co., 253 S.W.3d 339 (Tex. App. 2008)

Haddix has not established that his due themselves improperly; and this opinion should process rights were violated. His first issue is not be used to suggest otherwise. overruled. If Haddix elects to file any further pleadings H. Sanctions. with this court, those pleadings should be restricted to the record, should be devoid of any Haddix's twentieth issue complains of the personal attacks, and should be professional in trial court's refusal to grant any of his many tone. The failure to do so will be treated requests for sanctions. Haddix has also asked this accordingly. court to impose sanctions on opposing counsel. Haddix repeated that request during oral III. Holding argument. Haddix has wholly failed to establish that opposing counsel engaged in improper The judgment of the trial court is affirmed in conduct either before the trial court or this court. part and reversed and remanded in part. The case Haddix's request for sanctions is denied, and his is remanded to the trial court for further twentieth issue is overruled. consideration of those matters over which we have held the trial court has jurisdiction. Appellees have not requested sanctions from Haddix, but we feel it necessary to caution him --------------- about his own conduct. His brief contains many personal attacks against the trial court-including Notes: allegations of criminal misconduct that lack any 1. Prior to September 1, 2005, this agency was credible evidentiary support. His brief contains known as the Texas Workers' Compensation repeated references to material that he Commission. For clarity, we will refer to it as the acknowledges is not part of our record. His Division throughout this opinion. conspiratorial allegations strain reason and credibility. We have exercised considerable 2. We note also that a default judgment would restraint and have largely ignored Haddix's have been inappropriate until the return of improper behavior in an effort to timely resolve citation had been on file for ten days. TEX.R. CIV. this appeal. P. 107. The returns for each defendant were filed on October 21-well after each defendant filed its Appellant would be well advised to desist answer. from such behavior in the future. Even though he is proceeding pro se, Haddix is subject to the 3. In addition to summary judgments, the court same standards as licensed attorneys. Holt v. F.F. also listed judgment after directed verdict, Enters., 990 S.W.2d 756, 759 (Tex.App.-Amarillo judgment non obstante veredicto, default 1998, pet. denied). Similar conduct by counsel has judgment awarding liquidated damages, dismissal resulted in disciplinary action by this court. See for want of prosecution without an evidentiary Burleson v. Sharp Image Energy, Inc., No. 11-06- hearing, dismissal for want of jurisdiction without 00069-CV, 2007 WL 3298973 (Tex.App.- an evidentiary hearing, dismissal based on the Eastland November 8, 2007, pet. filed) pleadings or special exceptions, and any judgment (mem.op.). We have granted Haddix some relief rendered without an evidentiary hearing as by partially examples of instances in which findings and conclusions can have no purpose and should not [253 S.W.3d 353] be requested. Id. at 443.

remanding this case for further proceedings. In so 4. TEX. LAB.CODE ANN. §§ 61.001-.095 (Vernon doing, we are not holding that either the trial 2006). court or opposing counsel have conducted Haddix v. American Zurich Ins. Co., 253 S.W.3d 339 (Tex. App. 2008)

5. Haddix pleaded workers' compensation fraud, conspiracy, libel, intentional infliction of severe emotional distress, malicious and/or intentional and deliberately negligent failure to properly and fully investigate, breach of good faith and fair dealing, discrimination by retaliation, retaliation by landlord, unlawful eviction, tax fraud, discrimination based on religion, disability discrimination, racial discrimination, sexual discrimination, and failure to pay wages.

--------------- Harris County v. Sykes, 136 S.W.3d 635 (Tex. 2004)

136 S.W.3d 635 could have been asserted, come within the Texas HARRIS COUNTY, Texas and Carl Tort Claims Act's waiver of sovereign immunity. Borchers, Petitioners, We further hold that such a dismissal is a v. judgment under section 101.106 of the Texas Tort Faye SYKES, Individually and a/n/f of Claims Act. Accordingly, we modify the judgment Trenard Battle, Respondents. of the court of appeals to render judgment No. 02-1014. dismissing the plaintiff's claims with prejudice Supreme Court of Texas. and render judgment that the plaintiff take Argued November 12, 2003. nothing. Decided May 28, 2004. I [136 S.W.3d 636] George Sykes and his wife, Faye, brought this Kevin D. Jewell, Chamberlain Hrdlicka White suit for injuries Mr. Sykes allegedly sustained in Williams & Martin, Casey Todd Wallace and the Harris County jail. While incarcerated there, Michael A Stafford, Harris County Atty., Michael Mr. Sykes was assigned to a bed next to an inmate R. Hull, Harris County Attorney's Office, who was infected with tuberculosis. The Sykeses Houston, for Petitioner. claimed that the county was negligent in failing to quarantine the infected inmate and in failing to Okon J. Usoro, Okon J. Usoro, P.C., Houston, warn Mr. Sykes of the inmate's infection. Several for Respondent. months after filing suit, Faye Sykes filed a suggestion informing the trial court of her Chief Justice PHILLIPS delivered the opinion husband's death. At the same time, she filed a of the Court, in which Justice HECHT, Justice motion, on which the trial court apparently never OWEN, Justice JEFFERSON, Justice SMITH, and ruled, requesting that Trenard Battle, Mr. Sykes's Justice WAINWRIGHT joined. minor son, be added as a plaintiff and that the estate of George Sykes be substituted in the place This case raises two issues. First, we address of her late husband. whether an order granting a governmental Asserting governmental immunity from suit, [136 S.W.3d 637] Harris County filed a plea to the jurisdiction arguing that the Legislature has not waived unit's plea to the jurisdiction should be with or immunity from suits like the Sykes's. Sykes without prejudice when the claimant has failed to responded that immunity was waived by the state a claim that is cognizable under the Texas Texas Tort Claims Act because her husband's Tort Claims Act. Regardless of the answer, we injuries arose out of the condition or use of must then decide whether such a dismissal is a property. Tex. Civ. Prac. & Rem.Code § 101.021. judgment for the purposes of section 101.106 of Specifically, Sykes argued that the words the Texas Tort Claims Act, that would bar a "housed," "room," and "sleeping space" in their plaintiff from proceeding against governmental pleadings all connote use of the tangible personal agents for claims arising from the same subject or real property that caused Mr. Sykes's injury matter. See Tex. Civ. Prac. & Rem.Code § 101.106. and eventual death. The court of appeals held that a dismissal pursuant to a plea to the jurisdiction is a dismissal By amended petition, Sykes added Carl without prejudice, and as such, not a judgment Borchers, the major of the Harris County jail, as a under the Texas Tort Claims Act. 89 S.W.3d 661, defendant both individually and in his official 670. We hold that such a dismissal is with capacity. The trial court subsequently granted prejudice because it fully and finally adjudicates Harris County's plea to the jurisdiction and whether the claims that were asserted, or that dismissed Sykes's claims against Harris County Harris County v. Sykes, 136 S.W.3d 635 (Tex. 2004)

with prejudice. Borchers then moved for (Tex.2003) (recognizing that sovereign immunity summary judgment, urging that the trial court's and governmental immunity are distinct concepts dismissal of Harris County entitled him to although courts often use the terms derivative immunity under section 101.106 of the interchangeably). The Texas Tort Claims Act Texas Tort Claims Act. See id. § 101.106; Thomas provides a limited waiver of governmental v. Oldham, 895 S.W.2d 352, 357 (Tex.1995). The immunity if certain conditions are met. See Tex. trial court granted Borchers's motion and signed Civ. Prac. & Rem.Code §§ 101.021, 101.025.1 an order that Sykes take nothing. A plea to the jurisdiction is a dilatory plea Sykes appealed, arguing that the trial court that seeks dismissal of a case for lack of subject erred in granting the plea to the jurisdiction and matter jurisdiction. Bland Indep. Sch. Dist. v. dismissing her claims against Harris County Blue, 34 S.W.3d 547, 554 (Tex.2000). Because because the Texas Tort Claims Act waives governmental immunity from suit defeats a trial immunity when a condition or use of tangible court's jurisdiction, it may be raised by such a personal property causes injury. See Tex. Civ. plea. Tex. Dep't of Parks & Wildlife v. Miranda, Prac. & Rem.Code § 101.021. Sykes also argued 133 S.W.3d 217, 225-26 (Tex.2004); Jones, 8 that the trial court further erred in granting S.W.3d at 639. Whether a court has subject Borchers's motion for summary judgment matter jurisdiction is a legal question. State ex rel. State Dep't of Highways & Pub. Transp. v. [136 S.W.3d 638] Gonzalez, 82 S.W.3d 322, 327 (Tex.2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, because Harris County's dismissal was not a 928 (Tex.1998). If the trial court denies the judgment for purposes of section 101.106. See id. governmental entity's claim of no jurisdiction, § 101.106. The court of appeals affirmed the trial whether it has been asserted by a plea to the court's dismissal of Harris County, holding that jurisdiction, a motion for summary judgment, or Sykes's amended petition did not affirmatively otherwise, the Legislature has provided that an plead facts sufficient to confer jurisdiction on the interlocutory appeal may be brought. See Tex. trial court. 89 S.W.3d at 667. But the court Civ. Prac. & Rem.Code § 51.014; San Antonio decided that, in granting the plea to the State Hosp. v. Cowan, 128 S.W.3d 244, 245 n. 3 jurisdiction, the trial court could only dismiss the (Tex.2004). However, if the court grants the plea suit without prejudice, which did not qualify as a to the jurisdiction, as the trial court did in this judgment under section 101.106 of the Texas Tort case, the plaintiff may take an appeal once that Claims Act. 89 S.W.3d at 668. Accordingly, the judgment becomes final. See Cash Am. Int'l Inc. court of appeals reversed Carl Borchers's v. Bennett, 35 S.W.3d 12, 15 (Tex.2000). summary judgment and remanded the case to the trial court. We granted Carl Borchers and Harris [136 S.W.3d 639] County's petition for review. A trial court must grant a plea to the II jurisdiction, after providing an appropriate opportunity to amend, when the pleadings do not Sovereign immunity from suit defeats a trial state a cause of action upon which the trial court court's subject matter jurisdiction unless the state has jurisdiction. See Bybee v. Fireman's Fund Ins. expressly consents to suit. Tex. Dep't of Transp. v. Co., 160 Tex. 429, 331 S.W.2d 910, 917 (1960) Jones, 8 S.W.3d 636, 638 (Tex.1999). (citing Lone Star Fin. Corp. v. Davis, 77 S.W.2d Governmental immunity operates like sovereign 711, 715 (Tex.App.-Eastland 1934, no writ)). This immunity to afford similar protection to was such a case. After Harris County filed its plea subdivisions of the State, including counties, to the jurisdiction, Sykes amended her petition to cities, and school districts. See Wichita Falls State state with greater particularity the theory that Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 Harris County waived governmental immunity by Harris County v. Sykes, 136 S.W.3d 635 (Tex. 2004)

placing Mr. Sykes in the same room with, and If a plaintiff has been provided a reasonable assigning him a bed near, an inmate infected with opportunity to amend after a governmental entity tuberculosis. The trial court dismissed Sykes's files its plea to the jurisdiction, and the plaintiff's claims, and the court of appeals agreed that "any amended pleading still does not allege facts that effect that the room's walls and Sykes's bed had would constitute a waiver of immunity, then the on Sykes's alleged exposure to tuberculosis is too trial court should dismiss the plaintiff's action. attenuated to constitute a waiver of immunity Such a dismissal is with prejudice because a under the [Texas Tort Claims Act]." 89 S.W.3d at plaintiff should not be permitted to relitigate 667 (citing Dallas County Mental Health & jurisdiction once that issue has been finally Mental Retardation v. Bossley, 968 S.W.2d 339, determined. Before dismissing this case, the trial 343 (Tex. 1998)).2 court allowed Sykes to file an amended petition, after which the court made a final adjudication The court of appeals disagreed with the trial that the Legislature has not waived governmental court, however, on whether such a dismissal immunity under the Texas Tort Claims Act with should be with or without prejudice. In general, a respect to any claim that Sykes brought against dismissal with prejudice is improper when the Harris County. Therefore, Sykes is foreclosed plaintiff is capable of remedying the jurisdictional from relitigating whether the Texas Tort Claims defect. See Dahl v. State, 92 S.W.3d 856, 862 Act (Tex.App.-Houston [14th Dist.] 2002, no pet.); Thomas v. Skinner, 54 S.W.3d 845, 847 [136 S.W.3d 640] (Tex.App.-Corpus Christi 2001, pet. denied); Bell v. State Dep't of Highways & Pub. Transp., 945 waives immunity in this case. Accordingly, the S.W.2d 292, 295 (Tex. App.-Houston [14th Dist.] court below erred in reversing the dismissal with 1997, writ denied). The court of appeals in this prejudice, and we modify the court of appeals' case relied on Bell to hold that Sykes's claims judgment to dismiss Sykes's claims against Harris should have been dismissed without prejudice. In County with prejudice. so doing, the court ruled contrary to a line of decisions stating that dismissal with prejudice is III appropriate when a trial court lacks subject matter jurisdiction because of the sovereign Next, we address the court of appeals' immunity bar. See Martin v. Tex. Bd. of Criminal holding reversing the summary judgment granted Justice, 60 S.W.3d 226, 231 (Tex.App.-Corpus by the trial court in favor of Carl Borchers. The Christi 2001, no pet.); City of Midland v. Texas Tort Claims Act states: "A judgment in an Sullivan, 33 S.W.3d 1, 6 (Tex.App.-El Paso 2000, action or a settlement of a claim under this pet. dism'd w.o.j.); City of Cleburne v. Trussell, 10 chapter bars any action involving the same S.W.3d 407, 409 (Tex.App.-Waco 2000, no pet.); subject matter by the claimant against the Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d employee of the governmental unit whose act or 767, 771 (Tex.App.-Houston [1st Dist.] 1999, pet. omission gave rise to the claim." Tex. Civ. Prac. & dism'd w.o.j.); Hampton v. Univ. of Tex.-M.D. Rem.Code § 101.106.3 The purpose of section Anderson Cancer Ctr., 6 S.W.3d 627, 629 101.106 is to protect employees of a governmental (Tex.App.-Houston [1st Dist.] 1999, no pet.); unit from liability when a judgment or settlement Lamar Univ. v. Doe, 971 S.W.2d 191, 197 has been obtained from the government employer (Tex.App.-Beaumont 1998, no pet.); Jones v. City pursuant to a claim under Chapter 101 of the of Stephenville, 896 S.W.2d 574, 577 (Tex.App.- Texas Tort Claims Act. Thomas v. Oldham, 895 Eastland 1995, no writ); Liberty Mut. Ins. Co. v. S.W.2d 352, 357 (Tex.1995). Section 101.106 Sharp, 874 S.W.2d 736, 740 (Tex.App.-Austin applies not only when there has been a judgment 1994, writ denied). We granted Borchers and against a governmental entity prior to the suit Harris County's petition to resolve this conflict. against the employee, but also when the settlement or judgment against the governmental Harris County v. Sykes, 136 S.W.3d 635 (Tex. 2004)

entity occurs at any time before or during the The court of appeals erred in holding that the pendency of the action against the employee. Id. claims against Harris County at 355. The bar applies regardless of whether the judgment is favorable or adverse to the [136 S.W.3d 641] governmental unit. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d should be dismissed without prejudice and that 339, 343 (Tex.1998). such a dismissal is not a judgment under section 101.106 of the Texas Tort Claims Act. Accordingly, This Court has never addressed whether a we modify the judgment of the court of appeals dismissal on a plea to the jurisdiction is a and render judgment that the plaintiff's suit is judgment for purposes of section 101.106 of the dismissed with prejudice. We also reverse the Texas Tort Claims Act. Several courts of appeals, portion of the court of appeals' judgment however, have considered this issue. In Brown v. reversing Carl Borchers's summary judgment and Prairie View A & M Univ., the Fourteenth Court render judgment that the plaintiff take nothing. of Appeals held that dismissing Prairie View A & M pursuant to a plea to the jurisdiction was not a Justice BRISTER, joined by Justice O'NEILL, judgment that triggered the bar of the Texas Tort concurring. Claims Act. 630 S.W.2d 405, 408 (Tex.App.- Houston [14th Dist.] 1982, writ ref'd n.r.e.). Since For reasons stated elsewhere, governmental Brown, however, that court, as well as two other immunity should not be raised in a motion called courts of appeals, have held that a dismissal a "plea to the jurisdiction."1 This case shows pursuant to a plea to the jurisdiction is a another reason why. judgment for purposes of section 101.106 of the The Court holds dismissal by plea to the Texas Tort Claims Act. Liu v. City of San Antonio, jurisdiction on immunity grounds must be with 88 S.W.3d 737, 744 (Tex.App.-San Antonio 2002, prejudice.2 While many intermediate appellate pet. denied); Dalehite v. Nauta, 79 S.W.3d 243, court opinions are cited in support, just as many 244 (Tex.App.-Houston [14th Dist.] 2002, pet. others can be cited to the contrary (and are now denied); Doyal v. Johnson County, 79 S.W.3d impliedly disapproved).3 How could so many 139, 140 (Tex.App.-Waco 2002, no pet.); Lowry courts have been so confused? v. Pearce, 72 S.W.3d 752, 755 (Tex.App.-Waco 2002, pet. denied). We have recently held dismissal must be without prejudice when based on mootness,4 Sykes argues that a granted plea to the forum non conveniens,5 or exclusive jurisdiction.6 jurisdiction does not qualify as a judgment Each of these dilatory matters could be raised in a because it does not dispose of the claims' merits. "plea to the jurisdiction," and presumably As we have already held, however, a dismissal changing the motion's name would not change the constitutes a final determination on the merits of preclusive effect. Thus, the rule regarding pleas to the matter actually decided. See Ritchey v. the jurisdiction appears to be: dismissal is usually Vasquez, 986 S.W.2d 611, 612 (Tex.1999) (per without prejudice, but sometimes with prejudice. curiam); Mossier v. Shields, 818 S.W.2d 752, 754 When? Why? (Tex.1991) (per curiam). In this case, there is a final adjudication that the Legislature has not The conflicting opinions by the courts of waived Harris County's immunity on the facts of appeals give no satisfactory explanation for either this case. Since the trial court properly dismissed result. Of the "with prejudice" courts, only one Sykes's claims against Harris County with appears to have made any attempt to explain why prejudice, Carl Borchers is entitled to derivative dismissal based on sovereign immunity should be immunity under section 101.106 of the Texas Tort preclusive; the explanation in that case was that Claims Act. plaintiffs cannot amend their pleadings or present Harris County v. Sykes, 136 S.W.3d 635 (Tex. 2004)

evidence on pleas to the jurisdiction7 —both of The only valid explanation for today's holding which assertions are wrong.8 is that changing the motion's name to a "plea to the jurisdiction" should not change the preclusive The "without prejudice" courts have effect. But rather than holding that a plea to the explained that dismissal based on lack of jurisdiction based on immunity should be dismissed with prejudice because that would be [136 S.W.3d 642] the effect of a summary judgment or dismissal after special exceptions on the same grounds, I jurisdiction can never be on the merits, and is would simply hold immunity must be raised by improper if the plaintiff can remedy the the latter motions. Accordingly, I agree with jurisdictional defect.9 But courts always have today's holding in Part II, though on different jurisdiction to determine their own subject- grounds; I join fully in Part III. matter jurisdiction,10 and a determination on that matter should not be open to endless relitigation. Justice BRISTER filed a concurring opinion, Further, as plaintiffs must be given an in which Justice O'NEILL joined. opportunity to remedy defects regarding immunity before any plea to the jurisdiction is Justice SCHNEIDER did not participate in granted,11 it is unclear why that opportunity the decision. should be extended in perpetuity. --------------- The Court adopts the "with prejudice" rule because "a plaintiff should not be permitted to Notes: relitigate jurisdiction once that issue has been finally determined."12 This begs the question; 1. The Texas Tort Claims Act states: when is jurisdiction finally determined? Nothing A governmental unit in the state is liable for: inherent in pleas to the jurisdiction suggests an answer. (1) property damage, personal injury, and death proximately caused by the wrongful act or Today's holding can only be explained as omission or the negligence of an employee acting another ad hoc effort to modernize an obsolete within his scope of employment if: common-law plea. Because a plea to the jurisdiction is not so much a motion as a category (A) the property damage, personal injury, or of complaints, it will always be hard to say with death arises from the operation or use of a motor- particularity or uniformity what rules ought to driven vehicle or motor-driven equipment; and apply. Wisely, the Texas Rules of Civil Procedure do not even try; we should follow that lead. (B) the employee would be personally liable to the claimant according to Texas law; and There would never have been as much confusion if sovereign immunity had to be raised (2) personal injury and death so caused by a by summary judgment or special exceptions. The condition or use of tangible personal or real summary judgment rules make clear not only the property if the governmental unit would, were it a deadlines and evidentiary rules, but also that any private person, be liable to the claimant according summary judgment granted is preclusive on the to Texas law. issues actually decided.13 Similarly, if sovereign Id. § 101.021. immunity is raised by special exceptions, claimants know they have one chance to replead 2. Sykes did not petition this Court for review of and are thereafter barred.14 the court of appeals' judgment. Harris County v. Sykes, 136 S.W.3d 635 (Tex. 2004)

3. This section was amended by Act of June 11, jurisdiction based on pleadings is granted); Bland 2003, 78th Leg., R.S., ch. 204 § 11.05. The Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 amended section became effective on September (Tex.2000) (holding plea to the jurisdiction is not 1, 2003 and applies to actions filed on or after the limited to consideration of pleadings). effective date. 9. See, e.g., Mullins, 111 S.W.3d at 274; Ab-Tex 1. See Tex. Dep't of Parks & Wildlife v. Miranda, Beverage, 96 S.W.3d at 686. 133 S.W.3d 217 (Tex.2004) (Brister, J., dissenting). 10. See Camacho v. Samaniego, 831 S.W.2d 804, 809 (Tex.1992). 2. 136 S.W.3d at 637. 11. Brown, 80 S.W.3d at 559. 3. See, e.g., Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 274 (Tex.App.-Texarkana 2003, no 12. 136 S.W.3d at 639. pet.) (holding dismissal of inmate's suit as 13. See Hyundai Motor Co. v. Alvarado, 892 frivolous due to defendant's immunity should S.W.2d 853, 854 (Tex.1995) (per curiam) (holding have been without prejudice); Ab-Tex Beverage that nonsuit without prejudice nevertheless Corp. v. Angelo State Univ., 96 S.W.3d 683, 686 operates as dismissal with prejudice as to issues (Tex.App.-Austin 2003, no pet.); Prairie View A decided in earlier partial summary judgment). & M Univ. of Tex. v. Mitchell, 27 S.W.3d 323, 327 (Tex.App.-Houston [1st Dist.] 2000, pet. denied); 14. See Friesenhahn v. Ryan, 960 S.W.2d 656, Li v. Univ. of Tex. Health Sci. Ctr. at Houston, 658 (Tex.1998); Tex. Dep't of Corr. v. Herring, 984 S.W.2d 647, 654 (Tex.App.-Houston [14th 513 S.W.2d 6, 10 (Tex.1974). Dist.] 1998, pet. denied); see also Cervantes v. Tyson Foods, Inc., 130 S.W.3d 152, 157-58 --------------- (Tex.App.-El Paso 2003, pet. filed) (holding order granting plea to the jurisdiction for missing deadline for filing administrative appeal must be without prejudice); Bell v. State Dep't of Highways & Pub. Transp., 945 S.W.2d 292, 295 (Tex.App.-Houston [1st Dist.] 1997, writ denied) (holding sovereign immunity claim raised by special exception could not be dismissed with prejudice).

4. Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex.1999) (per curiam).

5. Owens Corning v. Carter, 997 S.W.2d 560, 580 n. 13 (Tex.1999).

6. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex.2002).

7. Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex.App.-Austin 1994, writ denied).

8. See County of Cameron v. Brown, 80 S.W.3d 549, 558-59 (Tex.2002) (holding plaintiff must be given opportunity to replead before plea to the Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015)

458 S.W.3d 1 judicial review. At issue is whether Houston Municipal Employees Pension System (HMEPS) John Klumb, Veronica McClelland, Vivian board members violated HMEPS's enabling Montejano, John Gonzalez, Anita Robles, statute by requiring the petitioners' continued and Charmaine Pilgrim, on behalf of participation in the City of Houston's defined- themselves and all others similarly benefit pension plan. As provided by statute, the situated, and the City of Houston, pension board has exclusive, final, and binding Petitioners authority to interpret, construe, and supplement v. omissions in the statute and to determine all Houston Municipal Employees Pension questions pertaining to eligibility for System, Barbara Chelette, David L. Long, membership, services, and benefits. Tex. Rev. Civ. Lenard Polk, Roy Sanchez, and Lonnie Stat. Ann. Art . 6243h, § 2(x) -(y). Consistent Vara, Respondents [458 S.W.3d 4] NO. 13–0515 with this legislative mandate, we have held that Supreme Court of Texas. HMEPS's enabling statute precludes judicial review of such matters. Houston Mun. Emps. Argued November 6, 2014 Pension Sys. v. Ferrell, 248 S.W.3d 151, 158–59 OPINION DELIVERED: March 20, 2015 (Tex. 2007). To defeat the presumptive jurisdictional bar, the petitioners assert that Katherine D. Mackillop, Reagan M. Brown, subject-matter jurisdiction exists here because the Norton Rose Fulbright, 1301 McKinney Street, pension-board members acted ultra vires and Suite 5100, Houston TX 77010–3095, for violated the Texas Constitution by augmenting Petitioner John Klumb. the statute rather than interpreting it.

John B. Wallace, Senior Assistant City Attorney, The underlying dispute arose when the City of Judith Lee Ramsey, Chief, General Litigation Houston attempted to remove a division of Section, David M. Feldman, Lynette Fons, City of employees from the pension system by forming Houston Legal Department, P.O. Box 368, quasi-governmental entities to perform the same Houston TX 77002–0368, for Petitioner City of governmental functions using the same Houston. employees. Contemporaneously with the City's restructuring efforts, the pension board Adam Milasincic, Ahmad Zavitsanos, Anaipakos, determined that those employees remained under Alavi & Mensing PC, 1221 McKinney, Suite 3460, the City's effective control and payroll and Houston TX 77010, Michelle Stratton, Thomas R. therefore fell within the ambit of the statutory Phillips, Travis J. Sales, Baker Botts L.L.P., 910 definition of “employee,” which defines an Louisiana Street, One Shell Plaza, Houston TX individual's status as a HMEPS member. See Tex. 77002, for Respondent Houston Municipal Rev. Civ. Stat. Ann. Art . 6243h, §§ 1(11) (defining Employees Pension System. “employee”), (13) (defining “member”). The board's decision resulted in otherwise eligible Opinion members being denied “retiree” status and further required affected employees to continue Justice Guzman delivered the opinion of the making contributions to the pension fund despite Court. being under the immediate employ of a third- The dispute in this case arises in the context of a party entity. See id. §§ 1(22) (defining “retiree”), unique statutory scheme that confers expansive (24) (defining “separation from service”). The administrative authority and broadly prohibits individual petitioners and the City assert that the pension board unlawfully redefined the term Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015)

“employee” to capture these employees after they [458 S.W.3d 5] had ceased working for the City. Considering HMEPS and the board members' plea to the inconsistency” in the statute in the manner and to jurisdiction, the trial court found jurisdiction to the extent the board deems “for the greatest be lacking, and the court of appeals affirmed. 405 benefit of all members”; and (4) determine all S.W.3d 204, 209 (Tex. App.—Houston [1st Dist.] legal and factual questions pertaining to the 2013). fund's administration and eligibility for membership, services, and benefits. Id. So broad We conclude the trial court lacks subject-matter is the board's authority that the statute expressly jurisdiction over the claims asserted because (1) mandates that “[t]he determination of any fact by the pension board acted within the scope of its the pension board and the pension board's broad statutory authority in construing the term interpretation of [the] Act are final and binding “employee” and (2) the individual petitioners on any interested party, including members, have not asserted viable constitutional claims. deferred participants, retirees, ... and the city.” Id. Accordingly, we affirm the court of appeals' § 2(y). But though the board's authority under the judgment. statute is indisputably broad, the allegation in the underlying lawsuit is that the pension board I. Background crossed the line between interpreting the statute, which it is expressly authorized to do, and HMEPS is organized and operated under Article unlawfully altering it by supplementing the 6243h of the Texas Revised Civil Statutes, which statutory definition of “employee” in a manner requires cities with a population of more than 1.5 that encompasses personnel the City has million to make contributions to an employee outsourced to a third-party entity. pension fund in an amount based in part on the combined salary of the pension system's At the heart of the dispute is the City's effort to members.1 Tex. Rev. Civ. Stat. Ann. Art . 6243h, reduce its pension-fund contributions by using §§ 1–28 ; see also id. § 8(d). The statute defines a outsourcing as part of a comprehensive cost- “member” of the pension fund as “each active saving initiative. Historically, the City has employee included in the pension system,” except employed more than 100 people in its Convention for statutorily ineligible employees. Id. § 1(13). An and Entertainment Facilities Department “employee” is “any [eligible] person ... who holds (convention department) to operate municipally- a municipal position [,] ... whose name appears owned properties such as theaters, convention on a regular full-time payroll of a city[,] ... and centers, and parking lots. In May 2011, however, who is paid a regular salary for services.” Id. § the City announced plans to remove those 1(11). employees from the municipal payroll—and thus the pension system—by outsourcing convention HMEPS is governed by a Board of Trustees and entertainment municipal functions to imbued with broad authority to administer, Houston First Corporation, a City-controlled, tax- manage, and operate the pension fund. See id. § funded local government corporation. Among 2(x). Among other powers, the pension board can other indicia of control, Houston First's budget is (1) adopt written rules and guidelines for the approved by the Houston City Council, and its administration of the pension fund; (2) interpret board is appointed by the mayor and confirmed and construe the Act and any summary-plan by the city council. documents and procedures, provided such construction is consistent with section 401 of the In response to the City's transition plan, the Internal Revenue Code of 1986, as amended pension board announced in August 2011 that the (IRC); (3) “correct any defect, supply any definition of “employee” in Article 6243h omission, and reconcile any “includes a full-time employee of a Texas local government corporation ... controlled by the City, Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015)

upon a determination by the External Affairs In a letter to the pension system's executive Committee of the Board of Trustees that such director, the City Attorney expressly disavowed [local government corporation]'s employees are any right or ability of the City to control CCSI, Employees for purposes of the [HMEPS] Plan.” stating “[n]either the City, the Mayor, nor City Thereafter, the board amended the pension-plan Council will have any appointment authority or documents to incorporate this construction of the control over the corporation or its board of term “employee.” directors.” Instead, CCSI was described as “a non- governmental, non-profit corporation whose Undeterred, the City formed a nonprofit entity board will be self perpetuating.” The letter further named Houston First Foundation and notified the explained that “[CCSI] will be contracting for its pension board that the newly formed entity would own employee benefits, including a [401(k) ] plan, employ all the City employees who had been and will not participate in any City of Houston slated to join Houston First Corporation. benefit programs.” The City thus took the position Believing Houston First Foundation to be a that following transition of convention wholly-owned and controlled subsidiary of department employees to CCSI, the employees Houston First Corporation—and by extension, the would no longer be City employees or HMEPS City—the pension board adopted a resolution in members and, as a result, the City would not be October 2011 that reiterated the previously obligated to make contributions to the pension adopted construction of the term “employee” and fund based on those employees' salaries. further announced that “employees of any entity controlled, directly or indirectly, by [the City] are Despite this maneuver, the pension board's considered Employees for purposes of External Affairs Committee issued a resolution in membership in HMEPS, unless the External November 2011 to the effect that the leased Affairs Committee expressly determines workers “would be in a control group and would otherwise.” remain as members of the plan.” Though directly employed by CCSI, the leased employees (1) Subsequently, the City abandoned Houston First performed substantially similar duties as they had Foundation and formed another nonprofit when employed directly by the City; (2) operated corporation called Convention and Cultural in the same governmental facilities; (3) were Services, Inc. (CCSI) to operate in conjunction subject to removal from their positions at the with Houston First to provide convention and City's request; and (4) were compensated using entertainment services to the City. Although funds furnished by the publicly-funded local Houston First would still provide those services to government corporation, which was contractually the City, it would not employ the service obligated to reimburse CCSI for the employees' personnel directly. Instead, CCSI would employ services on a dollar-for-dollar basis. and lease the workforce to Houston First, its only client. By agreement, Houston First was obligated With the exception of a group of City employees to fully reimburse CCSI for “all internal and who were within a few years of retiring, the City external proceeded to transfer convention and entertainment services and employees in [458 S.W.3d 6] accordance with the transition plan. When the transfer of personnel had been consummated, costs and expenses associated with” the provision three CCSI employees—John Klumb, Veronica of personnel. CCSI purported to operate McClelland, and Vivian Montejano—sought full independently, but Houston First and CCSI had retirement benefits from HMEPS on the basis overlapping executives, some of whom had been that their employment with the City had ended City employees. when they became CCSI employees and, at that time, they were otherwise eligible to retire. See id. §§ 1(22) (defining “retiree”), (1)(24) (defining Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015)

“separation from service”), 10(b) (eligibility change the definition of ‘employee’ contained in requirements for retirement benefits); July 2011 Section 1(11) of Article 6243h.” The Petitioners Amended & Restated Meet & Confer Agreement requested declaratory relief and an injunction Between HMEPS and the City § 14 (July 2011 against the Trustees based on the following MCA) (eligibility for retirement pension). Three alleged ultra vires acts: (1) voting to approve a other CCSI employees—John Gonzalez, Anita definition of the term “employee” that improperly Robles, and Charmaine Pilgrim—claimed that, alters the statutory definition of that term; (2) although not yet eligible to retire, they were no compounding that unauthorized act by adopting longer employed by the City and were therefore the October 2011 resolution, which did the same; entitled to defer retirement status and cease (3) authorizing the External Affairs Committee to having HMEPS contributions of 5% deducted determine who qualifies as an “employee” in from their salaries. See Tex. Rev. Civ. Stat. Ann. contravention of a written agreement with the Art . 6243h, §§ 8(a) (requiring employer to deduct City; (4) construing Article 6243h in a manner pension-fund contributions from members' inconsistent with section 401 of the IRC ; (5) salaries during employment), 12 (deferred- refusing a non-discretionary duty to pay Klumb, retirement option); July 2011 MCA § 8. Based on McClelland, and Montejano their retirement the pension board's interpretation of the term benefits following separation of service from the “employee” in Article 6243h, as adopted in the City; and (6) refusing a non-discretionary duty to revised pension-plan documents, the External recognize Gonzalez, Robles, and Pilgrim's Affairs Committee concluded that the transferred separation from service with the City. According employees remained “employees,” and thus to the Petitioners, the pension board's “members” of the pension system, and that no supplemental definition of the term “employee” separation from municipal service had occurred. effected an amendment of the statute, which was neither approved by the City nor adopted in Klumb, McClelland, Montejano, Gonzalez, accordance with statutorily mandated procedures Robles, and Pilgrim (collectively, the Petitioners) and historical practice (what the parties refer to sued HMEPS, alleging violations of the Texas as “meet-and-confer agreements” between Constitution and breach HMEPS and the City). See id. § 3(n) (authorizing the pension board, “[n]otwithstanding any other [458 S.W.3d 7] law,” to “enter into a written agreement with the city regarding pension issues and benefits” that is of contract. The Petitioners sought monetary binding on the City and HMEPS members if damages and a declaration that they were no approved under procedures specified in the longer City employees as that term is defined in statute). The Petitioners further asserted the Article 6243h. In a plea to the jurisdiction, pension board had improperly delegated HMEPS argued that the trial court lacked subject- authority to the External Affairs Committee in matter jurisdiction because (1) Article 6243h violation of an existing meet-and-confer precludes judicial review of the pension board's agreement, which states that, except for personnel decisions interpreting that statute and decisions “no committee [of the pension fund] determining eligibility for membership and shall have authority to make final approvals, but benefits and (2) sovereign immunity bars the shall only make recommendations to the full Petitioners' breach-of-contract and constitutional board.” claims. The City intervened, generally aligning itself with Petitioners responded by amending their petition the Petitioners and seeking similar injunctive and to assert ultra vires, equal-protection, and due- declaratory relief. course-of-law claims against the five pension- board members (Trustees) who voted to amend HMEPS and the Trustees (collectively, HMEPS) the HMEPS pension-plan documents to “illegally filed an amended plea to the jurisdiction, arguing Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015)

that both the pension board's interpretation of the alternative, they assert that the evidence raises a term “employee” and its application to the factual fact issue concerning the existence of jurisdiction circumstances presented were “final and binding” that must be resolved by the trier of fact on with no right of judicial review. See id. § 2(x)-(y); remand to the trial court.2 Ferrell, 248 S.W.3d at 158–59. HMEPS further asserted sovereign immunity bars the Petitioners' II. Discussion breach-of-contract and constitutional claims because (1) violation of a meet-and-confer A. Standard of Review agreement cannot serve as a basis for an ultra vires claim and (2) the constitutional claims are Subject-matter jurisdiction is essential to the facially invalid. Following a hearing, the trial court's power to decide a case. Tex. Dep't. of court granted the plea to the jurisdiction and Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 dismissed the suit for want of jurisdiction. (Tex. 2004). The existence of subject-matter jurisdiction is a question of law that can be The court of appeals affirmed, holding that (1) challenged, as it was here, by a plea to the Texas courts have jurisdiction to determine jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 whether the pension board's actions are ultra S.W.3d 547, 554 (Tex. 2000). We review de novo vires ; (2) the pension board's construction of the the trial court's disposition of HMEPS's plea to term “employee” was not an ultra vires act the jurisdiction. Miranda, 133 S.W.3d at 226. because it In doing so, we consider the pleadings and factual [458 S.W.3d 8] assertions, as well as any evidence in the record that is relevant to the jurisdictional issue. City of was consistent with the board's exclusive Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. authority to interpret—and supply any omission 2010). Construing the pleadings liberally in favor in—the statute; (3) violation of a meet-and-confer of the plaintiffs, we look to the pleaders' intent agreement does not support an ultra vires claim; and determine whether the pleaders have alleged (4) the trial court lacks subject-matter jurisdiction facts affirmatively demonstrating the court's to determine whether the board's supplemental jurisdiction to entertain the matter. Id. When a definition of “employee” disqualifies the pension plea to the jurisdiction challenges the existence of plan under the IRC; (5) the Petitioners' equal- jurisdictional facts, we consider whether evidence protection challenge is meritless because in the record raises a fact issue, and if it does, the preservation of funding sources for the pension jurisdictional issue must be resolved by the trier fund provides a rational basis for continuing to of fact. Miranda, 133 S.W.3d at 227–28. treat the transferred employees as employees of Conversely, the trial court must rule on the plea the City; (6) the petitioner's due-course-of-law as a matter of law if the evidence is undisputed or claim fails because the employees lack a vested fails to raise a fact question. Id. at 228. property interest in the retirement benefits at issue and the funds deducted from their salaries The jurisdictional issue in this case has two as contributions to the pension fund; and (7) the aspects. The first is whether courts have authority trial court did not err in striking and refusing to to review the pension board's actions under an consider an affidavit offered to establish the ultra vires theory notwithstanding Article board's intent to amend, rather than interpret, the 6243h's ban on judicial review. The second is statute and, in any event, the exclusion of the whether sovereign immunity bars the Petitioners' evidence was harmless. 405 S.W.3d at 215–27. constitutional claims.

On appeal to this Court, the Petitioners and the [458 S.W.3d 9] City raise essentially the same grounds for denying HMEPS's plea to the jurisdiction. In the B. Ultra vires Claims Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015)

The pension board has broad authority to that the pension board misinterpreted the statute interpret and apply Article 6243h, to supplement but observing that “[a] different case might be omissions in its terms, to adopt written rules and presented if the plaintiffs alleged the board was guidelines for the fund's administration, and to clearly violating some provision of the statute”). determine all questions of law and fact pertaining to the same. See Tex. Rev. Civ. Stat. Ann. Art . As stated in Heinrich, the ultra vires doctrine 6243h, § (2)(x). The board's actions with respect applies when a government official's conduct is to these matters are “final and binding,” id. § 2(y), “without legal or statutory authority.” 284 S.W.3d and therefore not amenable to judicial review, see at 372. To trigger the ultra vires exception to Ferrell, 248 S.W.3d at 158–59 (holding that sovereign immunity, “a suit must not complain of Article 6243h's “final and binding” language a government officer's exercise of discretion, but precludes judicial review of the pension board's rather must allege, and ultimately prove, that the decision denying police officers service credit for officer acted without legal authority or failed to time they spent training as cadets in the Houston perform a purely ministerial act.” Id . In the Police Academy). Neither the Petitioners nor the present case, the Petitioners and the City allege City disputes the validity of the foregoing both categories of ultra vires acts. The threshold principles. issue, however, is whether the pension board acted without legal authority by expanding Article Rather, they assert those principles simply do not 6243h's definition of “employee” without the apply when the pension board fundamentally City's approval and in conflict with the plain alters the terms of the statute without the City's language of the statute.3 With the exception consent. When viewed in this way, they contend the jurisdictional inquiry is not determined by [458 S.W.3d 10] reference to Ferrell, but instead is controlled by City of El Paso v. Heinrich, in which we held that of the allegation that the pension board sovereign immunity does not prohibit ultra vires unlawfully delegated decision-making authority suits seeking “to require state officials to comply to a committee, the validity of the remaining ultra with statutory or constitutional provisions.” 284 vires claims depends on the resolution of this S.W.3d 366, 372 (Tex. 2009). issue. We thus begin our analysis there.

Sovereign immunity and the unavailability of 1. The Board's Construction of the Term judicial review are related, but conceptually “Employee” distinct concepts. The former serves the pragmatic purpose of “shield[ing] the public from Article 6243h defines the term “employee” as “any the costs and consequences of improvident [eligible] person ... (A) who holds a municipal actions of their governments.” Tooke v. City of position ...; (B) whose name appears on a regular Mexia, 197 S.W.3d 325, 332 (Tex. 2006). The full-time payroll of a city ...; and (C) who is paid a latter effectuates a legislative prerogative to regular salary for services.” Tex. Rev. Civ. Stat. protect the inviolability of an administrative Ann. Art . 6243h, § 1(11). The constituent terms process while simultaneously recognizing that “municipal position,” “a regular full-time payroll suits challenging an administrative action of a city,” and “regular salary for services” are not necessarily implicate sovereign immunity. defined. HMEPS therefore maintains that it has Whatever functional differences might exist the authority to interpret these terms and fill in between these concepts, we will assume for the interstices of the statute to address newly purposes of our analysis that the ultra vires emerging circumstances affecting the doctrine is an exception to Article 6243h's ban on administration of the statute “for the greatest judicial review. See Ferrell, 248 S.W.3d at 160 benefit of all members.” See id. § 2(x)(2), (3). (Brister, J., concurring) (acknowledging that Moreover, because the statute expressly Article 6243h forecloses judicial review of claims authorizes the pension board to adopt written Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015)

rules and guidelines for the administration of the Affairs Committee of the Board of Trustees that pension fund, HMEPS contends the board had such [local government corporation]'s employees discretion to adopt supplemental language adding are Employees for purposes of the [HMEPS] contours to the statutory definition and to amend Plan.” The board's additional explication of the the pension-plan documents accordingly. See id. § definition as including “employees of any entity 2(x)(1). controlled, directly or indirectly, by [the City]” is also well within the board's discretionary The Petitioners and the City's contrary position is authority. Absent a conspicuous and that no interpretation was required or permitted irreconcilable conflict, any further consideration because, manifestly, personnel employed by CCSI of the matter would impermissibly encroach on are neither holding municipal positions nor being the unreviewable, discretionary authority carried on the City's payroll. Accordingly, they afforded to the board under Article 6243h.5 See contend that to reach these employees, the Ferrell, 248 S.W.3d at 158–59 (holding that Trustees effectively amended and expanded the courts lack jurisdiction to require pension board statutory definition and did so without entering to comply with a judicial interpretation of Article into a section 3(n) meet-and-confer agreement 6243h ). with the City. See id. § 3(n) (“Notwithstanding any other law, the pension board may enter into a Furthermore, there is no requirement that the written agreement with the city regarding pension pension board obtain the City's consent to issues and benefits. The agreement must be exercise its discretionary powers. Section 3(n) of approved by the pension board and the governing the statute authorizes, but does not require, the body and signed by the mayor and by the pension pension board to enter into a written agreement board or the pension board's designee.”). with the City regarding pension and benefit issues. See Tex. Rev. Civ. Stat. Ann. Art . 6243h, § The breadth of the pension board's authority 3(n) (“[T]he pension board may enter into a under Article 6243h is inescapable. As it pertains written agreement with the city regarding pension to the matter at hand, the statute expressly issues and benefits.” (emphasis added)). Section authorizes the pension board to construe the 3(n) does not purport to constrain the board's statute, add language it deems necessary for the authority under section 2(x) ; it merely provides administration of the pension fund, and an alternative mechanism for the board to resolve determine all eligibility questions and all other pension issues. When the pension board and the legal and factual matters pertaining to the fund's City agree on a pension issue, the statute allows administration. Courts may not review the them to execute an enforceable contract to that board's actions in doing so absent a manifest effect. When they cannot agree, the statute makes conflict with express statutory terms. That is not the board's determinations of fact and statutory the case here because (1) the definition of interpretations “final and binding.” See id. § 2(y). “employee” is composed of essential terms that are undefined and (2) the supplemental language Although the pension board has unquestionably the board adopted neither inherently nor patently broad discretionary authority under section 2(x), conflicts with the terms of the statute.4 We we caution that the board may not violate the therefore conclude that, as a statute. Though we need not consider the matter here, we do not foreclose the possibility that, in [458 S.W.3d 11] appropriate circumstances, a particular interpretation of the statute could be ultra vires . matter of law, the pension board did not act We observe only the absence of such without legal authority in interpreting the term circumstances here, leaving any further dispute “employee” to include “a full-time employee of a regarding the matter to the Legislature, as it Texas local government corporation ... controlled evidently intended.6 See Ferrell, 248 S.W.3d at by the City, upon a determination by the External 160 (Brister, J., Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015)

[458 S.W.3d 12] The Petitioners and the City contend, however, that the July 2011 meet-and-confer agreement concurring) (noting, “Our legislators [have] amended the statute and divested the pension decided they wish to be the final (and frequent) board of the power to delegate final decision- arbiter of disputes about how these pension making authority to a committee, requiring systems should be run”; consequently, the courts instead that committees “shall only make “must leave them to it, as the Texas Constitution recommendations to the full Board.” The expressly allows the Legislature to grant Petitioners and the City allege that the October jurisdiction to administrative bodies rather than 2011 resolution thus violates the terms of the the courts”). meet-and-confer agreement and is ultra vires . We disagree. 2. Delegation of Board Authority to a Committee Meet-and-confer agreements are written contracts, and regardless of whether the parties The Petitioners and the City also contend the deem the provisions of the contract to be an pension board acted ultra vires by delegating “amendment” of the statute, noncompliance with decision-making authority to the External Affairs a contract does not give rise to an ultra vires Committee in violation of the following provision claim. See City of Houston v. Williams, 353 in a July 2011 meet-and-confer agreement S.W.3d 128, 149 (Tex. 2011) ; Tex. Natural Res. between HMEPS and the City: Conservation Comm'n v. IT–Davy, 74 S.W.3d 849, 855–57 (Tex. 2002). Therefore, any claim Except for meet and confer that the pension board violated the July 2011 decisions and personnel decisions, meet-and-confer agreement is a breach-of- no committee shall have authority contract claim that cannot be maintained absent a to make final approvals, but shall waiver of sovereign immunity. As we have only make recommendations to the previously explained, “declaratory-judgment suits full board. against state officials seeking to establish a contract's validity, to enforce performance under The pension board's October 2011 resolution a contract, or to impose contractual liabilities are nevertheless states that “employees of an entity suits against the State.... Consequently, such suits controlled, directly or indirectly, by the City are cannot be maintained without legislative considered Employees for purposes of permission.” IT–Davy, 74 S.W.3d at 855–56. No membership in [the Pension Fund], unless the waiver of immunity is alleged or supported on the External Affairs Committee expressly determines record before the Court.7 otherwise; provided, however that nothing in this resolution would apply to ... any otherwise [458 S.W.3d 13] ineligible employee as determined by the External Affairs Committee.” C. Equal Protection and Due Course of Law

Article 6243h generally permits delegation. See In addition to asserting ultra vires claims as a Tex. Rev. Civ. Stat. Ann. Art . 6243h, § 3(k) (“The basis for subject-matter jurisdiction, the pension board may allocate among the trustees Petitioners further contend that sovereign the responsibilities of the pension board under immunity does not bar relief on their claims this Act and may designate any person who is not under the Texas Constitution. See, e.g., Tex. Dep't a trustee ... to carry out the responsibilities of the of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. pension board.”). Under section 3(k) of the 2011) (suits to require state officials to comply statute, the pension board is permitted to with constitutional provisions are not prohibited delegate decision-making authority in the manner by sovereign immunity); see also Tex. Const. Art . effectuated by the October 2011 resolution. I §§ 3 (equal-protection clause), 19 (due-course- Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015)

of-law clause). While it is true that sovereign Ins. Co. v. Combs, 258 S.W.3d 627, 639 (Tex. immunity does not bar a suit to vindicate 2008). In conducting a rational-basis review, we constitutional rights, Heinrich, 284 S.W.3d at consider whether the challenged action has a 372, immunity from suit is not waived if the rational basis and whether use of the challenged constitutional claims are facially invalid, see classification would reasonably promote that Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 purpose. Id. These determinations are “not (Tex. 2011). subject to courtroom fact-finding and may be based on rational speculation unsupported by 1. Equal Protection evidence or empirical data.” FCC v. Beach Commc'ns, Inc ., 508 U.S. 307, 315, 113 S.Ct. The Petitioners allege the pension board treated 2096, 124 L.Ed.2d 211 (1993).8 them differently than former city employees who now work for separate legal entities due to Even assuming the pension board has in fact municipal outsourcing. For example, the treated similarly situated employees differently, Petitioners argue the City employees working at we hold the Petitioners failed the Houston Zoo became employees of Houston Zoo, Inc., and that the pension fund determined a [458 S.W.3d 14] separation of service occurred as a result. According to the Petitioners, the zoo employees to plead a viable equal-protection claim because were declassified as “employees” and pension- the board's actions are rationally related to at system “members” and some were thereafter least two legitimate government objectives which permitted to collect their pension benefits while are promoted by the challenged classification. remaining employed in essentially the same jobs. First, the pension board has a legitimate interest The Petitioners contend they are similarly in preserving sources of pension funding that are situated to the zoo employees but are being adequate to meet the demands on the fund, which treated differently. They further assert—as they it may rationally accomplish by ensuring the City must to state a valid equal-protection claim—that meets its contribution obligations to the pension the pension board's disparate determination that system. See 405 S.W.3d at 225 (citing U.S.R.R. CCSI employees remain members of the pension Ret. Bd. v. Fritz, 449 U.S. 166, 174, 101 S.Ct. 453, system is not rationally related to any legitimate 66 L.Ed.2d 368 (1980), which recognizes governmental objective. preservation of pension funds as a legitimate basis for distinguishing among pensioners). The Texas Constitution provides that all people Continued depletion of the workforce through “have equal rights, and no man, or set of men, is nominal privatization of municipal services would entitled to exclusive separate public emoluments, undoubtedly restrict or significantly impair the or privileges.” Tex. Const. Art . 1 § 3. The pension system's funding sources. The Petitioners contend the pension board's preservation of funding sources is a legitimate determination that they remain members of and rational basis for concluding that, under the HMEPS violated their right to equal protection of circumstances presented here, convention the law. To state a viable equal-protection claim department workers performing municipal under the Texas Constitution, the Petitioners functions as CCSI employees remain members of must show they have been “treated differently the pension system.9 Given the long-term from others similarly situated.” Tex. Dep't of ramifications of concerted efforts to reduce the Transp. v. City of Sunset Valley, 146 S.W.3d 637, City's contributions to the pension fund, any 647 (Tex. 2004). Because neither a suspect previous failure of the pension board to perceive classification nor a fundamental right is involved, or acknowledge a threat to pension-funding the Petitioners must further demonstrate that the sources does not change the analysis of this issue. challenged decision is not rationally related to a Cf. McDonald v. Bd. of Election Comm'rs of legitimate governmental purpose. First Am. Title Chicago, 394 U.S. 802, 808, 89 S.Ct. 1404, 22 Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015)

L.Ed.2d 739 (1969) (“[A] legislature traditionally unconstitutionally denied them retirement has been allowed to take reform ‘one step at a benefits they would otherwise have been eligible time, addressing itself to the phase of the problem to collect after a separation of service from the which seems most acute to the legislative mind[ City. Gonzalez, Robles, and Pilgrim were not ]’; and a legislature need not run the risk of losing eligible for retirement at the time they became an entire remedial scheme simply because it CCSI employees, but they claim a vested property failed, through inadvertence or otherwise, to right in funds deducted from their salaries and cover every evil that might conceivably have been contributed to the pension fund on their behalf. attacked.” (internal citation omitted)). The Texas Constitution provides that “[n]o citizen The pension board also has a legitimate interest of this State shall be deprived of life, liberty, in policies that lessen the risk of overpaying property, or privileges or immunities ... except by pensioners or allowing them to “double dip.” See, the due course of the law of the land.” Tex. Const. e.g., Connolly v. McCall, 254 F.3d 36, 43 (2d Cir. Art . I, § 19. Before any substantive or procedural 2001) (per curiam) (recognizing “legitimate due-process rights attach, however, the interest in saving money by barring pension Petitioners must have a liberty or property practices that have the character of ‘double- interest that is entitled to constitutional dipping’ ”). In this case, the pension board has protection. Than, 901 S.W.2d at 929. A disallowed functional City employees from constitutionally protected right must be a vested collecting government-funded HMEPS retirement right, which is “ ‘something more than a mere benefits while also receiving salaries and 401(k) expectancy based upon an anticipated contributions originating in the dollar-for-dollar continuance of an existing law.’ ” City of Dallas v. expense reimbursements CCSI collects from Trammell, 129 Tex. 150, 101 S.W.2d 1009, 1014 Houston First, the City controlled and tax-funded (1937) (quoting Dodge v. Bd. of Educ. of City of local government corporation. The pension Chicago, 364 Ill. 547, 5 N.E.2d 84, 86 (1936) ). board's decision to eliminate further demands on The court of appeals held, and we agree, that the the public fisc is rationally related to its interest in Petitioners' due-course claims are facially invalid preventing employment arrangements that because the Petitioners have no vested property permit forms of “double dipping.” right to the pension-plan contributions and future retirement benefits at issue. 405 S.W.3d at 226– Because we conclude that any differentiation 27. between employees is rationally related to legitimate governmental objectives, the Our decision in the City of Dallas v. Trammell is Petitioners' equal-protection claims fail as a dispositive of the Petitioners' claims to a vested matter of law. property interest in retirement benefits as of the date they otherwise became eligible but for the 2. Due Course of Law pension board's articulated and applied definition of the term “employee” in Article 6243h. In In their remaining claims, the Petitioners contend Trammell, we considered the constitutionality of they have been deprived a statutory amendment that effected a substantial reduction in the monthly pension benefits payable [458 S.W.3d 15] to a police-department retiree. Id. at 1009. The purpose of the contested enactment was to rectify of vested property rights without due process. See inadequacies in pension-plan funding that Tex. Const. Art I § 19 ; see also Univ. of Tex. Med. threatened the plan's long-term solvency. Id. at Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (no 1010, 1015–16. In challenging the statutory meaningful distinction exists between the terms amendment, the retiree asserted that he had a “due process” and “due course of law”). Klumb, vested property right in the amount of the McClelland, and Montejano allege HMEPS monthly pension benefit that was granted to him Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015)

on the date of his retirement and that any Although Trammell is directly adverse to the subsequent reduction of that amount was Petitioners' claims, they question Trammell 's unconstitutional. Id. The question presented was continued vitality based on a subsequent whether, as of the date of retirement, a pensioner amendment to the Texas Constitution, citing has a vested right in future installment payments article XVI, section 67 of the Texas Constitution that could not be altered by subsequent legislative and City of Fort Worth v. Howerton, 149 Tex. action. Id. at 1011. 614, 236 S.W.2d 615, 619 (1951). According to the Petitioners, the cited authority negates legislative In analyzing the issue, we adopted authority to abolish HMEPS because under section 67(c), if the Legislature were to abolish the rule that the right of a pensioner the pension system (as opposed to merely to receive monthly payments from amending the statute), it would be required to the pension fund after retirement pass a law authorizing the City to elect to establish from service, or after his right to a pension system for its municipal employees. participate in the fund has accrued, SeeTex. Const. Art. Xvi , § 67 (c). Per Howerton, if is predicated upon the anticipated the City so elected, any subsequently established continuance of existing laws, and is pension fund would no longer be subject to subordinate to the right of the legislative control. See Howerton, 236 S.W.2d at Legislature to abolish the pension 619 (if city adopts a pension fund pursuant to system, or diminish the accrued constitutional authority, the Legislature is not benefits of pensions thereunder.... authorized to change the plan without the city's consent). Id . at 1013. Applying this rule, we said there is no vested interest in future pension installments that Obviously, certain contingencies must occur would preclude the Legislature from repealing or before an interest could be said to be fixed and modifying the law on which the pension system is unalterable by the Legislature as contemplated in founded, even if doing so would adversely impact Howerton ; the main ones being that the or even abolish the right to future payment of Legislature would have to abolish the pension unaccrued benefits. Id . at 1012, 1014 ; see also id . system and the City would have to elect to 1013–15. Stated another way, the right to receive establish a pension fund. Perhaps the City would benefits under a pension fund “is made subject to elect to do so if given the opportunity, but even if the City were to establish its own pension system, the Petitioners cite no limit on the City's authority [458 S.W.3d 16] to amend or abolish any such system. Thus, we are not persuaded the cited authority undermines the reserved power of the Legislature to amend, Trammell 's core holding that no vested property modify, or repeal the law upon which the pension right exists when a pension fund can be amended system is erected, and this necessarily constitutes or abolished by the governing authority; it makes a qualification upon the anticipated pension and a no difference whether the authority with the reserved right to terminate or diminish it.” Id. at power to abolish the pension system is the 1014. We concluded Trammell with “a direct Legislature or some other entity. The crux of holding that as to future installments of a pension Trammell 's analysis is that any right emanating the pensioner has no vested right,” id. at 1017, from a mere expectancy is not vested, and the and we have since affirmed Trammell 's root Petitioners have cited no authority elevating their analysis on several occasions. See Ex Parte Abell, interests in the pension fund beyond a mere 613 S.W.2d 255, 261–62 (Tex. 1981) ; Bd. of expectancy to a constitutional guarantee. We Managers of Harris Cnty. Hosp. Dist. v. Pension therefore reject the distinction the Petitioners Bd., 449 S.W.2d 33, 37 (Tex. 1969) ; Woods v. attempt to draw between Trammell and the Reilly, 147 Tex. 586, 218 S.W.2d 437, 441 (1949). circumstances presented here.10 Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015)

Approaching the matter from a different angle, employee's] private property and the Petitioners embrace Trammell to the extent it then paid into the pension fund; confirms that interests in pension benefits are rather the deductions were “set fixed, and thus vested, when all contingencies to aside from one public fund and entitlement have occurred. The Petitioners turned over to another” and are no contend that any contingencies to their less public money after the payment entitlement to pension benefits were satisfied into the pension fund than before. when they became eligible to retire, even though no 443 S.W.2d 598, 600 (Tex. App.—Waco 1969, writ ref'd) (quoting Trammell, 101 S.W.2d at 1013 [458 S.W.3d 17] ); see also Jud v. City of San Antonio, 313 S.W.2d 903, 905 (Tex. Civ. App.—Eastland 1958, writ separation from service occurred under Article ref'd) (overruling “appellant's contention that he 6243h, as interpreted by the pension board. has a vested right in contributions to the pension Trammell, however, does not support the fund”). The same is true here. Accordingly, we Petitioners' contention that their retirement conclude that Gonzalez, Robles, and Pilgrim lack interests became fixed at the time of their a vested property right in their pension-fund eligibility for retirement. In fact, Trammell does contributions. the opposite, expressly holding that the plaintiff, who had already retired and had actually been Because the Petitioners have no vested rights in receiving pension benefits, had no vested right in the retirement benefits and pension-plan future installments of the same. Applying contributions at issue, we hold their pleadings Trammell 's “direct holding,” we conclude that conclusively negate the existence of subject- Klumb, McClelland, and Montejano have no matter jurisdiction over their constitutional vested property right in the retirement benefits at claims. issue. III. Conclusion With regard to the remaining constitutional claims, we observed in Trammell that “[i]t is well The Petitioners and the City failed to plead settled that the mere circumstance that a part of a actionable ultra vires and constitutional claims pension fund is made up by deductions from the against HMEPS and the Trustees. Subject-matter agreed compensation of employees does not in jurisdiction over those claims is therefore lacking itself give the pensioner a vested right in the fund, as a matter of law. We therefore affirm the court and does not make it any less a public fund of appeals' judgment. subject to the control of the Legislature.”101 S.W.2d at 1012–13. In Devon v. City of San -------- Antonio, we relied on Trammell in declining to Notes: recognize an employee's claimed interest in contributions to a municipal pension fund even 1 Presently, only the City of Houston meets Article though those contributions had been withheld 6243h's population threshold. from his wages. We explained there that 2 Relatedly, the Petitioners and the City complain

[t]he deductions withheld from [the that the court of appeals erroneously affirmed the employee's] wages and paid into the exclusion of affidavit evidence pertaining to the pension fund never belonged to Trustees' subjective intent to amend the him, but remained public money definition of “employee.” With respect to the ultra used for a public purpose. They vires claims, the threshold jurisdictional issue were not first segregated from the boils down to whether the pension board public funds so as to become [the articulated an interpretation of a statutory term Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015)

or altered it. This is a matter of statutory by the board does not so clearly conflict with the construction, which is determined as a matter of statute as to be ultra vires. law considering the statute's plain language. See, 5 Although we are precluded from opining on the e.g., State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). Consequently, evidence of the Trustees' accuracy or reasonableness vel non of the pension subjective intent is irrelevant. board's interpretation of the statute, we observe parenthetically that the statute provides a list of 3 The Petitioners and the City also allege that the ineligible employees to whom the term pension board's definition of “employee” is ultra “employee” might otherwise apply and, in doing vires because it does not comply with section so, suggests that the term is amenable to more 401(a) of the Internal Revenue Code (IRC), as precise articulation. See Tex. Rev. Civ. Stat. Ann. required by section 2(x)(2) of Article 6243h. See Art. 6243h, § 4. The City has also acknowledged Tex. Rev. Civ. Stat. Ann. Art. 6243h, § 2(x)(2). that terms used in the statute may be susceptible This argument, which derives support largely to more than one meaning and that the board has from their interpretation of a notice of “proposed discretion to determine the meaning of those rulemaking” the Internal Revenue Service (IRS) words. In multiple “meet and confer” agreements, issued in November 2011, merits little analysis. the City agreed that all words used in those See 76 FR 69172–01, 69173 & 69184–86 (2011) agreements, which included the word “employee,” (stating that key components of the term would have the same meaning provided in Article “governmental plan” in section 414(d) of the IRC 6243h “as determined by the Board” unless are undefined, observing that no regulations specially defined in the agreement. interpreting that provision exist, and proposing a 6 Another remedy available to aggrieved parties is “facts and circumstances” balancing test to define an entity's status as an “agency or instrumentality using the elective process to alter HMEPS's of a State or political subdivision of a State” for governing body. See Tex. Rev. Civ. Stat. Ann. Art. purposes of that section). To date the proposed 6243h, § 2(c) -(d) ; July 2011 MCA § 4. regulations and interpretive guidance have not 7 Although the Legislature has waived a local been adopted by the IRS. Even assuming the governmental entity's sovereign immunity to suit Petitioners and the City have correctly interpreted for contracts for goods or services, the waiver the “proposed rulemaking,” an ultra vires claim does not apply here because the meet-and-confer cannot be premised on an alleged conflict with a agreement is not a contract for goods or services. regulatory scheme that has never been enacted. See Zachry Constr. Corp. v. Port of Houston 4 By way of example, the Petitioners complain Auth. of Harris Cnty . , 449 S.W.3d 98, 106 (Tex. about the board's definition of employee to the 2014). extent it includes “a full-time employee of a Texas 8 Federal equal-protection cases are instructive local government corporation ... controlled by the with regard to equal-protection challenges under City” and “employees of any entity controlled, the Texas Constitution. See First Am. Title Ins. directly or indirectly” by the City. That definition Co. v. Combs, 258 S.W.3d 627, 638 (Tex. 2008). is not inherently inconsistent with the common understanding of the term “employee” as one who 9 Petitioners contend that “the refusal to pay “works in the service of another person (the earned pensions to eligible former employees or employer) under an express or implied contract of insisting that former employees pay into a hire, under which the employer has the right to pension fund on which they cannot claim a control the details of work performance.” Black's pension cannot be rationally related to preserving Law Dictionary639 (10th ed. 2014). Thus, reading a pension fund which has as its purpose to the terms that comprise the statutory definition of provide pensions for eligible former employees.” “employee” through the control prism articulated This argument presupposes eligibility and separation from service, which are matters Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015)

reserved to the board's exclusive determination. It is also based on a faulty premise. The pension fund does not have a singular purpose of paying benefits as each member becomes eligible; rather, its principal purpose is to administer the fund for the greatest benefit of all members. That purpose is imperiled if the work force becomes insufficient to subsidize the pension fund for current or future retirees.

10 A different scenario might be presented if article XVI, section 66 of the Texas Constitution were applicable. That constitutional provision, which was added by amendment in 2003, expressly protects benefits under certain retirement systems from being reduced or otherwise impaired.See Tex. Const. Art.XVI, § 66. The guarantees afforded by section 66 are not implicated here because, by a three-to-one margin, City of Houston voters opted to exercise an exemption authorized by that amendment. See id. § 66 (h).

-------- Montgomery County v. Park, 246 S.W.3d 610 (Tex. 2007)

246 S.W.3d 610 likely to deter a reasonable, similarly situated MONTGOMERY COUNTY, Texas, employee from reporting a violation of the law. Petitioner, See Burlington N. & Santa Fe Ry. Co. v. White, v. 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 David PARK, Respondent. (2006). Because we conclude that David Park did No. 05-1023. not suffer an adverse personnel action, we reverse Supreme Court of Texas. the court of appeals' judgment and render Argued March 20, 2007. judgment for Montgomery County. Decided November 30, 2007. I [246 S.W.3d 611] Background

John J. Hightower, Brian J. Begle, Patricia L. Respondent David Park, a patrol lieutenant Hayden, Scott Bounds, Olson & Olson, L.L.P., with the Montgomery County Sheriff's Houston, TX, for Petitioner. Department, also served as the security coordinator for Montgomery County convention Charles B. Frye, Lindeman, Alvarado & Frye, center events. While Montgomery County owns P.C., Houston, TX, for Respondent. the convention center, many activities there are privately sponsored. As security coordinator for [246 S.W.3d 612] these private events, Park received event sheets from the convention center's director, Don Ramon G. Viada III, Abrams Scott & Bickley, Carpenter, and arranged the hiring of off-duty L.L.P., Houston, TX, for Amicus Curiae Texas deputies to provide security. Park conducted Association of School Boards Legal Assistance these activities from his office in the sheriff's Fund. department during regular business hours. He received no additional compensation from either Scott Houston, Texas Municipal League, the County or the convention center for Austin, TX, for Amicus Curiae the Texas coordinating security for these private events. Municipal League and the Texas City Attorneys Assoc. In the spring of 2002, during a meeting Park attended with County Commissioner Ed Rinehart Ben Taylor, Fulbright & Jaworski L.L.P., and others, Rinehart allegedly spoke in graphic Dallas, TX, for Amicus Curiae Zachry sexual terms about Park's administrative assistant Construction Corporation. and another administrative assistant. Park informed his administrative assistant of Chief Justice JEFFERSON delivered the Rinehart's remarks, and another meeting opinion of the Court. attendee informed the other administrative assistant of the same. The two assistants then The Texas Whistleblower Act prohibits state relayed numerous instances of Rinehart's alleged and local government employers from taking sexual harassment that occurred over the adverse personnel actions against employees who, preceding months. Park reported Rinehart's in good faith, report violations of law to an remark, as well as the administrative assistants' appropriate law enforcement authority. TEX. accounts, to the GOV'T CODE §§ 554.001-554.010.1 We must determine what qualifies as an "adverse" [246 S.W.3d 613] personnel action, as the Act provides no definition. See id. § 554.001. We hold that for a sheriff. The County then undertook an personnel action to be adverse within the investigation. In the midst of that investigation, meaning of the Act, it must be material, and thus Rinehart allegedly ordered Carpenter to relieve Montgomery County v. Park, 246 S.W.3d 610 (Tex. 2007)

Park of his security coordination duties. Those (2) investigate or prosecute a violation of duties were transferred first to the constable's criminal law. office and then rotated on a monthly basis between the sheriff's and constable's offices. TEX. GOV'T CODE § 554.002. While the Act defines a "personnel action" as "an action that On October 30, 2002, Park sued Montgomery affects a public employee's compensation, County, alleging that the County violated the promotion, demotion, transfer, work assignment, Whistleblower Act by reassigning the security or performance evaluation," it does not define coordinator duties in retaliation for Park's report "adverse," id. § 554.001(3), and we have not of Rinehart's comments. The County filed a plea previously had occasion to address the issue.4 to the jurisdiction and motion for summary judgment, raising no evidence claims and [246 S.W.3d 614] asserting that Park's whistleblower claim failed as a matter of law.2 The trial court granted the Defining "adverse" in this context—and thus County's motion for summary judgment, and setting the level of protection provided by the Park appealed. Whistleblower Act—requires a careful balancing. By protecting state and local government The court of appeals reversed and remanded, employees who in good faith report violations of holding that Montgomery County was not entitled the law, the Act encourages reporting and thus to summary judgment on any of the theories endeavors to reduce unlawful conduct by advanced. ___ Ark. App. ___, ___ S.W.3d ___, government entities and employees. Requiring 2005 WL 2667488. We granted Montgomery too high a level of adversity would defeat this County's petition for review.3 50 Tex. Sup.Ct. J. important purpose. Conversely, setting the 218 (Dec. 15, 2006). standard too low could, as Montgomery County and amici curiae warn, saddle the public with the II cost of defending against unmeritorious claims— Discussion in terms of litigation expenses and in chilling innocuous personnel actions that an employee The Texas Whistleblower Act bars state and may perceive as subjectively adverse. local governments from retaliating against public employees who report violations of law: The United States Supreme Court recently confronted a similar issue, when it determined (a) A state or local governmental entity may how serious the harm from an allegedly not suspend or terminate the employment of, or retaliatory action must be to sustain a claim take other adverse personnel action against, a under the anti-retaliation provision of Title VII of public employee who in good faith reports a the Civil Rights Act of 1964, 42 U.S.C. § 2000e- violation of law by the employing governmental 3(a). Burlington N. & Santa Fe Ry. Co. v. White, entity or another public employee to an 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 appropriate law enforcement authority. (2006). Noting the importance of "separat[ing] significant from trivial harms"5 and of "avoid[ing] (b) In this section, a report is made to an the uncertainties and unfair discrepancies that appropriate law enforcement authority if the can plague a judicial effort to determine a authority is a part of a state or local governmental plaintiff's unusual subjective feelings," the Court entity or of the federal government that the crafted an objective materiality standard: "a employee in good faith believes is authorized to: plaintiff must show that a reasonable employee would have found the challenged action (1) regulate under or enforce the law alleged materially adverse, which in this context means it to be violated in the report; or might well have dissuaded a reasonable worker from making or supporting a charge of Montgomery County v. Park, 246 S.W.3d 610 (Tex. 2007)

discrimination." Id. at ___, 126 S.Ct. at 2415 the Act, we must now determine whether there is (citations and internal quotation marks omitted). evidence that Park suffered such an action here. While we take as true all evidence favorable to The anti-retaliation provision of Title VII and Park, indulging every reasonable inference and the Whistleblower Act serve similar purposes, and resolving any doubts in his favor, Provident Life we think it is appropriate to require plaintiffs to & Accident Insurance Co. v. Knott, 128 S.W.3d show objective, material harm under both. We 211, 215 (Tex.2003), it is clear from the record therefore adopt the Burlington standard with that the changes to Park's security coordinator appropriate modifications. We hold that a responsibilities do not constitute an adverse personnel action is adverse within the meaning of personnel decision within the meaning of the the Whistleblower Act if it would be likely to Whistleblower Act. dissuade a reasonable, similarly situated worker from making a report under the Act. This It is conceivable that, in some instances, the objective test strikes an appropriate balance ability to assign extra jobs could be of such between the need to shield whistleblowers (and importance to a law enforcement officer that the thereby encourage the reporting of governmental loss of this authority may be materially adverse, lawbreaking) and the need to protect government but the Burlington standard must be applied to employers from baseless suits, and, in addition, the circumstances presented. See Burlington, 548 provides lower courts with a judicially U.S. at ___, 126 S.Ct. at 2416 ("An act that would manageable standard. Burlington's materiality be immaterial in some situations is material in requirement is calibrated to allow claims of others." (citations and internal quotation marks retaliatory actions "likely to deter" reporting of omitted)). Park does not argue that the loss of his governmental violations of the law,6 but to weed security coordination responsibilities affected his out "petty slights [and] minor annoyances." Id. prestige, opportunity for advancement in the Likewise, the "similarly situated, reasonable department, or the difficulty of his work employee" element bars conditions.8 Further, the challenged action neither reduced Park's pay for his core job duties [246 S.W.3d 615] nor generally precluded him from obtaining outside employment. Because the effects of a trivial claims arising from personnel actions challenged action must be considered as a whole asserted to be adverse due to a "plaintiff's unusual and in light of all the circumstances, though, the subjective feelings" while retaining enough presence or absence of any one of these factors is flexibility to allow claims arising from the not dispositive, and Park does argue that as "particular circumstances" of a challenged action. security coordinator he had the ability to assign Id. at ___, 126 S.Ct. at 2415 (noting that "an act himself extra jobs at the convention center events, that would be immaterial in some situations is and thus that the bimonthly transfer of those material in others" and that, for example, "[a] duties adversely affected his compensation. There schedule change in an employee's work schedule is, however, no evidence that losing the first may make little difference to many workers, but choice of extra jobs at the convention center may matter enormously to a young mother with actually reduced Park's earnings. school age children" (citations and internal quotation marks omitted)).7 Park received no extra salary as security coordinator, and he has not shown that the Whether a challenged action is adverse position allowed him to work more extra jobs within the meaning of the Act is generally a than he would have without it. Had extra jobs question of law, and while the fact finder must been scarce, the ability to control one source of decide disputed issues of predicate fact, there are them might have been the difference between no such issues here. Thus, having articulated the getting extra standard for an adverse personnel action under Montgomery County v. Park, 246 S.W.3d 610 (Tex. 2007)

[246 S.W.3d 616] HEALTH & SAFETY CODE § 242.133(b) (protecting nursing home workers who report the work and not. Here, however, even after losing abuse of home residents); see also Ed Rachal the first choice of convention center jobs, Park Found. v. D'Unger, 207 S.W.3d 330, 331 assumed that he would be able to find outside (Tex.2006) (noting the Legislature's decision not work if he wished. There is, then, no evidence that to enact a single, comprehensive whistleblower the ability to assign himself convention center statute); Austin v. HealthTrust, Inc.—The Hosp. jobs actually increased Park's access to extra work Co., 967 S.W.2d 400, 402 (Tex. 1998) (detailing and, thus, indirectly, his compensation.9 Finally, the various whistleblower statutes). We refer to we note that the loss of Park's coordinating duties the particular whistleblower statute which stands in stark contrast to the reassignment from protects public employees from government forklift operator to track laborer and unpaid retaliation as "the Whistleblower Act" or "the thirty-seven day suspension, albeit with Act." TEX. GOV'T CODE §§ 554.001-554.010. subsequent back pay awarded through internal grievance procedures, suffered by the 2. In its motion for summary judgment, the complaining worker in Burlington. Burlington, County also asserted that Park's claim failed 548 U.S. at ___, 126 S.Ct. at 2416. Therefore, because: (1) it was barred due to governmental applying the objective standard we announce immunity; (2) there was no evidence that the today, we conclude that Park's loss of the first alleged violation was committed by a public choice of convention center jobs would not, as a employee or employing governmental entity; and matter of law, be likely to deter a similarly (3) there was no evidence that Park reported a situated, reasonable employee from reporting a violation of law to an appropriate law violation of the law, and was thus not materially enforcement official. Because the Whistleblower adverse. Act contains a specific waiver of immunity, Park's claim is not barred. TEX. GOV'T CODE § III 554.0035. In light of our holding that Park did not Conclusion suffer an adverse personnel action within the meaning of the Act, we do not reach Montgomery Because we hold that Montgomery County County's remaining issues. did not violate the Whistleblower Act as a matter of law, the County is entitled to judgment. See 3. The Texas Municipal League and Texas City State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d Attorneys Association, the Texas Association of 374, 380 (Tex.1993). We reverse the court of School Boards Legal Assistance Fund, and Zachry appeals' judgment and render judgment for Construction Corporation and H.B. Zachry Montgomery County. TEX.R.APP. P. 60.2(c). Company submitted amicus curiae briefs.

--------------- 4. The Legislature substituted the phrase "take other adverse personnel action" for "discriminate" Notes: as part of a 1995 amendment to the Act. Act of May 25, 1995, 74th Leg., R.S., ch. 721, § 2, 1995 1. Instead of creating a general whistleblower law, Tex. Gen. Laws 3812. the Legislature enacted several employee-specific whistleblower statutes. See, e.g., TEX. AGRIC. 5. As the Court notes, "[a]n employee's decision to CODE § 125.013(b) (protecting agricultural report discriminatory behavior cannot immunize laborers from retaliation for reporting violations that employee from those petty slights or minor under the Agricultural Hazard Communication annoyances that often take place at work and that Act); TEX. GOV'T CODE § 554.002(a) (protecting all employees experience." Id. at ___, 126 S.Ct. at public employees who report government 2415. The same is true of a government violations of the law from retaliation); TEX. employee's decision to report a violation of law under the Whistleblower Act. Montgomery County v. Park, 246 S.W.3d 610 (Tex. 2007)

6. We note that the challenged personnel action outside employment — assuming without need not have likely dissuaded a reasonable deciding that it can, the loss is nonetheless not employee from making the report at issue in a materially adverse. Although Park may no longer particular case, but rather any report covered by be able to guarantee himself extra jobs that he the Whistleblower Act. To interpret the standard personally finds particularly desirable, purely otherwise would lead to the odd result that the subjective adversity does not satisfy the more serious the violation alleged in the report Burlington standard, and there is no evidence (and thus the greater the impetus to report), the that Park has lost access to objectively equivalent more severe the retaliatory action an employer extra work. could engage in without giving rise to a claim under the Act. See Burlington, 548 U.S. at ___, --------------- 126 S.Ct. at 2415; see also id. at ___, 126 S.Ct. at 2420 (Alito, J., concurring)(arguing that affording complaining employees a degree of protection inverse to the severity of the underlying discrimination would be "perverse").

7. For this reason, we have added "similarly situated" to the language used in Burlington to emphasize that while an employee's subjective feelings are not considered, the objective circumstances of his or her case must be taken into account.

8. The summary judgment evidence included the following colloquy regarding the benefits of the security coordinator position from Park's deposition:

[Montgomery County's Attorney]: Let me ask you one more time to make sure I understand. The only benefit that you consider yourself — extra benefit you consider yourself to have had from being the coordinator of security was the right to take first pick of security jobs at the convention center?

[Park]: That would be accurate, yes.

9. Because we hold that Park has not demonstrated a loss of income as a result of the removal of his security coordinator duties, we do not reach the question of whether Park's earnings as a security officer for third parties constitute compensation within the meaning of the Whistleblower Act. Similarly, although Park also alleges that losing the first choice of convention center jobs adversely affected his work assignment, we do not address whether, for the purposes of the Act, work assignment can include Scott v. Godwin, 147 S.W.3d 609 (Tex. App. 2004)

147 S.W.3d 609 he was responsible for supervising the training of Wayne SCOTT and Gary Johnson, over 125,000 correctional officers. Appellants, v. In the Spring of 1999, Gary Johnson, the Charles GODWIN, Appellee. Director of TDCJ-ID, Edward Owens, the Deputy No. 13-02-096-CV. Director for Support Services and Godwin's Court of Appeals of Texas, Corpus Christi- immediate supervisor, and Godwin met to discuss Edinburg. the creation of a committee to overhaul the TDCJ- August 31, 2004. ID Training Department after: (1) the TDCJ-ID administration determined that the morale in the [147 S.W.3d 613] Training Department was low; (2) the Training Department had difficulty recruiting training Demetri Anastasiadis, Austin, for Appellants. sergeants; (3) an internal audit concluded that the Training Academy underutilized its existing staff Kathleen L. Day, Corpus Christi, for Appellee. and recommended a job staffing analysis; and (4) Godwin complained that he did not have enough Before Justices HINOJOSA, YAÑEZ, and training staff. The committee, comprised of CASTILLO. people from a number of different departments within the agency, examined ways to enhance OPINION training to improve the safety of staff, offenders, and the public. The committee issued a draft Opinion by Justice YAÑEZ. report that summarized its findings and scheduled a meeting for January 12, 2000 to Appellants, Wayne Scott and Gary Johnson, finalize recommendations to be submitted to the bring this interlocutory appeal from the trial TDCJ-ID administration for review, approval, and court's orders denying their motions for summary possible implementation. judgment. Charles Godwin, appellee and cross- appellant, filed suit against appellants in their In December 1999, correctional officer Daniel individual capacities alleging First Amendment Nagle was killed during an inmate takeover at the violations under 42 U.S.C. § 1983, and against McConnell Unit in Beeville, Texas. In response to cross-appellee, the Texas Department of Criminal this incident, TDCJ officials advised the public Justice ("TDCJ"), alleging violation of the that there was "no threat to security" and "no Whistleblower Act. Appellants each moved for threat to officer safety and offender safety." summary judgment, contending they were Godwin strongly disagreed with these statements protected by qualified immunity. TDCJ filed a and wrote a letter to then Governor George W. plea to the jurisdiction Bush on January 12, 2000, communicating his belief that the incidents at the McConnell Unit [147 S.W.3d 614] were the direct result of dangerous trends in in the trial court. The trial court denied both security over the past several years, as a result of motions for summary judgment and sustained misuse of public funds, malfeasance, and TDCJ's plea to the jurisdiction. We affirm in part corruption. On January 14, 2000, the Corpus and reverse and remand in part. Christi Caller Times printed a story with the headline "Prison Officials Should Resign, A. BACKGROUND Training Chief Says." In this article, Godwin called for the resignation of TDCJ's Charles Godwin was the Director of Training administrators and the members of the Texas for the Institutional Division of the Texas Board of Criminal Justice. On February 7, 2000, Department of Criminal Justice ("TDCJ-ID") Godwin wrote a letter reiterating his complaints from July 1994 to March 2000. In this capacity, to Ronnie Earle, the Travis County District Scott v. Godwin, 147 S.W.3d 609 (Tex. App. 2004)

Attorney, and sent copies of this letter to the State summary judgment that is based on an assertion Auditor, United States District Judge William of immunity by an individual who is an officer or Wayne Justice, and Godwin's attorney. On employee of the state or a political subdivision of February 28, 2000, Godwin sent a letter to the the state. TEX. CIV. PRAC. & REM.CODE ANN. § members of the Texas Legislature outlining his 51.014(a)(5) (Vernon Supp.2004). Section concerns for correctional officer safety. 51.014(a)(8) allows for an appeal from an order that grants or denies a plea to the jurisdiction by a In March 2000, Mac Stringfellow, the governmental unit. TEX. CIV. PRAC. & Chairman of the Texas Board of Criminal Justice, REM.CODE ANN. § 51.014(a)(8) (Vernon requested a performance review of Godwin from Supp.2004). Thus, because appellants, TDCJ Wayne Scott, TDCJ's Executive Director. On employees, base their motion for summary March 10, 2000, Scott, based on the judgment on immunity, and the TDCJ is a recommendations of Gary Johnson and Edward governmental unit, we have jurisdiction over this Owens, transferred Godwin from his position as interlocutory appeal. See Mission Consol. Indep. Director of Training to a newly created position of Sch. Dist. v. Flores, 39 S.W.3d 674, 675 Director of the Job Development Network at (Tex.App.-Corpus Christi 2001, no pet.); City of TDCJ, with no loss of pay or benefits. Harlingen v. Vega, 951 S.W.2d 25, 27 (Tex.App.- Corpus Christi 1997, no writ). Godwin filed suit against appellants in their individual capacities, alleging First Amendment C. SUMMARY JUDGMENT BASED ON violations under 42 U.S.C. § 1983. Appellants QUALIFIED IMMUNITY each moved for summary judgment, contending they were protected by qualified immunity. The Summary judgment for a defendant is proper trial court denied both motions. Godwin also filed only when the defendant negates at least one suit against the TDCJ alleging violation element of each of the plaintiff's theories of recovery, Science Spectrum, Inc. v. Martinez, 941 [147 S.W.3d 615] S.W.2d 910, 911 (Tex.1997), or pleads and conclusively establishes each element of an of the Texas Whistleblower Act. TDCJ filed a Plea affirmative defense. City of Houston v. Clear to the Jurisdiction which the trial court sustained. Creek Basin Auth., 589 S.W.2d 671, 678 From these orders, both appellants and Godwin (Tex.1979). When reviewing a summary appeal. judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable B. JURISDICTION inference in the nonmovant's favor. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). Generally, we do not have jurisdiction over appeals from interlocutory orders because under When federal claims are litigated in state Texas procedure, appeals are allowed only from court, litigants are entitled to the full benefit of final orders or judgments. Jack B. Anglin Co. v. federal law. Lewis v. Guerrero, 978 S.W.2d 689, Tipps, 842 S.W.2d 266, 272 (Tex.1992). Unless a 692 (Tex.App.-Corpus Christi 1998, no pet.). statute specifically authorizes an interlocutory appeal, Texas appellate courts have jurisdiction The question of qualified immunity must be only over final judgments. Cherokee Water Co. v. addressed as a threshold issue because this issue Ross, 698 S.W.2d 363, 365 (Tex.1985) determines a defendant's immunity from suit, (orig.proceeding). that is, his or her ability to avoid a trial altogether, rather than merely his or her immunity from Section 51.014(a)(5) of the Texas Civil damages. Brewer v. Wilkinson, 3 F.3d 816, 820 Practice and Remedies Code expressly allows for (5th Cir.1993). Qualified immunity is an an appeal from an order that denies a motion for immunity from suit available to government Scott v. Godwin, 147 S.W.3d 609 (Tex. App. 2004)

officials sued in their individual capacities under It is undisputed that each was a governmental section 1983.1 Scott v. Britton, 16 S.W.3d 173, 180 official. The summary judgment evidence (Tex.App.-Houston [1st Dist.] 2000, no pet.); established that Johnson's decision to Lewis, 978 S.W.2d at 693; see also Leatherman v. recommend a transfer and Scott's decision to Tarrant County Narcotics Intelligence & transfer Godwin involved the exercise of Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. discretion. As such, the burden shifts to Godwin 1160, 122 L.Ed.2d 517 (1993). Government to rebut Scott and Johnson's qualified immunity officials performing defense.

[147 S.W.3d 616] 1. Clearly Established Right

discretionary functions have qualified immunity Our first inquiry is whether the law was from liability for actions that do not violate clearly clearly established in 2000 that transferring or established statutory or constitutional rights of demoting an employee following the publication which a reasonable person would have known. of allegations involving official misconduct would Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. violate the employee's First Amendment rights to 1692, 143 L.Ed.2d 818 (1999); Scott, 16 S.W.3d at free speech." `Clearly established' for purposes of 180. Once the defendant official pleads good faith qualified immunity means that [t]he contours of and demonstrates that the challenged actions the right must be sufficiently clear that a occurred in the context of discretionary authority, reasonable official would understand that what he the burden shifts to the plaintiff to rebut this is doing violates that right." United States v. defense. See Carrera v. Yepez, 6 S.W.3d 654, 661 Lanier, 520 U.S. 259, 270, 117 S.Ct. 1219, 137 (Tex.App.-El Paso 1999, pet. dism'd w.o.j.); see L.Ed.2d 432 (1997). The law in force at the time of also Haynes v. City of Beaumont, 35 S.W.3d 166, the violation must outline the contours of the 176 (Tex.App.-Texarkana 2000, no pet.). rights allegedly violated, or else qualified immunity would give public officials little When a defendant has moved for summary protection. See Anderson v. Creighton, 483 U.S. judgment based on qualified immunity, a plaintiff 635, 638-40, 107 S.Ct. 3034, 97 L.Ed.2d 523 must present concrete evidence to support the (1987). But, "this is not to say that an official allegation of retaliation to survive the motion. action is protected by qualified immunity unless Gerhart v. Hayes, 201 F.3d 646, 650 (5th the very action in question has previously been Cir.2000). In conducting a qualified immunity held unlawful." Id. at 640. analysis, the reviewing court first determines whether the plaintiff has alleged a violation of a An employee's First Amendment retaliation clearly established constitutional right. See claim under 42 U.S.C. § 1983 has four elements: Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. (1) an adverse employment action; (2) speech 1789, 114 L.Ed.2d 277 (1991); Wooley v. City of involving a matter of public concern; (3) the Baton Rouge, 211 F.3d 913, 919 (5th Cir.2000). If employee's interest in commenting on matters of the court determines that the plaintiff has alleged public concern outweighs the employer's interest a violation of a clearly established constitutional in efficiency; and (4) the speech must have right, the next step is to determine whether the motivated the adverse employment action. Serna official's conduct was objectively reasonable at the v. City of San Antonio, 244 F.3d 479, 482 (5th time of the incident. Sanchez v. Swyden, 139 F.3d Cir.2001). 464, 467 (5th Cir.1998); Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir.1994). a. Adverse Employment Action

In the instant case, both Scott and Johnson A transfer, even without an accompanying cut asserted the defense of qualified immunity in in pay or other tangible their respective motions for summary judgment. Scott v. Godwin, 147 S.W.3d 609 (Tex. App. 2004)

[147 S.W.3d 617] preferences and subjective perception that a demotion has occurred is not enough. See benefits, may constitute an adverse employment Forsyth, 91 F.3d at 774. The employee must show action under 42 U.S.C. § 1983. The Fifth Circuit the transfer makes the job "objectively worse." has held that "[i]t is now well established that, for See Serna, 244 F.3d at 485. purposes of a § 1983 retaliation claim, an adverse employment action can include a transfer, In the present case, Godwin's summary because it may serve as a demotion." Sharp v. judgment evidence revealed that the position of City of Houston, 164 F.3d 923, 933 (5th Cir.1999). Director of Training for the TDCJ-ID was a more According to Fifth Circuit caselaw, "to be responsible, prestigious, and interesting position equivalent to a demotion, a transfer need not than the Director of the Job Development result in a decrease in pay, title, or grade; it can be Network. The Director of the Job Development a demotion if the new position proves objectively Network is not involved in personnel decisions, worse—such as being less prestigious or less such as the decision to hire, promote, counsel, interesting or providing less room for and discipline employees. As the Director of advancement." Id. (citing Forsyth v. City of Training, Godwin performed all these functions. Dallas, 91 F.3d 769, 774 (5th Cir.1996); Click v. Godwin no longer has authority to issue internal Copeland, 970 F.2d 106, 109 (5th Cir.1992)). policies and procedures. The Director of Training has final approval over the Training Department's In Sharp, the court held that the jury was Standard Operating Procedures Manual. The entitled to find that transferring a police officer Director of Training also has varied challenges from the "elite" mounted patrol division to a each day, including overseeing multiple training teaching position at the academy was an adverse operations in multiple locations, as well as employment action. Sharp, 164 F.3d at 933. directing administrative support, curriculum Although the transfer did not involve a decrease development, and human resources for the in pay, title, or grade, it could be viewed, department. The Director of the Job Development objectively, as a demotion because the academy Network develops action plans to identify position was "less prestigious" than the position employment opportunities for ex-offenders. We in the "elite" mounted patrol division. Id. In conclude the summary judgment evidence, when Forsyth, transferring police officers from viewed objectively, raises a material issue of fact positions in the intelligence unit to night patrol regarding whether appellants' actions in positions, with different duties involving less transferring Godwin constituted an adverse interesting work, less responsibility, and less employment action. prestige, was an adverse employment action in light of evidence that the department had b. Matter of Public Concern transferred officers to night patrol in the past as a form of discipline. Forsyth, 91 F.3d at 774. In Retaliation for an employee's speech is Click, transferring two deputy sheriffs from the actionable under Section 1983 county's law enforcement section to positions as jail guards could be considered adverse [147 S.W.3d 618] employment actions, in light of evidence that the jail guard positions were much less desirable. only if the speech addressed a matter of public Click, 970 F.2d at 110. concern. Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Whether an This line of cases does not support the employee's speech addresses a matter of public proposition that every job transfer without a concern must be determined by the content, form, decrease in salary is necessarily a demotion, and context of a given statement, as revealed by simply because it occurs following a plaintiff's the record as a whole. Id. at 147-48, 103 S.Ct. exercise of protected speech. A plaintiff's personal 1684. Whether Godwin spoke on a matter of Scott v. Godwin, 147 S.W.3d 609 (Tex. App. 2004)

public concern is a question of law. See Rankin v. In determining the right of a public employee McPherson, 483 U.S. 378, 386 n. 9, 107 S.Ct. to speak on matters of public concern, the 2891, 97 L.Ed.2d 315 (1987). interests that must be balanced are the interests of the employee, as a citizen, in commenting upon Exposure of official misconduct is generally matters of public concern and the interest of the of great consequence to the public. Branton v. State, as an employer, in promoting the efficiency City of Dallas, 272 F.3d 730, 740 (5th Cir.2001). of the public services it performs through its "There is perhaps no subset of `matters of public employees. Pickering v. Bd. of Educ., 391 U.S. concern' more important, for purposes of First 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In Amendment protection of speech of public First Amendment cases brought by public employees, than bringing official misconduct to employees, the governmental employer has a light." Id. legitimate interest in terminating employees whose criticisms intrude on workplace harmony Here, Godwin spoke in his capacity as a that tends to facilitate the efficient operation of citizen expressing concerns regarding the government functions. Warnock v. Pecos County, dangerous trends in security at prison facilities, as 116 F.3d 776, 781 (5th Cir.1997). a result of possible misuse of public funds and malfeasance. Godwin explained that the In weighing the value of protected speech dangerous shortage of correctional officers may against the employer's interest in efficiency, the be due, in part, to deliberate choices made by Fifth Circuit generally focuses on three factors: (1) TDCJ officials to allow vacant correctional officer whether the speech was likely to generate positions to remain unfilled, in order to use controversy and disruption; (2) whether the lapsed salary funds for other purposes. Godwin speech impeded the department's general spoke as an informed citizen at a time when this operation; and (3) whether the speech affected topic was receiving much media attention the working relationships necessary to the proper following the slaying of officer Nagle. Speech functioning of the administration. Id. at 780. made in the context of ongoing commentary and debate in the press is of concern to the public. [147 S.W.3d 619] Harris v. Victoria Indep. Sch.Dist., 168 F.3d 216, 222-23 (5th Cir.1999). By bringing to light alleged In the instant case, these factors weigh in wrongs and abuses by TDCJ officials, Godwin was favor of a conclusion that Godwin's interest in seeking to improve the quality and safety of the speaking on matters of public concern outweighs administration. Even though a public employee the TDCJ's interest in efficiency because any can make a single statement both as an employee negative impact that Godwin's speech could have and as a citizen, see Wilson v. UT Health Ctr., 973 had on the efficiency of the TDCJ was minimal. F.2d 1263, 1268-70 (5th Cir.1992), Godwin's The summary judgment evidence established no allegations do not overtly suggest only personal disruption of the training committee. No defense concerns for his job security. Godwin was not witness testified that Godwin's speech under any investigation with regard to officer undermined the TDCJ's operations. When asked safety at the detention centers following the death whether TDCJ continued to operate in a normal of officer Nagle. Thus, examining the content, fashion, appellant Scott stated, "TDCJ keeps on context, and form of Godwin's speech, we operating no matter what happens." Further, conclude it involves issues of concern to the Godwin's employment relationship with TDCJ is public. See Connick, 461 U.S. at 147-48, 103 S.Ct. not the kind of close working relationship which 1684. requires personal loyalty and confidence for proper functioning. See, e.g., Sheppard v. c. Employer's Interest in Efficiency Beerman, 317 F.3d 351, 355 (2d Cir.2003) (relationship between judge and law clerk). Scott v. Godwin, 147 S.W.3d 609 (Tex. App. 2004)

Thus, if the allegations of misconduct are actions against their employees for making true, such allegations are matters of public statements that relate to the public concern. concern and outweigh the government's interest Kennedy v. Tangipahoa Parish Library Bd. of in efficiency. See Teague v. City of Flower Control, 224 F.3d 359, 377 (5th Cir.2000); see Mound, 179 F.3d 377, 381 (5th Cir.1999); Connick, 461 U.S. at 142, 103 S.Ct. 1684. The Brawner v. City of Richardson, 855 F.2d 187, contours of the right are sufficiently clear that a 191-92 (5th Cir.1988) ("The disclosure of reasonable public official in March 2000 would misbehavior by public officials is a matter of have known that retaliating against an employee public interest and therefore deserves for exercising his First Amendment rights was constitutional protection, especially when it prohibited by law. See Lanier, 520 U.S. at 270, concerns the operation of a police department."); 117 S.Ct. 1219; see also Kinney v. Weaver, 301 see also Pickering, 391 U.S. at 568, 88 S.Ct. 1731 F.3d 253, 279 (5th Cir.2002). (enforcing code of silence is not legitimate interest because it does not promote efficiency of [147 S.W.3d 620] public services performed by government employees). 2. Legal Objectiveness

d. Protected Speech Motivated Adverse Action The objective reasonableness of the official's conduct is measured by the clearly established Godwin's allegations, if believed, support an right at the time of the incident. See Sanchez, 139 inference that appellants transferred him in F.3d at 467; Mangieri, 29 F.3d at 1016. Where retaliation for publicizing the alleged abuses. reasonable public officials could differ on the Godwin's summary judgment evidence presented lawfulness of the official's actions, the official is favorable employee evaluations. Godwin also entitled to qualified immunity. Johnston v. City of points out that he was not being investigated with Houston, 14 F.3d 1056, 1059 (5th Cir.1994). The regard to officer safety at the detention centers objective reasonableness of the public officials' following the death of officer Nagle. Whether an actions is a matter of law for the court to employee's protected conduct was a motivating determine; however, the underlying historical factor in an employer's decision to take action facts precipitating the alleged conduct are against the employee is a question of fact, material to reasonableness. Mangieri, 29 F.3d at ordinarily rendering summary judgment 1015-16. inappropriate. Branton, 272 F.3d at 739; Click, 970 F.2d at 113. Here, Godwin has presented a fact issue sufficient to survive summary judgment as to Thus, indulging every inference in Godwin's whether appellants acted in an objectively favor as the nonmovant, we conclude Godwin's reasonable manner in light of Godwin's clearly pleadings and summary judgment evidence allege established rights. As discussed above, we have a violation of a clearly established constitutional concluded that issues of fact remain regarding right. See Wooley, 211 F.3d at 919. Godwin has a whether appellants' action in transferring Godwin clearly established right to speak on matters of constituted an adverse employment action and public concern, see Denton v. Morgan, 136 F.3d whether appellants' action was motivated by 1038, 1042 (5th Cir.1998), on matters of public Godwin's exercise of his right to free speech. safety, see Thompson v. City of Starkville, 901 F.2d 456, 466 (5th Cir.1990), and on matters of Thus, viewing the facts presented in the light official misconduct, Branton, 272 F.3d at 740. most favorable to Godwin, we conclude he has Further, since 1983, government employers have alleged a violation of a clearly established right known that unless their interest in efficiency at and also raised fact issues as to whether the office outweighs the employee's interest in appellants acted in an objectively reasonable speaking, they cannot take adverse employment manner in light of Godwin's clearly established Scott v. Godwin, 147 S.W.3d 609 (Tex. App. 2004)

rights. Therefore, it follows that the trial court Town of Sunnyvale, 964 S.W.2d 922, 928 properly denied appellants' motions for summary (Tex.1998). In reviewing a trial court's ruling on a judgment based on qualified immunity. We plea overrule appellants' issues. Accordingly, we affirm the trial court's orders denying appellants' [147 S.W.3d 621] motions for summary judgment. to the jurisdiction, we do not look to the merits of D. PLEA TO THE JURISDICTION the plaintiff's case. Tex. Bd. of Pardons & Paroles v. Feinblatt, 82 S.W.3d 513, 517 (Tex.App.-Austin By his cross-appeal, Godwin generally 2002, pet. denied). Instead, we construe the contends the trial court erred in sustaining pleadings in favor of the plaintiff, look to the TDCJ's plea to the jurisdiction and dismissing his plaintiff's intent, and accept the pleadings' factual whistleblower claim. Specifically, Godwin alleges allegations as true. See County of Cameron v. he was employed by the State and his Brown, 80 S.W.3d 549, 555 (Tex.2002). employment was adversely affected because he Pleadings relevant to a review of a plea to the made a report of a violation of law, in good faith, jurisdiction include amended petitions and to an appropriate law enforcement authority. The responses filed in connection with the plea. Janik trial court sustained TDCJ's plea to the v. Lamar Consol. Indep. Sch. Dist., 961 S.W.2d jurisdiction on the basis that Godwin failed to 322, 324 (Tex.App.-Houston [1st Dist.] 1997, pet. report a violation of law to a proper law denied). We may also consider evidence necessary enforcement authority. to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 A plea to the jurisdiction challenges a court's (Tex.2000). authority to hear a case by alleging that the factual allegations in the plaintiff's pleadings, When a plaintiff fails to plead facts that when taken as true, fail to invoke the court's establish jurisdiction, but the petition does not jurisdiction. Bybee v. Fireman's Fund Ins. Co., affirmatively demonstrate incurable defects in 160 Tex. 429, 331 S.W.2d 910, 917 (1960). The jurisdiction, the issue is one of pleading plaintiff bears the burden of alleging facts sufficiency, and the plaintiff should be afforded affirmatively demonstrating the trial court's the opportunity to amend. Brown, 80 S.W.3d at jurisdiction to hear a case. Tex. Ass'n of Bus. v. 555. On the other hand, if the pleadings Tex. Air Control Bd., 852 S.W.2d 440, 446 affirmatively negate the existence of jurisdiction, (Tex.1993); Flores, 39 S.W.3d at 676. To then a plea to the jurisdiction may be granted successfully challenge at the pre-trial stage a trial without allowing the plaintiff an opportunity to court's subject-matter jurisdiction to hear a amend. Id. plaintiff's claim, the defendant must prove either that (1) the plaintiff's pleadings, taken as true, 2. Analysis affirmatively establish that the court does not have subject matter jurisdiction, or (2) the The Texas Whistleblower Act prohibits a state plaintiff has pleaded fraudulently or in bad faith or local governmental entity from suspending, with the purpose of conferring jurisdiction where, terminating, or taking other adverse personnel under the true facts, the court would not have it. action against a public employee who in good Flores, 39 S.W.3d at 676. faith reports a violation of law by the employing governmental entity or another public employee 1. Standard of Review to an appropriate law enforcement authority. Tex. Gov't Code Ann. § 554.002(a)(Vernon We review a trial court's ruling on a plea to Supp.2004). The Whistleblower Act is designed to the jurisdiction de novo because subject matter enhance openness in government and compel the jurisdiction is a question of law. See Mayhew v. government's compliance with the law by Scott v. Godwin, 147 S.W.3d 609 (Tex. App. 2004)

protecting those who inform authorities of William Wayne Justice and the State Auditor, wrongdoing. Castaneda v. Tex. Dep't of Godwin reiterated his concern about the Agriculture, 831 S.W.2d 501, 503 (Tex.App.- dangerous shortage of correctional officers and its Corpus Christi 1992, writ denied). Because the negative effect on existing officer safety. Whistleblower Act is remedial in nature, it should According to Godwin, "[a]vailable documentation be liberally construed to effect its purpose. Id. indicates the chronic, dangerous shortage of correctional officers may be due, in part, to The cause of action created by the deliberate choices made by TDCJ officials to allow Whistleblower Act is purely statutory. Thus, to vacant correctional officer positions to remain plead a claim under the Whistleblower Act, unfilled, in order to use lapsed salary funds for Godwin must allege the existence of each of the other purposes." Godwin explained that he following elements: (1) he is a public employee; believed the TDCJ administration was (2) he acted in good faith in making his report; (3) intentionally leaving correctional officer positions the report involved a violation of law; (4) the unfilled, in order to realize a substantial savings report was made to an appropriate law from unspent salary money each month. These enforcement authority; and (5) he suffered lapsed salary funds were then used for other retaliation as a result of making the report. See departmental needs, such as computer Tex. Gov't Code Ann. § 554.002(a) (Vernon enhancements and payments to counties for Supp.2004). housing state prisoners in county jails. This practice, according to Godwin, was a possible In his fourth amended petition, Godwin violation of the Ruiz Final Judgment.2 alleged he was a public employee, employed by the TDCJ, and was demoted within 90 days of Whether the reported incident was an actual reporting to the Governor, the Travis County violation of any law is not in issue. We are District Attorney, the State Auditor, and United mindful of our limited role here. Our task is not to States District Judge William Wayne Justice what determine whether the plaintiff ultimately wins or he believed in good faith to be violations of law. loses on judicial review; rather, this Court's task is The TDCJ contends Godwin did not report a to examine the facts pleaded and to determine violation of "law" to an "appropriate law whether those facts support jurisdiction in the enforcement authority." trial court. See Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 771 (Tex.App.-Houston In his letter to then Governor Bush dated [1st Dist.] 1999, pet. dism'd w.o.j.). January 12, 2000, Godwin sought to inform Governor Bush of what he believed to be Although an employee need not establish an dangerous trends in security in the Texas prison actual violation of law, there must be some law system. Godwin accused TDCJ's administration of prohibiting the complained of conduct to give rise deceiving both the Governor and the citizens of to a claim under the Whistleblower Act. Llanes v. Texas by indicating that there was no threat to Corpus Christi Indep. Sch. Dist., 64 S.W.3d 638, security in the prison system. According to 642 (Tex.App.-Corpus Christi 2001, pet. denied). Godwin, the TDCJ administration placed a low The Whistleblower Act defines "law" to mean: (1) priority on officer training and safety by failing to a state or federal statute, (2) an ordinance of a allocate sufficient resources to the Training local governmental entity, or (3) a rule adopted Department. under a statute or ordinance. Tex. Gov't Code Ann. § 554.001(1) (Vernon Supp. 2004). [147 S.W.3d 622] Moreover, this Court has interpreted the phrase "reports a violation of the law" to include "any By subsequent correspondence to the Travis disclosure of information regarding a public County District Attorney dated February 7, 2000, servant's employer tending to directly or which was copied to United States District Judge circumstantially prove the substance of a violation Scott v. Godwin, 147 S.W.3d 609 (Tex. App. 2004)

of criminal or civil law, the State or Federal E. CONCLUSION Constitution, statutes, administrative rules or regulations." Llanes, 64 S.W.3d at 642; We affirm the trial court's orders denying Castaneda, 831 S.W.2d at 503-04. appellants' motions for summary judgment, reverse the trial court's order sustaining TDCJ's Here, Godwin's report to the Travis County plea to the jurisdiction, and remand this cause to District Attorney centers on the possible violation the trial court for further proceedings consistent of the Ruiz Final Judgment, a judicial directive with this opinion. aimed solely at the TDCJ. The Ruiz Final Judgment required TDCJ to "employ sufficient --------------- trained security and non-security staff to provide for and maintain the security, control, custody, Notes: and supervision of prisoners, taking account of 1. Federal qualified immunity to section 1983 the security and custody levels for the prisoner claims is distinct from official immunity to state population and the design of [TDCJ]'s facilities." claims. See City of Harlingen v. Vega, 951 S.W.2d Considering this Court's construction of the 25, 32 (Tex.App.-Corpus Christi 1997, no writ); phrase "reports a violation of the law," and see also Robinett v. Carlisle, 928 S.W.2d 623, 625 liberally construing the definition of "law" to (Tex.App.-Fort Worth 1996, writ denied) (trial effect the remedial purpose of the Whistleblower court erred by applying state law analysis to Act, see Castaneda, 831 S.W.2d at 503, we section 1983 claim). conclude that the Ruiz Final Judgment is a law within the meaning of the Whistleblower Act. 2. Ruiz v. Johnson, 154 F.Supp.2d 975 (S.D.Tex. 2001). Civil Action No. H-78-987, filed in the Furthermore, a report is made to an United States District Court for the Southern appropriate law enforcement authority if the District of Texas, Houston Division. authority is a part of a state or local governmental entity or of the federal government ---------------

[147 S.W.3d 623]

that the employee in good faith believes is authorized to regulate under or enforce the law alleged to be violated in the report or investigate or prosecute a violation of criminal law. Tex. Gov't Code Ann. § 554.002(b) (Vernon Supp.2004). Judge Justice presided over proceedings resulting in the Ruiz Final Judgment. At the time Godwin sent him a copy of the report dated February 7, 2000, Judge Justice had oversight authority to enforce the Ruiz Final Judgment. Thus, we conclude Judge Justice is an appropriate law enforcement authority within the meaning of the Whistleblower Act.

Therefore, accepting the factual allegations in Godwin's pleadings as true, we conclude he has pleaded sufficient facts to support jurisdiction in the trial court. Accordingly, Godwin's cross- appeal is sustained. Skinny's, Inc. v. Hicks Bros. Const. Co. of Abilene, Inc., 602 S.W.2d 85 (Tex. Ct. App. 1980)

Page 85 general contractor for the sum of $12,546.00 plus prejudgment interest of $713.58 and attorney fees 602 S.W.2d 85 of $1,000.00; and judgment was rendered against 30 UCC Rep.Serv. 996 the owner for foreclosure of all fourteen SKINNY'S, INC. Mechanic's Liens. The owner appeals. We affirm. v. HICKS BROTHERS CONSTRUCTION The trial court made findings of fact which COMPANY OF ABILENE, INC. include the following: No. 5471. Court of Civil Appeals of Texas, Eastland. 3. On or about April 11, 1978, at Abilene, May 29, 1980. Taylor County, Texas, Plaintiff and Defendant entered into an oral contract whereby Plaintiff Page 87 agreed to furnish labor and materials for the construction of improvements upon properties W. K. Rutledge, Rutledge, Rutledge & owned by the Defendant. Connally, Abilene, for appellant. 4. Defendant agreed that Plaintiff was to be William Tippen and Barbara Rollins, paid for the actual cost of the labor used in, Bradbury & Tippen, Paul J. Harris and Lester O. subcontracts arranged for and supervised by Berg, Abilene, for appellee. Plaintiff, and materials purchased for the construction of said improvements and, in DICKENSON, Justice. addition thereto, 20% of the amount of that cost for contractor's services and overhead. The principal issues are the scope of an oral agreement and the sufficiency of proof as to the 5. On or about May 10, 1978 Plaintiff began to amounts due for labor and materials. procure and furnish labor, materials, and subcontractors pursuant to the agreement The general contractor, Hicks Brothers between the parties and continued performing in Construction Company of Abilene, Inc., sued the accordance with the agreement originally made owner, Skinny's, Inc., for labor and materials by the parties until on or about August 16, 1978 furnished plus "contractor's fees" equal to 20% of when the Defendant refused to pay for such the actual cost of labor and materials. Hicks services and asked the Plaintiff to discontinue Brothers also sought foreclosure of eleven work. Mechanic's Liens which had been filed in connection with the unpaid, disputed bills. The 6. Plaintiff periodically delivered statements owner filed a cross-action against the general to the Defendant showing the actual costs contractor, and a subcontractor, Binswanger incurred by Plaintiff, plus an amount equal to Glass Company, filed a petition in intervention, 20% of said actual costs. seeking payment from the general contractor in the sum of $12,546.00 plus attorney fees and also Page 88 seeking foreclosure on three of the owner's properties in connection with its Mechanic's 7. During the initial period of the Liens. Following a nonjury trial, judgment was performance of the contract, Defendant fully paid rendered for the general contractor against the the amount shown on the statements so delivered owner for the sum of $176,761.71 plus by Plaintiff which included the contractor's prejudgment interest of $10,054.76 and attorney services and overhead to that time. On or about fees of $24,000.00; the owner was given an offset August 16, 1978, the Defendant ceased all of $2,893.00 on its cross-action; the payment and has since refused to make any subcontractor was awarded judgment against the payment as demanded by Plaintiff. Skinny's, Inc. v. Hicks Bros. Const. Co. of Abilene, Inc., 602 S.W.2d 85 (Tex. Ct. App. 1980)

8. The improvements that Plaintiff agreed to not be disturbed on appeal unless they are against construct consisted of small grocery stores, the great weight of the evidence. See 4 McDonald, generally known as convenience stores, together Texas Civil Practice § 16.05 (rev.1971). In testing with attendant retail gasoline pumping facilities. the court's findings on the complaint that there is Additionally, Plaintiff was to construct two no evidence to support them, we will consider storage buildings. only the evidence and inferences which support the findings, disregarding all evidence to the 9. For use in the construction contract, contrary. Brown v. Frontier Theatres, Inc., 369 Plaintiff purchased twenty prefabricated metal S.W.2d 299 (Tex.1963). In considering the buildings which were designed for the purposes of complaint that these findings are against the great this contract and which are of substantially less weight of the evidence, we will consider all of the value for any purpose other than that evidence. In re King's Estate, 244 S.W.2d 660 contemplated for this contract. Four of these (Tex.1951). prefabricated metal buildings were erected on the property owned by Defendant. The other sixteen George Hicks, the general contractor's have not been erected. Fourteen are located on president, testified that he visited Joe Davis, the the property of Plaintiff. The two for storage owner's president, in the early part of 1978 and buildings are on the property of Defendant. later submitted a typed proposal to build a 50' X 50' X 12' metal building. The written proposal was 10. The total cost incurred by Plaintiff for not accepted, and Hicks refigured the building, materials purchased under the contract, and for using the dimensions of 40' X 60' X 12'. At this labor used in constructing the improvements, is time Hicks said that Davis talked with him about $407,533.19. Plaintiff is due under the contract an them starting to do the work on a "cost plus 20%" additional $81,506.64, being 20% of the cost of basis. Hicks said there was no change in this the labor and materials. Plaintiff has received arrangement until they quit work. The general $312,278.12 in payment from the Defendant. The contractor worked on seventeen different total amount due and owing Plaintiff under the locations, and it furnished labor and equipment. contract is therefore $176,761.71. This amount is It also arranged for subcontractors who looked to just and reasonable and is now due and owing. the general contractor for payment.

11. The paving done on the location at the job Hicks also testified that the first three site identified as East Highway 80 is defective and invoices included the "20% fee for contractor's Defendant is entitled to a set-off for the repair of services." One of the invoices was revised by such pavement, said set-off being in the amount Charley Guernsey, the owner's treasurer, and he of $2,893.00. applied the 20% figure to the invoice. The fourth billing was on August The owner has briefed eleven points of error, contending first that there is no evidence to Page 89 support the trial court's finding of an "express contract" for the general contractor to furnish 14, 1978. The owner paid the actual costs of this labor and materials for the construction of billing (except for one disputed item which was convenience stores on "numerous properties." In postponed by agreement), but the owner the alternative the owner contends that this deducted the 20% fee for contractor's services. finding is against the great weight of the evidence Several metal buildings had been charged to the and is manifestly unjust. owner at the actual wholesale cost paid by the general contractor, and a dispute developed as to The trial court's findings of fact have the whether the 20% fee should be added to the cost same force and dignity as a jury verdict; if of these buildings. At this point all work ceased. supported by any competent evidence, they will Skinny's, Inc. v. Hicks Bros. Const. Co. of Abilene, Inc., 602 S.W.2d 85 (Tex. Ct. App. 1980)

On cross-examination Hicks testified that the testimony that these records were made in the owner's people "almost daily came up with a new regular course of business, that the charges were location or a new project that they wanted done." verified by the various job foremen who had He considered that his company was the general personal knowledge of the charges, and that the contractor on those jobs, and they did brick work, entries were made near the time of the work or carpentry, ceiling work, floor tile and glass work reasonably soon thereafter. While some of the at various locations. They also arranged for entries were cryptic, the objection goes to the various subcontractors. Hicks testified that they weight of the evidence and not to its admissibility. had a "continual-type agreement" and that they As our Supreme Court stated in Black Lake Pipe "went from one job to the next with Line Company v. Union Construction Company, understanding we were to take care of the work Inc., 538 S.W.2d 80, at 93 (Tex.1976): for them." (I)t is for the trial court in the exercise of its Joe Davis, the owner's president, testified discretion to determine whether the opposing that he employed Hicks Brothers on a basis of party had an adequate opportunity to examine the "ten and ten, meaning that we would pay them records. 10% as overhead and 10% as profit." He said that he did not agree to pay 20% extra for the The evidence is conflicting as to the buildings which he ordered. On cross- opportunity afforded for examining these records examination Davis said "they went as I told them prior to trial, and we must defer to the trial court to go." on this point.

We hold that there is evidence to support the Appellant's next contentions concern the trial court's findings 3, 4, 5, 6, 7 and 8, as quoted thirteen metal buildings which the trial court's above. We also hold that those findings are not judgment states ". . . now in the possession of against the great weight of the evidence. Plaintiff (general contractor) are the property of the Defendant (owner) and are to be delivered to Appellant's next contentions are that the trial the Defendant (owner) when this judgment is court erred in the admission of certain "business fully satisfied." One point argues that the trial records" and that the evidence is legally and court erred in allowing the general contractor to factually insufficient to support the finding that retain possession of these buildings until the the owner is indebted to the general contractor in judgment is satisfied. Another point claims that the sum of $176,761.71. These contentions are the general contractor converted these buildings overruled. to its own use and that it owes the owner for the value of those buildings. These points are If certain business records were improperly overruled. admitted, we must presume that the trial judge considered only the admissible evidence in this Tex.Bus. & Com.Code Ann. § 2.703 (Vernon nonjury trial. Victory v. State, 158 S.W.2d 760, at 1968) provides that where the buyer fails to make 765 (Tex.1942); 4 McDonald, Texas Civil Practice a payment due on or before delivery, the seller § 16.04 (rev.1971). may withhold delivery of the goods. Consequently, there was no conversion. George Hicks and Sherry Hicks testified as to the methods which were used by the general Page 90 contractor in keeping its business records. The "job cost sheets" were based upon the daily Appellant's next contentions concern the "foreman's reports." The job cost sheets were sufficiency of proof as to the Mechanic's Liens. properly admitted under Tex.Rev.Civ.Stat.Ann. These points of error are overruled. The objection art. 3737e (Vernon Supp. 1980). There was to the liens at the trial court was that "the Skinny's, Inc. v. Hicks Bros. Const. Co. of Abilene, Inc., 602 S.W.2d 85 (Tex. Ct. App. 1980)

affidavits do not comply with the requirements of have concluded that Rule 93(m) has no the statutes, which requires a statement of the application to the facts presented here. kinds of work done or the materials furnished, which is not in any of those affidavits." Bunch Electric is distinguishable on its facts, for it concerned the requirements of Tex.Rev.Civ.Stat.Ann. art. 5455 (Vernon Tex.Rev.Civ.Stat.Ann. art. 5160 (Vernon 1971), Supp. 1980), concerning liens for mechanics, rather than Article 5453, supra. We decline to contractors and material men, now provides that follow its rationale, and we hold that Tex.R.Civ.P. a general statement of the kind of work done or 54 is applicable and that the general contractor material furnished is sufficient and that: and the subcontractor were required to prove only such conditions precedent as were specifically It shall not be necessary to set forth the individual denied by the owner. See Continental items of work done or material furnished or Contractors, Inc. v. Thorup, 578 S.W.2d 864, at specially fabricated. Any abbreviations or symbols 866 (Tex.Civ.App. Houston (1st Dist.) 1979, no customary in the trade may be used. writ).

These liens were sufficient to comply with The last point of error deals with attorney Article 5455, supra. See Matthews Construction fees. It has been considered and is overruled. Company, Inc. v. Jasper Housing Construction Co., 528 S.W.2d 323, at 329 (Tex.Civ.App. The judgment of the trial court is affirmed. Beaumont 1975, writ ref'd n. r. e.).

For the first time on appeal, the owner claims that there was no evidence of mailing copies of the lien affidavits to the owner by certified mail in compliance with Tex.Rev.Civ.Stat.Ann. art. 5453 (Vernon Supp. 1980). This was not the basis of the objection when the liens were introduced into evidence. Tex.R.Civ.P. 324 now requires a motion for new trial to present a complaint which has not otherwise been ruled upon by the trial court. If this objection had been made at trial, the general contractor and the subcontractor would have been afforded the opportunity of proving the notice, as alleged in their pleadings.

The owner relies on Bunch Electric Company v. Tex-Craft Builders, Inc., 480 S.W.2d 42, at 46 (Tex.Civ.App. Tyler 1972, no writ), which stated:

Appellant failed to offer any proof showing the notice of the claim was sent by certified or registered mail. . . . Having failed to offer proof showing the notice was mailed . . . , appellant failed to establish the existence of a cause of action . . . .

While we have been unable to find any case directly in point, and have been cited none, we State v. Lueck, 290 S.W.3d 876 (Tex. 2009)

290 S.W.3d 876 warned of regulatory non-compliance, not a The STATE of Texas and the Texas violation of law, and because an agency Department of Transportation, supervisor is not an appropriate law enforcement Petitioners, authority to whom a report should be made, v. Lueck's allegation affirmatively negates the George LUECK, Respondent. court's subject-matter jurisdiction over the cause. No. 06-1034. The State's sovereign immunity is not waived, and Supreme Court of Texas. thus, we reverse the court of appeals' judgment Argued November 12, 2008. and dismiss the case for lack of subject-matter Decided June 26, 2009. jurisdiction. Rehearing Denied August 28, 2009. [290 S.W.3d 879] [290 S.W.3d 878] I Walter C. Brocato, Office of Attorney General, Kristina Weber Silcocks, Office of the Attorney A 1995 Federal Highway Administration General, Greg W. Abbott, Attorney General of report concluded that Texas's system for Texas, Kent C. Sullivan, First Assistant Attorney collecting, analyzing, and reporting traffic data General, Edward D. Burbach, Gardere Wynne violated federal standards. In 1999, the State Sewell LLP, Rafael Edward Cruz, Office of contracted with a private vendor, Cooper Attorney General, David S. Morales, Office of the Consulting Company, to upgrade TxDOT's Attorney General, Austin, TX, Ryan D. Clinton, computers and develop software for a Hankinson Levinger, Dallas, TX, for Petitioner. replacement system, called the Statewide Traffic Analysis and Reporting System ("STARS"). As the Gregory C. Douglass, Gregory C. Douglass, Assistant Director of TxDOT's Traffic Analysis P.C., Austin, TX, for Respondent. Section, Lueck was responsible for the daily management of the STARS program. Three years Justice GREEN delivered the opinion of the into the implementation project, the state auditor Court. began investigating a Cooper invoice that was left undisputed by TxDOT, charging the State Under the Texas Whistleblower Act, $350,783. The charge was initially described by sovereign immunity is waived when a public Cooper as both a contingency fee and a "Project employee alleges a violation of Chapter 554 of the Work Plan," but the vice president for Cooper Government Code. TEX. GOV'T CODE § later admitted that a "Project Work Plan" was 554.0035. A violation under Chapter 554 occurs worth no more than $75,000. TxDOT then when a governmental entity retaliates against a requested a cost breakdown of the charge, which public employee for making a good-faith report of Cooper ultimately characterized as "payment a violation of law to an appropriate law smoothing." enforcement authority. Id. § 554.002(a). George Lueck was fired from the Texas Department of Later, James Randall, the Director of the Transportation (TxDOT) after he sent an e-mail Transportation Planning and Programming to the director of the Transportation Planning and Division at TxDOT, suspended all work on the Programming Division, reporting what he STARS project, and advised Cooper that the State believed to be violations of state and federal law. would no longer pay for work that was not Lueck then sued the State of Texas and TxDOT previously approved by TxDOT. Cooper's lawyers under the Whistleblower Act, alleging that he then sent a demand letter, notifying TxDOT that "was fired because of his good faith reports of Cooper would terminate its contract if the state TxDOT's violation of state and federal law." We failed to pay the disputed charge within thirty hold that, because Lueck's e-mail report only days. A day after the letter was sent, Lueck sent State v. Lueck, 290 S.W.3d 876 (Tex. 2009)

Randall an e-mail entitled "STARS Contract." In 554.0035. In response, TxDOT argued that the e-mail, Lueck informed Randall that the Lueck's pleadings affirmatively demonstrated that Traffic Division urged "an immediate positive he did not allege a violation under the Act because response and resolution" of Cooper's demand the e-mail he sent did not report an actual letter. In numbered format, he outlined five violation of the law, and his supervisor to whom reasons why he believed TxDOT should resolve he sent the e-mail report was not a law the dispute with Cooper, rather than cancel the enforcement authority. TxDOT claimed it was at contract. The e-mail warned that without the least entitled to a hearing on its plea to the STARS system, TxDOT "is not capable of handling jurisdiction because the court must consider this data and will, therefore, never be in relevant evidence when necessary to resolve compliance." Lueck recommended that Randall jurisdictional issues. The trial court granted have the e-mail "readily available" when Lueck's motion to dismiss TxDOT's plea to the discussing the implications of the Cooper demand jurisdiction, and TxDOT appealed. See TEX. CIV. letter with the TxDOT Administration and PRAC. & REM.CODE § 51.014(a)(8) (permitting Contract Services Division. Thereafter, TxDOT appeal from interlocutory order that denies a plea informed Cooper that it would not pay the to the jurisdiction by a governmental unit). The payment smoothing charge and accepted court of appeals affirmed, reasoning that "Lueck's termination of Cooper's contract. TxDOT then pleadings affirmatively demonstrate the district fired Lueck on the basis that Lueck's attempt to court's jurisdiction to hear the case." 212 S.W.3d justify the $350,783 charge, despite his 630, 638. We disagree. A "violation under the knowledge that the charge was only worth a Act" under section 554.0035 is not alleged if the fraction of that cost, evidenced his own negligence pleadings affirmatively demonstrate that the and lack of trustworthiness. plaintiff did not make good-faith report of a violation of law to an appropriate law Lueck sued the State and TxDOT enforcement authority. See TEX. GOV'T CODE § (collectively, TxDOT) under the Whistleblower 554.002(a). Lueck's pleadings affirmatively Act, alleging that his e-mail to Randall constituted negate the trial court's subject-matter jurisdiction a report of a violation of law to an appropriate law because he did not report a violation of law, and enforcement authority because it reported that his supervisor is not a "law enforcement the Department would violate federal and state authority." Id. law if TxDOT did not resolve the dispute with Cooper. The e-mail report, which was attached to II Lueck's pleadings, specifically warned that, without the STARS program, TxDOT's existing The State and other state agencies like software was "not capable of handling th[e] data TxDOT are immune from suit and liability in and will, therefore, never be in compliance." Texas unless the Legislature expressly waives TxDOT filed a plea to the jurisdiction, claiming sovereign immunity. Tex. Dep't of Transp. v. City that its immunity was not waived because Lueck of Sunset Valley, 146 S.W.3d 637, 641 (Tex.2004); did not make a good-faith report of a violation of see also TEX. GOV'T CODE § 311.034 ("[A] law to an appropriate law enforcement authority, statute shall not be construed as a waiver of as required by section 554.002(a) of the sovereign immunity unless the waiver is effected Whistleblower Act. Lueck filed a second amended by clear and unambiguous language."). A statute special exceptions and motion to dismiss the plea waives immunity from suit, immunity from to the jurisdiction, arguing that his allegations, liability, or both. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 [290 S.W.3d 880] (Tex.2004); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696-97 (Tex.2003). Immunity alone, satisfied the unambiguous language of the from suit is a jurisdictional question of whether Act's immunity statute. See TEX. GOV'T CODE § the State has expressly consented to suit. Taylor, State v. Lueck, 290 S.W.3d 876 (Tex. 2009)

106 S.W.3d at 696. On the other hand, immunity The immunity provision in the Whistleblower from liability determines whether the State has Act states: accepted liability even after it has consented to suit. Id. In some statutes, immunity from suit and A public employee who alleges a violation of liability are co-extensive, whereby immunity from this chapter may sue the employing state or local suit is waived to the extent of liability. See, e.g., governmental entity for the relief provided by this TEX. CIV. PRAC. & REM.CODE § 101.025(a); chapter. Sovereign immunity is waived and Miranda, 133 S.W.3d at 224 ("The Tort Claims abolished to the extent of liability for the relief Act creates a unique statutory scheme in which allowed under this chapter for a violation of this the two immunities are co-extensive. . . ."). chapter.

Sovereign immunity from suit is properly TEX. GOV'T CODE § 554.0035. The standard asserted when the State files a plea to the for a "violation of this chapter" appears in section jurisdiction. Miranda, 133 S.W.3d at 225-26 554.002(a), which provides that the (citing Hosner v. DeYoung, 1 Tex. 764, 769 governmental entity "may not suspend or (1847)). In contrast, immunity from liability is an terminate the employment of, or take other affirmative defense that cannot be raised by a plea adverse personnel action against, a public to the jurisdiction. Tex. Dep't of Transp. v. Jones, employee who in good faith reports a violation of 8 S.W.3d 636, 638 (Tex.1999) (per curiam). law by the employing governmental entity or However, when the facts underlying the merits another public employee to an appropriate law and subject-matter jurisdiction are intertwined, enforcement authority." Id. § 554.002(a). Lueck the State may assert sovereign immunity from maintains that section 554.002(a) contains non- suit by a plea to the jurisdiction, even when the jurisdictional elements that speak to the trial court must consider evidence "necessary to underlying merits of the claim, and therefore, resolve the jurisdictional issues raised." Bland cannot be considered when determining Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 jurisdiction. Lueck argues that requiring his (Tex.2000); see also, e.g., Miranda, 133 S.W.3d pleadings, alone, to satisfy the elements of section at 223-24; Tex. Dep't of Criminal Justice v. 554.002(a) would unnecessarily compel him to Miller, 51 S.W.3d 583, 587 (Tex.2001). We have prove up his case before the court assumed limited the use jurisdiction. The court of appeals agreed, and held that, while evidence pertaining to elements of [290 S.W.3d 881] section 554.002(a) "may negate [TxDOT's] liability under the Whistleblower Act, it would of a plea to the jurisdiction in these circumstances not, even if true, affect the district court's subject- by holding that such a plea may only be used to matter jurisdiction to hear the case." 212 S.W.3d address jurisdictional facts. Tex. Dep't of at 637-38. Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex.2004). Lueck, therefore, argues that Simons We agree with Lueck and the court of appeals compels dismissal of this appeal because TxDOT that there are but two jurisdictional requirements has not appealed jurisdictional facts, but rather, under section 554.0035. For the government's facts involving the TxDOT's liability under section immunity to be waived, the plaintiff must (1) be a 554.002(a), which Lueck claims cannot be public employee, and (2) allege a violation of this asserted by a plea to the jurisdiction. Therefore, chapter. TEX. GOV'T CODE § 554.0035 as a threshold matter, the first issue is whether (emphasis added). But it necessarily follows from the elements of section 554.002(a) constitute this language that Lueck must actually allege a jurisdictional facts that can implicate the court's violation of the Act for there to be a waiver from subject-matter jurisdiction. suit. Therefore, the elements under section 554.002(a) must be considered in order to III ascertain what constitutes a violation, and State v. Lueck, 290 S.W.3d 876 (Tex. 2009)

whether that violation has actually been alleged. imposes a limited waiver of immunity, whereby We conclude that the elements of section immunity from suit is only waived to the extent of 554.002(a) can be considered as jurisdictional liability. See Miranda, 133 S.W.3d at 224 ("The facts, when it is necessary to resolve whether a Tort Claims Act creates a unique statutory scheme plaintiff has alleged a violation under the Act. in which the two immunities are co-extensive. . . ."). Likewise, the court of appeals declined to Lueck argues that the elements of 554.002(a) follow Miranda, finding that the immunities are can never be considered as jurisdictional facts co-extensive under the Tort Claims Act, but not because we are bound to follow the plain, under the Whistleblower Act. 212 S.W.3d at 637. unambiguous language of the immunity statute, Because of this distinction, the court of appeals which clearly indicates that the Legislature found that the section 554.002(a) elements only intended to impose only two jurisdictional resolve the extent of the TxDOT's liability, not the requirements on Lueck: that he be a public jurisdictional issue concerning the State's consent employee and that he allege a violation under the to suit. Id. ("[F]acts pertaining to whether the Whistleblower Act. Id. § 554.0035; see also State Department may be found liable under the v. Shumake, 199 S.W.3d 279, 284 (Tex.2006) Whistlebower Act are neither dispositive of, nor ("[W]hen possible, we discern [legislative intent] relevant to, our jurisdictional inquiry."). TxDOT, from the plain on the other hand, argues that Miranda and Miller are dispositive because the immunity [290 S.W.3d 882] statutes under the Whistleblower Act and Tort Claims Act are substantively identical. Compare meaning of the words chosen."). However, the TEX. GOV'T CODE § 554.0035, with TEX. CIV. second jurisdictional requirement in section PRAC. & REM.CODE § 101.025(a). We will 554.0035 directs the inquiry to section consider immunity statutes one-by-one to 554.002(a) to determine if the plaintiff has determine whether immunity has been waived. actually alleged a violation, rather than merely referenced the chapter. To hold that elements of In Wichita State Hospital v. Taylor, we section 554.002(a) cannot be considered as part recognized that the first sentence of the of this inquiry would obfuscate our previous Whistleblower Act waives sovereign immunity decision in Miller, where we held that "[m]ere from suit. 106 S.W.3d at 697 n. 6. Although we reference to the . . . Act does not establish the also recognized that the second sentence waives state's consent to be sued and thus is not enough immunity from liability, id. at 697 n. 5, this to confer jurisdiction on the trial court." 51 waiver simply limits judgments against the State S.W.3d at 587. In Miranda, we also considered to "the extent of liability for the relief allowed elements under the Texas Recreational Use under this chapter for a violation of this chapter." statute to determine whether immunity was TEX. GOV'T CODE § 554.0035. Since waived under the Tort Claims Act. 133 S.W.3d at "[i]mmunity from liability protects the [S]tate 225; see also TEX. CIV. PRAC. & REM.CODE § from judgment even if the Legislature has 101.025(a). We see no reason to depart from these expressly consented to the suit," see Jones, 8 decisions when the elements of section S.W.3d at 638, this second sentence not only 554.002(a) are equally relevant to the waives immunity from liability, but also confines jurisdictional requirement that the plaintiff the scope of the State's consent to suit that was actually allege a violation of the Whistleblower established in the first sentence. Thus, like the Act. Compare TEX. GOV'T CODE § 554.0035, Tort Claims Act, the Whistleblower Act imposes a with TEX. CIV. PRAC. & REM.CODE § limited waiver of immunity that allows 101.025(a). consideration of the section 554.002(a) elements, to the extent necessary in determining whether Lueck claims that Miranda and Miller are the claim falls within the jurisdictional confines of not controlling because the Texas Tort Claims Act section 554.0035. State v. Lueck, 290 S.W.3d 876 (Tex. 2009)

Lueck also claims that we are precluded from the press"). Lueck claims that, through these considering the section 554.002(a) elements as decisions, we implicitly recognized that elements jurisdictional facts under Dubai Petroleum in section 554.002(a) cannot be considered as Company v. Kazi, 12 S.W.3d 71, 76-77 (Tex.2000) jurisdictional facts because these cases were (holding that statutory decided on the merits and not dismissed for lack of subject-matter jurisdiction. However, the issue [290 S.W.3d 883] of subjectmatter jurisdiction was not before us in any of these cases; indeed, the State did not file a prerequisites to suits against a non-governmental plea to the jurisdiction in Needham and Bouillion. entity were not jurisdictional). When we applied See Needham, 82 S.W.3d at 317; Bouillion, 896 Dubai to a case involving statutory prerequisites S.W.2d at 145. Likewise, in Park, the State filed to suit against governmental entities, see Univ. of both a plea to the jurisdiction and motion for Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d summary judgment, then appealed the trial 351, 358-59, 362 (Tex.2004), the Legislature court's denial of the motion for summary responded by passing a statute stating that, judgment. 246 S.W.3d at 613. Similar to this case, "[S]tatutory prerequisites to suit, including the we reversed the denial of a plea to the jurisdiction provision of notice, are jurisdictional in City of Waco v. Lopez, holding that the plaintiff requirements in all suits against a governmental could not bring a valid claim under the entity." TEX. GOV'T CODE § 311.034. This case Whistleblower Act because a claim under the does not fall under section 311.034 of the Commission on Human Rights Act was plaintiff's Government Code because the elements of section "exclusive state statutory remedy." 259 S.W.3d 554.002(a) are not statutory prerequisites to suit, 147, 156 (Tex.2008). By reasoning that but rather, elements of a statutory cause of action in a suit against a governmental entity.1 The issue [290 S.W.3d 884] before us today is whether these elements of a statutory cause of action, like statutory sovereign immunity was not waived because prerequisites to suit, are requirements that can Lopez failed to plead the more specific elements implicate the merits of the underlying claim, as under the Commission on Human Rights Act, we well as the jurisdictional inquiry of sovereign implicitly rejected the argument that simply immunity from suit as a threshold matter. We alleging a violation under the Whistleblower Act hold that the elements of section 554.002(a) can is sufficient to confer subject-matter jurisdiction be considered to determine both jurisdiction and on the trial court in suits against governmental liability. For example, we have previously entities. See id. rendered take-nothing judgments against plaintiffs when they failed to prove elements of Our holding does not mean that Lueck must section 554.002(a). See Montgomery County v. prove his claim in order to satisfy the Park, 246 S.W.3d 610, 612 (Tex.2007) (holding jurisdictional hurdle. Although the section plaintiff failed to prove that the County took 554.002(a) elements must be included within the "adverse personnel action" against plaintiff, as pleadings so that the court can determine whether required by section 554.002(a)); Tex. Dep't of they sufficiently allege a violation under the Act to Transp. v. Needham, 82 S.W.3d 314, 317 fall within the section 554.0035 waiver, we have (Tex.2002) (holding that no evidence supported a urged that the burden of proof with respect to jury finding that the plaintiff could have good- these jurisdictional facts "does not involve a faith belief that TxDOT was an appropriate law significant inquiry into the substance of the enforcement authority); City of Beaumont v. claims." Bland, 34 S.W.3d at 554; see also Bouillion, 896 S.W.2d 143, 146 (Tex. 1995) Miranda, 133 S.W.3d at 235 ("[I]f a plea to the (holding that section 554.002(a) was not satisfied jurisdiction requires the trial court to wade deeply because "as a matter of law, the Whistleblower into the lawsuit's merits, it is not a valid plea.") Act is not implicated merely by reports made to (Jefferson, C.J., dissenting). Allowing a plaintiff's State v. Lueck, 290 S.W.3d 876 (Tex. 2009)

pleadings to stand on bare allegations, alone, "When a plea to the jurisdiction challenges without allowing the State to challenge plaintiff's the pleadings, we determine if the pleader has compliance with the immunity statute, would alleged facts that affirmatively demonstrate the practically eliminate the use of pleas to the court's jurisdiction to hear the cause." Miranda, jurisdiction, which we have already approved as 133 S.W.3d at 226; see also Lopez, 259 S.W.3d at the proper "procedural vehicle to challenge 150; Taylor, 106 S.W.3d at 696; Miller, 51 S.W.3d subject matter jurisdiction in trial courts for over at 587 (quoting Tex. Ass'n of Bus. v. Tex. Air a century and a half." See Miranda, 133 S.W.3d at Control Bd., 852 S.W.2d 440, 446 (Tex.1993)). "If 232. The Legislature has also approved of their the pleadings use by allowing for an appeal from an interlocutory order denying or granting a plea to [290 S.W.3d 885] the jurisdiction. See TEX. CIV. PRAC. & REM.CODE § 51.014(a)(8). affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted Nor does our holding mean that the State without allowing the plaintiffs an opportunity to must challenge the plaintiff's pleadings through amend." Miranda, 133 S.W.3d at 227. TxDOT the use of a plea to the jurisdiction. We have argues that Lueck's pleadings do not affirmatively recognized that "[t]he absence of subject-matter demonstrate jurisdiction because they are jurisdiction may be raised by a plea to the incurably defective.2 In other words, TxDOT jurisdiction, as well as by other procedural points to uncontroverted allegations within vehicles, such as a motion for summary Lueck's pleadings, claiming that they affirmatively judgment." Bland, 34 S.W.3d at 554. Lueck claims negate jurisdiction because the e-mail sent to that the TxDOT should have objected to his Randall did not report a violation of law to an pleadings through the use of special exceptions, appropriate law enforcement authority. As for the and the court of appeals concluded that "a report element, Lueck's pleadings affirmatively traditional or no-evidence motion for summary negate the existence of a reported violation. judgment is the proper avenue for raising Lueck's fifth amended petition states that Lueck [TxDOT's] concerns that its evidence would "believed and reported in good faith that if the negate two essential elements of Lueck's Department did not pursue an immediate and [W]histleblower claim." 212 S.W.3d at 638 n. 4. positive resolution to Cooper's October 29, While both of these options are available, and demand[,] the Department would violate federal certainly not objectionable, we have never held and state law by failing to remedy non- that the State is precluded from challenging compliance with the federal and state reporting pleadings in a plea to the jurisdiction when it requirements." This allegation merely recites could have done so via special exceptions or Lueck's prediction of possible regulatory non- motions for summary judgment. Since we compliance. Such a regulatory non-compliance of disapproved of this position in Miranda, 133 this kind does not equate to a violation of law S.W.3d at 225-26 (citing Hosner, 1 Tex. at 769 under which a law enforcement authority (1847)), we decline to make an exception for the regulates or enforces within the meaning of the Whistleblower Act's immunity procedure. Whistleblower Act. See TEX. GOV'T.CODE § Because we have held that the 554.002(a) 554.002(b). Further, Lueck attached the e-mail elements are jurisdictional when necessary to report to his pleadings, and the only discernable ascertain whether plaintiff has adequately alleged violation in the report itself states that TxDOT's a violation of the chapter, we now turn to Lueck's current system for reporting traffic data "is not pleadings to consider whether they sufficiently capable of handling this data and will, therefore, waive the TxDOT's immunity. never be in compliance." This references the violation reported in the 1995 Federal Highway IV Administration report, which is only intended to call TxDOT's attention to a previous, publicly- State v. Lueck, 290 S.W.3d 876 (Tex. 2009)

known instance of regulatory non-compliance. At enforcement authority, given employee's training most, this reference to a previous violation of a and level of experience). Therefore, as a matter of federal standard expresses disagreement with law, Lueck's pleadings affirmatively demonstrate remedial measures taken by TxDOT after it was that he did not allege a violation under the already knowingly out of compliance. An internal Whistleblower Act.3 For these reasons, we reverse policy recommendation of this kind is not a report the court of appeals' judgment and dismiss the of a violation of law that the Whistleblower Act cause for lack of subject-matter jurisdiction. was designed to protect. --------------- Even if this e-mail did report a violation of law, Lueck's supervisor, Mr. Randall, is not an Notes: appropriate law enforcement authority to whom such a report should be made. As the head of a 1. Lueck also argues that Igal v. Brightstar division within TxDOT, Randall could neither Information Technology Group, Inc. is regulate nor enforce the law that Lueck alleged controlling because we held that elements of a had been violated. See TEX. GOV'T CODE § statutory cause of action cannot be considered 554.002(b)(1), (2) (providing that an appropriate jurisdictional unless "the language of the law enforcement authority is "part of a state or provision [or] the statutory scheme indicates" local governmental entity . . . that the employee in that the Legislature intended to address good faith believes is authorized to: regulate jurisdiction. 250 S.W.3d 78, 84 (Tex.2008). Igal under or enforce the law alleged to be violated in involved the jurisdiction of an administrative the report or; investigate or prosecute a violation agency, not subject-matter jurisdiction in a case of criminal law"); Needham, 82 S.W.3d at 320 where the State asserts a plea to the jurisdiction, (holding that TxDOT was not appropriate law claiming that its sovereign immunity is not enforcement authority to enforce laws related to waived. See id. at 81-82. However, even if Igal driving while were to control statutes waiving the State's consent to suit, both the immunity provision, [290 S.W.3d 886] section 554.0035, and the statutory scheme of the Whistleblower Act indicate that the Legislature intoxicated, reasoning that "the particular law the intended for section 554.002(a) to be considered public employee reported violated is critical to the as part of the jurisdictional inquiry because determination"). In fact, Lueck's e-mail report section 554.0035 references a "violation of the indicates that he knew Randall was not the proper chapter," which is found in section 554.002(a). authority within TxDOT to regulate the reported 2. Lueck argues that the TxDOT waived the violations because he recommended that Randall argument that his pleadings fail to affirmatively have his e-mail "readily available" when demonstrate jurisdiction because it was discussing the implications of suspending the undisputed before the trial court and court of STARS program with other TxDOT divisions. Cf. appeals that Lueck was a public employee and Needham, 82 S.W.3d at 320-21 (holding that an had alleged a violation of the Act. We disagree. In employer's power to conduct internal TxDOT's Reply Brief before the court of appeals, investigative or disciplinary procedures does not TxDOT argued that "Lueck has not alleged a satisfy standard for appropriate law enforcement violation of the Texas Whistleblower Act and has authority under the Act). This conclusively not waived the State Defendants' sovereign establishes that Lueck could not have formed a immunity under section 554.0035. . . ." TxDOT's good-faith belief that Randall was authorized to plea to the jurisdiction before the trial court also enforce such violations. See id. (holding that stated that one of the problems with Lueck's claim may fall under Whistleblower Act if allegations is that the jurisdictional facts show employee formed a reasonable, good faith belief that Lueck did not make a good-faith report of a that report was made to an appropriate law State v. Lueck, 290 S.W.3d 876 (Tex. 2009)

violation of law to an appropriate law enforcement authority. Since both of these arguments made below dispute the proper allegation of a violation, TxDOT did not waive its right to assert that the pleadings negated subject- matter jurisdiction.

3. TxDOT also argues that the court of appeals erred in affirming the trial court's denial of its plea to the jurisdiction because the trial court abused its discretion when it declined to consider the relevant jurisdictional evidence that TxDOT intended to present at its hearing on the plea to the jurisdiction. TxDOT claimed that this evidence proved that Lueck did not allege a violation under the Act. See Bland, 34 S.W.3d at 554 (holding that the trial court must consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised). Because we have held that Lueck's pleadings affirmatively negate the trial court's jurisdiction as a matter of law, we need not consider whether the trial court should have considered the TxDOT's evidence at a hearing on its plea to the jurisdiction. See Miranda, 133 S.W.3d at 227 ("When the consideration of a trial court's subject matter jurisdiction requires the examination of evidence, the trial court exercises its discretion in deciding whether the jurisdictional determination should be made at a preliminary hearing or await a fuller development of the case. . . .").

--------------- Tex. Dep't of Criminal Justice–Community Justice Assistance Div. v. Campos, 384 S.W.3d 810, 56 Tex. Sup. Ct. J. 75 (Tex. 2012)

384 S.W.3d 810 judgment dismissing the claims against TDCJ for 56 Tex. Sup. Ct. J. 75 want of jurisdiction.

TEXAS DEPARTMENT OF CRIMINAL Luzelma Campos, Betty Jo Gonzalez, and JUSTICE–COMMUNITY JUSTICE Misty Valero (collectively, the Plaintiffs) were ASSISTANCE DIVISION, Petitioner, referred to the SATF for detention. The SATF is v. operated by the local Community Supervision and Luzelma CAMPOS, Betty Jo Gonzalez, and Corrections Department (CSCD). SeeTex. Gov't Misty Valero, Respondents. Code §§ 76.004(b), 76.006(a)-(b). TDCJ furnishes administrative and technical assistance to the No. 11–0728. SATF, including officer training and certification. See id. §§ 509.003–.005, 509.008–.009. Supreme Court of Texas. In December 2000, the Plaintiffs sued Oct. 26, 2012. Nueces County, TDCJ, and two SATF officers, Anthony Allen and Cordell Hayes. [384 S.W.3d 812] [384 S.W.3d 813]

Daniel T. Hodge, First Asst. Attorney General, The Plaintiffs alleged that Allen and Hayes David C. Mattax, Director of Defense Litigation, sexually harassed and assaulted them while they Jonathan F. Mitchell, Solicitor General, Patrick were at the SATF. As relevant to this appeal, they Nicholas Brezik, Philip A. Lionberger, Assistant asserted claims against TDCJ for violation of 42 Solicitor General, William J. “Bill” Cobb III, U.S.C. § 1983; premises defect; and negligent Office of the Attorney General, Greg W. Abbott, hiring, training, supervision, and implementation Attorney General of Texas, for Texas Department of policy. The Plaintiffs later added CSCD as a of Criminal Justice. defendant.

David T. Bright, Sico White Hoelscher & Braugh, TDCJ and CSCD filed a joint plea to the Corpus Christi, TX, for Luzelma Campos. jurisdiction based on governmental immunity, which the trial court granted in November 2006.1 The court of appeals affirmed the dismissal of the PER CURIAM. § 1983 claims but reversed as to the negligence claims. Campos v. Tex. Dep't of Criminal Justice The Texas Department of Criminal Justice (Campos II), 385 S.W.3d 35, 45, 2009 WL Community Justice Assistance Division (TDCJ) 3385248, at *8 (Tex.App.-Corpus Christi Oct. 22, brings this interlocutory appeal from the denial of 2009, no pet.) (mem. op.). The appeals court held its plea to the jurisdiction as to claims for that (1) the Plaintiffs' pleadings were sufficient to damages related to actions of two Nueces County allege a premises defect claim under the Texas Substance Abuse Treatment Facility (SATF) Tort Claims Act (TTCA), seeTex. Civ. Prac. & officers. The claims against TDCJ based on the Rem.Code § 101.021(2); and (2) the Plaintiffs use of tangible property involved intent to should be permitted to replead under their other accomplish intentional torts, and its plea to the theories of negligence after being allowed time for jurisdiction as to those claims should have been additional discovery. Id. at 385 S.W.3d, 40–42, granted. Its plea as to the remaining claims also 45, 2009 WL 3385248, *3–*5, *8. should have been granted because there was no allegation that those claims resulted from the use After remand, the Plaintiffs filed their fourth of tangible property. We reverse and render amended original petition. In it they alleged that in order to gain exclusive, private, unmonitored, Tex. Dep't of Criminal Justice–Community Justice Assistance Div. v. Campos, 384 S.W.3d 810, 56 Tex. Sup. Ct. J. 75 (Tex. 2012)

and unfettered access to them and to wrongfully a governmental unit. Tex. Civ. Prac. & Rem.Code confine them during the assaults, Allen and Hayes § 51.014(a)(8). While used property such as a laundry room, a laundry cart, and a storage room. TDCJ and CSCD again [384 S.W.3d 814] filed a joint plea to the jurisdiction. This time the trial court denied the plea. the court of appeals' judgment is usually conclusive on interlocutory appeal, we may TDCJ and CSCD appealed and the court of consider an interlocutory appeal when the court appeals affirmed in part, reversed in part, and of appeals holds differently from a prior decision rendered in part. 387 S.W.3d 735, at 744–45. The of this Court. Tex. Gov't Code §§ 22.001(a)(2), (e); court dismissed all of the Plaintiffs' claims against 22.225(c). We have jurisdiction because the CSCD and the premises liability claims against holding of the court of appeals conflicts with our TDCJ because immunity had not been waived. Id. decision in Texas Department of Public Safety v. But it held that immunity was waived for the Petta, 44 S.W.3d 575 (Tex.2001). claims against TDCJ for negligent hiring, training, and supervision of employees and negligent The Plaintiffs urge that TDCJ's immunity has implementation of policy because the TTCA been waived by the TTCA because Allen and waives the State's immunity for “personal injury Hayes used tangible property in perpetrating the ... so caused by a condition or use of tangible assaults. SeeTex. Civ. Prac. & Rem.Code § personal or real property.” Id. at 741; seeTex. Civ. 101.021(2) (waiving immunity when injuries are Prac. & Rem.Code § 101.021(2). It further held caused by a condition or use of tangible property). that the “intentional-torts exception,” which They reference, for example, Allen and Hayes's excludes waiver for claims “arising out of assault, use of a laundry cart that they rolled in front of battery, false imprisonment, or any other the door to the laundry room to block the intentional tort” did not bar the Plaintiffs' claims doorway when they performed the assaults. The “merely because the allegedly negligent conduct court of appeals held that immunity from the was accompanied by intentional torts.” 387 negligence claims was waived because of this use S.W.3d at 744;seeTex. Civ. Prac. & Rem.Code § or condition of property. We disagree with that 101.057(2). conclusion. The Plaintiffs do not assert that Allen and Hayes used the property for any purpose or In this Court TDCJ argues that (1) the with any intent other than to effect their relationship between Plaintiffs' theories of intentional assaults of the Plaintiffs. Additionally, liability and TDCJ is “too attenuated to waive the Plaintiffs' claims based on negligent conduct immunity” under the TTCA, (2) the Plaintiffs' do not involve the use of tangible property. As we allegations against it assert a non-use or misuse of explain below, the Plaintiffs' allegations do not information for which the TTCA does not waive present a claim within the TTCA's waiver of immunity, and (3) even assuming immunity is immunity for governmental entities. waived under the TTCA based on a misuse of property, the intentional-torts exception under In Petta we addressed negligence claims Texas Civil Practice and Remedies Code section against a governmental entity where the 101.057(2) bars the suit. We agree that TDCJ's underlying conduct was intentional in nature. immunity was not waived. Melinda Petta sued the Texas Department of Public Safety after a trooper allegedly assaulted First we note that appellate courts generally her. Petta, 44 S.W.3d at 576. We held that have jurisdiction only over appeals from final immunity was not waived for claims based on judgments. Bally Total Fitness Corp. v. Jackson, conduct such as the trooper's hitting Petta's car 53 S.W.3d 352, 352 (Tex.2001). But a party may window and shooting at her tires because those appeal from certain interlocutory orders, actions were intentional and fell within the including the denial of a plea to the jurisdiction by exclusion for claims arising out of assault, battery, Tex. Dep't of Criminal Justice–Community Justice Assistance Div. v. Campos, 384 S.W.3d 810, 56 Tex. Sup. Ct. J. 75 (Tex. 2012)

and false imprisonment. Id. at 580. We also held conduct by other employees, failed to properly that immunity was not waived for claims that the hire, train, and supervise Allen and Hayes, and Department negligently failed to furnish proper failed to screen, educate, train, supervise, training and instruction to the trooper because investigate, or otherwise direct employees with information, even if written down, is not tangible regard to sexual harassment and assault. The property but is only an abstract concept. Id. at Plaintiffs do not allege that a “use” of tangible 580–81. property was involved in any of these failures. See id. at 580–81 (concluding that claims related to The court of appeals determined that this negligent failure to train, instruct, and discipline case is distinguishable from Petta because involved the misuse or non-use of information property such as a laundry room and adjacent which is not tangible property). Thus, the TTCA storage room, a laundry cart, and keys were used does not waive TDCJ's immunity from the claims. in this case, and such property is tangible and not abstract. 387 S.W.3d at 741–42. But even The Plaintiffs also allege that TDCJ is liable assuming the Plaintiffs' injuries were caused by a because it made tangible property available to use of tangible property, the Plaintiffs' only Allen and Hayes. But providing someone with allegations regarding this property were that it property that is not inherently unsafe is not a was used in the course of Allen and Hayes gaining “use” under the TTCA. The Plaintiffs do not claim “exclusive, private, unmonitored, and unfettered that the property Allen and Hayes used was access to the Plaintiffs, to thwart escape from the inherently unsafe, so TDCJ's immunity is not assaults, and to wrongfully confine Plaintiffs waived for making the property available to them. during the assaults.” The property was only used San Antonio State Hosp. v. Cowan, 128 S.W.3d with intent to accomplish the assaults of which 244, 246 (Tex.2004) (“If all ‘use’ meant were ‘to the Plaintiffs complain. Thus, the property's use is make available,’ the statutory restriction would encompassed within the exclusion of claims have very little force.”). arising from intentional torts.2Tex. Civ. Prac. & Rem.Code § 101.057(2); see Petta, 44 S.W.3d at Finally, the Plaintiffs claim that TDCJ 580. permitted surveillance cameras to be improperly located. “Use” under the TTCA means “to put or [384 S.W.3d 815] bring into action or service; to employ for or apply to a given purpose.” Id. Even assuming the truth However, even if a claim is based on an of the allegations that TDCJ determined improper intentional tort, a governmental entity may still locations for placement of the cameras, its be liable for negligence if that negligence is decisions do not equate to “using” the cameras, distinct from the intentional tort. Young v. that is, putting or bringing them into service or Dimmitt, 787 S.W.2d 50, 51 (Tex.1990) employing or applying them to a given purpose. (“Although a governmental unit is immune from Using the cameras for surveillance is different claims arising out of intentional torts, petitioners' from deciding where to place them so they might negligent employment and entrustment claims later be used. arise out of the alleged negligence of the city employees supervising the officer, not out of the Although the allegations in the Plaintiffs' officer's intentional tort.” (citation omitted)). But pleadings do not demonstrate the court's a cause of action for negligent supervision or jurisdiction, neither do they affirmatively negate training must satisfy the TTCA's use of tangible it. The situation is a matter of pleading property requirement. Petta, 44 S.W.3d at 581. sufficiency, and in such situations, plaintiffs The Plaintiffs' claims do not. should generally be given an opportunity to amend the pleadings. Tex. Dep't of Parks & The Plaintiffs allege, without elaboration, Wildlife v. Miranda, 133 S.W.3d 217, 226–27 that TDCJ failed to discipline prior inappropriate (Tex.2004). However, if a governmental entity Tex. Dep't of Criminal Justice–Community Justice Assistance Div. v. Campos, 384 S.W.3d 810, 56 Tex. Sup. Ct. J. 75 (Tex. 2012)

has asserted in the trial court that it is immune 2. TDCJ asserts that contrary to Plaintiffs' and a plaintiff fails to allege or show facts allegations in their pleadings, Allen and Hayes are demonstrating a waiver of immunity after having not State employees but are employees of CSCD. a reasonable opportunity to conduct discovery See Delaney v. Univ. of Houston, 835 S.W.2d 56, directed to the issue and amend the pleadings, 59 (Tex.1992) (concluding that the intentional then the case should be dismissed. Rusk State tort exception only applies if a governmental Hosp. v. Black, ––– S.W.3d ––––, –––– employee's conduct is the subject of the (Tex.2012); Harris Cnty. v. Sykes, 136 S.W.3d complaint). But when reviewing a plea to the 635, 639 (Tex.2004). In this case the Plaintiffs jurisdiction, we take as true all evidence favorable amended their petition three times over a period to the non-movant, indulging every reasonable of nine years after inference and resolving any doubts in its favor. See City of El Paso v. Heinrich, 284 S.W.3d 366, [384 S.W.3d 816] 378 (Tex.2009). Even if Allen and Hayes are not TDCJ employees and the intentional tort TDCJ filed its first plea to the jurisdiction. Prior exception is inapplicable, our ultimate conclusion to the Plaintiffs' last amendment the court of would not change because Campos must show a appeals had noted “it is unclear from the waiver of immunity for her separate negligence pleadings how the surveillance cameras and claim against TDCJ. See Delaney, 835 S.W.2d at rooms in the SATF facility may have been used, as 60. opposed to not used, and thereby caused an injury.” Campos II, 385 S.W.3d 35, 41–42, 2009 WL 3385248, at *5. The plaintiffs have had a reasonable opportunity to engage in discovery on the immunity question and amend their pleadings, but nevertheless have not alleged or shown facts demonstrating their injuries were caused by TDCJ's use of tangible property. Accordingly, they have failed to demonstrate a waiver of TDCJ's immunity.

We grant TDCJ's petition for review. Without hearing oral argument, seeTex.R.App. P. 59.1, we reverse the judgment of the court of appeals and dismiss the Plaintiffs' claims against TDCJ.

--------

Notes:

In 2003, the trial court granted Nueces 1.

County's plea to the jurisdiction. The court of appeals reversed and remanded. Campos v. Nueces Cnty., 162 S.W.3d 778, 782 (Tex.App.- Corpus Christi 2005, pet. denied). The County was ultimately dismissed from the suit. Tex. Parks & Wildlife Dep't v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. Apr 10, 2025)

1 The Texas Parks and Wildlife Department (the Department) is generally responsible for TEXAS PARKS AND WILDLIFE wildlife management in Texas.[1] As part of its DEPARTMENT AND JOHN SILOVSKY, obligation to protect and conserve the state's WILDLIFE DIVISION DIRECTOR, wildlife resources, the Department has the Appellants authority to "manage" wildlife for "disease v. diagnosis or prevention."[2] One disease it works RW TROPHY RANCH, LTD. AND ROBERT to contain is Chronic Wasting Disease (CWD), a WILLIAMS, Appellees type of transmissible spongiform encephalopathy (TSE) that affects susceptible cervid species like No. 15-24-00112-CV white-tailed deer.[3] First detected in Texas in 2012, CWD is caused when abnormal prions Court of Appeals of Texas, Fifteenth convert an animal's normal prion proteins to a District misfolded shape, leading to "neurodegenerative damage" and an increased risk of death due to April 10, 2025 other diseases or directly from CWD. CWD can be spread directly (deer to deer) or indirectly (via a On Appeal from the County Court at Law contaminated source), can "remain infectious in No. 2 Kaufman County, Texas Trial Court Cause the environment for a very long period of time," No. 110299-CC2 and has an incubation period of 18-24 months, after which an infected animal will show clinical Before Chief Justice Brister and Justices signs of the disease, including severe emaciation, Field and Farris. disorientation, excessive salivation, and shaggy OPINION coats. Compared to other states, Texas has a lower prevalence of CWD in its free-ranging and Scott A. Brister, Chief Justice captive white-tailed deer populations, but the state implements management strategies to Among the constitutional issues we consider mitigate its spread, including depopulation-the in this interlocutory appeal is whether a Texas euthanization of an entire herd.[4] deer breeder has a vested, constitutionally protected property interest in these wild animals. 3 We join the other courts that have addressed this issue and hold that deer breeders do not have a B. CWD at RW Trophy Ranch vested property right in such animals. We also Texas generally prohibits the possession of hold that Appellees failed to plead a viable waiver white-tailed deer, but it does permit "breeder of sovereign immunity as to any of their claims. deer" to be "held in captivity for propagation" We therefore reverse the trial court's order pursuant to a permit issued by TPWD and in 2 compliance with relevant statutes and regulations.[5]Appellant Robert Williams holds denying Appellants' plea to the jurisdiction and such a permit. He breeds white-tailed deer at RW render a judgment of dismissal. Trophy Ranch, his 68-acre deer breeding facility, surrounded by a 1500-acre release site, located in BACKGROUND Hunt and Kaufman Counties.

A. The Department works to mitigate the CWD was first detected in one of Williams's spread of CWD deer in February 2021. To mitigate its spread, the Department offered Williams a number of herd and research plans that did not involve complete Tex. Parks & Wildlife Dep't v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. Apr 10, 2025)

depopulation of the deer in his breeding facility. supported by additional briefing, arguing that The Department was willing to consider sovereign immunity barred Williams's due alternatives to total depopulation because, at the process claim because he has no vested property time, the low prevalence of CWD at the facility or liberty interest in his breeder deer and because was capable of being managed through other his takings claim was unripe. The Department means. But Williams rejected each of the plans. again notified Williams by letter on March 18 that By February 2022, eight more deer had died with it would depopulate the deer at his breeding CWD at RW Trophy Ranch. This was followed by facility, this time no sooner than April 4, 2022. an "alarming increase" in the number of CWD- Williams amended his petition to request an positive mortalities at the facility beginning injunction enjoining depopulation, as well as around the summer of 2022. By the following allegations that Section 43.593 of the Parks and summer, deer at the facility were dying at four Wildlife Code (addressing destruction of breeder times the rate they were when CWD was first deer) violated due course of law for not requiring detected. The death rate correlated with the a pre-depopulation hearing, that he has a number of CWD-positive mortalities, which constitutionally protected possessory interest in jumped from 25% in 2021 to 95% in 2023-figures his deer breeding permit, and that the described by the Department as "unheard of." The Department violated Article 1, Sections 8 and rise in CWD at RW Trophy Ranch also Section 9 of the Texas Constitution. Regarding the corresponded with a change in the Department's Department's jurisdictional approach to managing the outbreak-and the onset of litigation. 5

C. Trial court proceedings plea, Williams countered that he has a legally protected interest in his deer and a possessory In early 2022, the Department notified interest in his permit, and that his claims Williams that it would "euthanize and challenging the constitutionality of Section 43.593 were not barred. 4 After a March 29, 2022 hearing on the initiate postmortem disease testing of all the Department's plea, the trial court granted deer" in his breeding facility no earlier than Williams a second TRO on April 1, 2022 February 28, 2022. The notice came soon after prohibiting depopulation. Construing the trial Williams and RW Trophy Ranch sued the court's ruling as an implicit denial of its plea to Department and Wildlife Division Director John the jurisdiction, the Department appealed to the Silovsky in Travis County, where they also sought Dallas Court of Appeals, but that court disagreed a temporary restraining order (TRO) preventing that the trial court had implicitly denied the depopulation.[6] After the trial court denied the Department's plea and dismissed the appeal.[8] TRO request, Williams and RW Trophy Ranch sued the Department and Silovsky in Kaufman When the case returned to the Kaufman County, where they alleged due process and County court in 2023, the Department requested takings claims relating to the depopulation order a ruling on its plea to the jurisdiction but did not and again sought a TRO against depopulation.[7] immediately get one. The Department later filed On February 28, 2022, the Kaufman County trial additional briefing in support of its plea- court issued an ex parte order temporarily observing that RW Trophy Ranch was now "home restraining the Department from depopulating to the worst [CWD] outbreak ever seen in Texas"- Williams's deer. and sent Williams another letter dated August 3 notifying him that it intended to depopulate his The next month saw a flurry of filings. The breeding facility no sooner than August 14, 2023. Department filed a plea to the jurisdiction, Williams amended his petition to add claims that Tex. Parks & Wildlife Dep't v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. Apr 10, 2025)

the Department violated his rights to hunt and to The trial court denied the Department's plea equal protection. On August 10, the trial court to the jurisdiction and granted a temporary signed a third TRO prohibiting depopulation and injunction enjoining the Department from set a hearing on Williams's application for a depopulating Williams's deer.[9] temporary injunction. D. Appellate proceedings The trial court held a two-day evidentiary hearing in late August 2023 on Williams's request The Department appealed both rulings to the for a temporary injunction and the Department's Dallas Court of Appeals. Because the appeal plea to the jurisdiction. Williams's witnesses superseded the temporary injunction, Williams opined that his deer were in exceptional shape, filed a Rule 29.3 motion for an order prohibiting attributed the sharp rise in deer mortalities at RW the Department from depopulating his deer.[10] Trophy Ranch to Epizootic Hemorrhagic Disease (EHD), and generally discounted the threat posed 7 by CWD The Dallas Court granted the motion and 6 ordered the Department "not to depopulate appellees' captive-bred whitetail deer pending to the health of white-tailed deer. Williams resolution of th[e] interlocutory appeal."[11] outright denied that deer could die from CWD: "There's lots of things that kill deer, but CWD is The Department challenged the Dallas not one of them." And his counsel claimed the Court's ruling on the Rule 29.3 motion by filing a Department's efforts were aimed at "eliminating petition for writ of mandamus in the Texas deer breeders." Supreme Court, along with a motion for temporary relief seeking a stay of the Dallas The Department's witnesses opined that Court's stay order.[12] On April 5, 2024, the Texas depopulating Williams's breeder deer was now Supreme Court conditionally granted the necessary to prevent CWD from spreading to, and Department's motion.[13] On May 29, 2024, the thus increasing the health risks of, both free- Department "completed the total depopulation of ranging and captive white-tailed deer. They the breeder deer in the breeding facility owned clarified that the Department tests dead deer not and operated by Appellees RW Trophy Ranch Ltd. to determine whether they died of CWD, but and Robert Williams."[14] rather with CWD. This is because animals with CWD are 4.5 times more likely to die than Soon after receiving notice of the animals without it, and so whether a deer depopulation, the Dallas Court requested ultimately died of EHD or some cause other than supplemental briefing by the parties "addressing CWD does not mean that the deer did not have th[e] Court's jurisdiction over the present appeal CWD and was thus capable of spreading it to and whether any part of the appeal has become other deer and reducing their life expectancy. moot."[15] Both sides filed supplemental briefs, but Responding to opposing counsel's question the appeal was transferred to this Court before attributing the presence of misfolded prions to the Dallas Court issued an opinion.[16] The Dallas scrapie instead of CWD, one Department official Court held oral argument on January 30, 2024.[17] explained, "Well, regardless of what you call the disease, it's a TSE and it's having impacts on the 8 deer and the deer herd…. You could call it DISCUSSION snuffleupagus disease if you want to, but it's still having an effect on those deer." I. Mootness Tex. Parks & Wildlife Dep't v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. Apr 10, 2025)

We first consider whether Williams's claims Heckman, 369 S.W.3d at 162; Johnson v. Tex. were mooted by the Department's depopulation of Parks & Wildlife, 2014 WL 1432177, at *2 (Tex. the breeder deer at his facility. The Department App.-Austin Apr. 8, 2014, no pet.) ("Because the took the position in its supplemental briefing in herd-reconciliation activities Johnson sought to the Dallas Court of Appeals that, except for the enjoin have already occurred, the subject matter takings claim, "Williams's claims related to of the application for temporary injunction from restraining [the Department's] depopulation of which Johnson appeals is moot."). the breeding facility are now moot." Williams responded that his claims seeking equitable relief But we also conclude that this case fits are not moot and, alternatively, that two within an exception to mootness. exceptions to the mootness doctrine apply- "capable of repetition" and "collateral The capable-of-repetition-yet-evading- consequences." We agree with the Department review exception applies when "the challenged act that Williams's claims are moot (save his takings is of such short duration that the appellant cannot claim), but we also agree with Williams that the obtain review before the issue becomes moot." capable-of-repetition exception applies. Tex. A&M Univ.-Kingsville v. Yarbrough, 347 S.W.3d 289, 290 (Tex. 2011). There must be a "A case becomes moot if, since the time of "reasonable expectation that the same action will filing, there has ceased to exist a justiciable occur again if the issue is not considered," and the controversy between the parties-that is, if the plaintiff must show "that the claim is capable of issues presented are no longer 'live,' or if the repetition as to him." Heckman, 369 S.W.3d at parties lack a legally cognizable interest in the 164; Yarbrough, 347 S.W.3d at 290. outcome." Heckman v. Williamson Cnty., 369 S.W.3d 137, 162 (Tex. 2012). "Put simply, a case is It is reasonable to expect that Williams will moot when the court's action on the merits cannot continue to breed white-tailed deer. He has held a affect the parties' rights or interests." Id.; see deer breeder's permit since it became a Glassdoor, Inc. v. Andra Grp., LP, 575 S.W.3d requirement many years ago, and he still owns 523, 530 (Tex. 2019). and lives on RW Trophy Ranch with his family. "[O]ne of the oldest deer breeding facilities in Williams acknowledges that "the majority" of Texas," RW Trophy Ranch is a "money-making his claims seek equitable injunctive relief aimed at operation" that Williams claims has no "saving his herd of captive bred deer from economically viable use senseless slaughter." This includes his due course of law, ultra vires, and equal protection claims, 10 and his claims implicating Article I, Sections 8 and 34 of the Texas Constitution. But the besides breeding deer. At the hearing on the Department depopulated his breeding facility request for a temporary injunction, Williams after the Texas expressed his belief that deer do not die of CWD.

9 It is also reasonable to expect that the Department will use depopulation if CWD is Supreme Court conditionally granted the detected in Williams's breeder deer in the future- Department's request to stay the Dallas Court's a distinct possibility given that CWD "can remain Rule 29.3 order. Consequently, whatever decision infectious in the environment for a very long this Court makes in this appeal, the Court cannot period of time" and Williams failed to take save Williams's herd from depopulation, and adequate precautions to control its spread when it therefore cannot directly affect the rights or was first detected at his facility, perhaps due in interests that he seeks to protect through those part to his belief that deer do not die of CWD. claims. This means they are moot.[18] See Williams was successful in enjoining the Tex. Parks & Wildlife Dep't v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. Apr 10, 2025)

Department from depopulating his deer, but he course of law challenges because he does not have might not always achieve the same result, nor can a vested, constitutionally protected property he stop the Department from obtaining appellate interest in his breeder deer.[24] relief to eliminate an adverse injunction or stay order and proceeding with depopulation. That The Texas Constitution provides that "[n]o happened before Williams was able to obtain citizen of this State shall be deprived of life, judicial review of his claims in this case, and it liberty, property, privileges or immunities … very well could happen again if the parties were to except by the due course of the law of the find themselves back in the same place they are land."[25] But "[b]efore any substantive or now at some point in the future. procedural due-process rights attach," a "citizen must have a liberty or property interest that is On this record, the controversy between the entitled to constitutional protection."[26] "[T]o be parties over the Department's depopulation constitutionally protected, a mitigation strategy is capable of repetition but evading review. We proceed to the merits. 12

II. Plea to the Jurisdiction property interest must be vested."[27] A right is vested, and thus constitutionally protected, when The Department argues that the trial court one has a "legitimate claim of entitlement rather erred by denying its plea to the jurisdiction than a mere unilateral expectation."[28] Stated because Williams failed to plead a legally viable otherwise, "[w]hen an interest is predicated upon waiver of sovereign immunity as to any of his the anticipated continuance of an existing law and claims. Williams responds that the trial court has is subordinate to the legislature's right to change jurisdiction over all of his constitutional claims. the law and abolish the interest, the interest is not We agree with the Department. vested."[29] If a party lacks a vested interest, its due course of law claim is facially invalid and A. Standard of Review barred by sovereign immunity.[30]

State agencies like the Department are In Texas, all wild animals-including white- generally entitled to sovereign tailed deer-belong to the state, as trustee for the people.[31] It is illegal to possess them "for any 11 purpose not authorized by" the Parks and Wildlife Code.[32] That code authorizes a person to hold immunity.[19] Sovereign immunity from suit live deer captive for only two purposes: breeding defeats a trial court's subject-matter jurisdiction and management.[33] Our concern here is with and is properly raised in a plea to the breeding. jurisdiction.[20] When, as here, a plea to the jurisdiction challenges the pleadings, we The Department's authority to issue hunting determine if the pleader alleged facts that and fishing licenses includes affirmatively demonstrate the court's jurisdiction to hear the case.[21] We construe the pleadings 13 liberally in favor of the plaintiff while looking to the pleader's intent.[22] We review the trial court's the power to issue a "Deer Breeder's Permit," one order de novo.[23] of several so-called "Special Licenses and Permits."[34] Contained in Subchapter L to B. Due Course of Law Chapter 43 of the Parks and Wildlife Code, the statutes governing deer breeding in Texas cover a We first consider whether the Department wide range of topics and impose numerous retains sovereign immunity from Williams's due Tex. Parks & Wildlife Dep't v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. Apr 10, 2025)

requirements and conditions on the activity, • Release site requirements: including the following: "surrounded by a fence not less than seven feet in height that is capable • Definitions: "deer" means white- of retaining deer at all times";[44] tailed deer or mule deer, and and importantly "breeder deer" means those two types of deer "legally held under a • Application of other laws: breeder permit authorized by this deer "are under the full force of the subchapter";[35] laws of this state pertaining to deer."[45] • Permit required: "breeder deer may be held in captivity for Two "laws of this state pertaining to deer" propagation … only after a deer prohibit the possession of live game animals- breeder's permit is issued by the defined to include a white-tailed deer-"for any department under this purpose not authorized by this code."[46] Another subchapter";[36] set of "laws of this state pertaining to deer" permit the Department to take and destroy breeder deer • Permit duration: a permit may to prevent the spread of disease, discussed more issue for one, three, or five years, fully below.[47] The Department's deer breeding with the latter two subject to regulations align with the statutes, prohibiting the revocation before they expire;[37] possession of live deer without a permit and affording the Department discretion when issuing • Identification: detailed a permit.[48] requirements apply for identifying breeder deer;[38] Texas deer breeders like Williams thus enjoy the privilege of possessing and breeding deer in • Authorized deer breeder actions: captivity only pursuant to a permit issued by the selling, transferring, or holding in Department and in compliance with detailed captivity live breeder deer "for the statutes and regulations, several of which purpose of propagation or sale";[39] authorize the

• Rulemaking authority: the 15 Department may make regulations governing deer breeding;[40] Department's depopulation efforts in this case.[49] Any interest Williams claims in his breeder deer is • Inspection: the Department may subordinate to the Legislature's right to amend "inspect at any time and without a the laws governing deer breeding, or to abolish the interest altogether. This is precisely the type 14 of interest that is not vested.[50]

warrant" a deer pen and deer Other courts have reached the same breeding records;[41] conclusion. In Bailey v. Smith, the Third Court of Appeals held that "Subchapter L is clear that deer • Records: deer breeders must breeders have no vested property interest in their maintain records and reports breeder deer."[51] The court rejected the argument regarding breeder deer;[42] that white-tailed deer could be removed from the wild and held in captivity without a permit.[52] It • Enclosure size: a single enclosure also rejected the notion that a vested property is limited to 100 acres;[43] Tex. Parks & Wildlife Dep't v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. Apr 10, 2025)

right in breeder deer could arise via the common made subject to man's dominion."[59] The criminal law.[53] cases Williams cites relied on that rule in examining whether a wild animal could be the The Fifth Circuit has also concluded that subject of a criminal offense like Texas deer breeders lack a constitutionally protected property interest in breeder deer.[54] 17 The court described the "provisions regulating the deer breeder industry" as "extensive" and theft or criminal mischief.[60] But while a deer observed that "breeder deer belong to the state, breeder may have "qualified rights of ownership not the permittee," "the deer are only held under or possession of white-tailed deer" such that a a permit," and "[n]owhere do the statutes or person is amenable to prosecution for certain regulations state that breeder crimes involving a breeder deer, that right remains subordinate and subject to the 16 Legislature's authority to regulate the deer breeding industry.[61] In this context, a possessory deer become the property of a permit holder."[55] right does not equate to a vested right.

Using the common law rule of capture as a Williams looks to the bankruptcy context for backstop, Williams argues that the Parks and support, but a similar rationale applies. Although Wildlife Code "does not deprive the deer breeder a deer breeder may have a "possessory interest" in of his common law property interest in the the deer and an "expectancy interest in profits breeder deer through legal captivity and derived from those deer" such that the deer may dominion," but instead "simply imposes be considered property of a bankruptcy estate, it conditions on how and when deer may be held does not necessarily follow that those interests captive." Williams points to Section 43.357, which give rise to a heightened vested property interest says a deer breeder may "sell" and "transfer to entitled to due process protection.[62] another person" live breeder deer. But while breeder deer can be sold and transferred, they In his last attempt to bypass the Parks and may be "purchased" and "received"-the logical Wildlife Code in favor of the common law, consequences of being sold and transferred-"only Williams argues that the definition of "game for the purposes of liberation or holding for animal" in Section 63.001-and by extension propagation."[56] Deer sold or transferred are thus Section 63.002's declaration that white-tailed either freed (onto a release site[57]) or continue on deer cannot be possessed unless otherwise as breeder deer. In the latter scenario, the provided by the Code-"does not control the issue Legislature clarified in the very same provision of property rights in wild animals while in that deer may be held "for propagation … only captivity."[63] But Wiley involved a conversion after a deer breeder's permit is issued."[58] claim between private parties, not a due process- William's theory that deer breeders have a vested based allegation by a property interest in breeder deer under some common-law authority running parallel to, but 18 not inconsistent with, Subchapter L is incompatible with the Legislative scheme deer breeder.[64] "[G]eneral language in judicial completely regulating deer breeding. opinions should be read as referring in context to circumstances similar to the circumstances then Approaching the issue from a different before the Court and not referring to quite common-law angle, Williams argues that deer different circumstances that the Court was not breeders obtain a vested property right in breeder then considering."[65] deer because "wild animals become property when removed from their natural liberty and Tex. Parks & Wildlife Dep't v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. Apr 10, 2025)

Williams finally contends that he has a power to take deer for disease diagnosis or protected property interest in his deer breeder's prevention expressly applies to deer held in permit, but the Department has not sought to captivity pursuant to a permit issued under revoke his permit, and so that argument is not Subchapter L.[72] ripe for consideration. The other guiding statutes are found in the We sustain this part of the Department's first same chapter that governs deer breeder permits. issue. Section 43.953, entitled, "Destruction of Deer," contains three limitations on the Department's C. Ultra Vires authority to take deer for disease diagnosis or prevention: Williams gave little detail into the specifics of his ultra vires claim, generally averring in his live • before deer may be destroyed, the petition that Silovsky and Department officials Department "must consider the "have acted ultra vires." But he did state at the results of" an epidemiological outset of the petition that the officials acted ultra assessment conducted by a TAHC vires by planning to "kill[] all of the deer on [his] agent, if one is conducted; ranch … without providing any kind of due process hearing, without probable cause, and • to "control or prevent the spread of without exigent circumstances." Williams did not disease," deer subject to the plead a valid ultra vires claim. subchapter "may be destroyed only if the department determines that "Plaintiffs who seek to bypass sovereign the deer pose a threat to the health immunity using an ultra vires claim must plead, of other deer or other species, and ultimately prove, that the defendant including humans"; and government official acted without legal authority or failed to perform a ministerial duty."[66] • the Department "shall carry out an Williams alleged the former.[67] "An officer acts order to destroy deer after notice without legal authority if he exceeds the bounds of his granted authority or if his acts conflict with 20 the law itself."[68] But if "the actions alleged to be ultra vires were not truly outside the officer's has been provided to the permit authority or in conflict holder under Section 43.954."[73]

19 Section 43.954 requires the written notice to contain the "date of destruction," which cannot be with the law, the plaintiff has not stated a valid "sooner than the 10th day after the date of the ultra vires claim and therefore has not bypassed notice," and "an explanation of the reasons for the sovereign immunity."[69] destruction, including the results of any epidemiological assessment conducted under The Department's depopulation efforts are Section 43.953(a)," among other things.[74] governed by several statutes contained in the Parks and Wildlife Code. The first is Section None of these provisions require the 12.013. As explained, the Department's Department to conduct a hearing, possess responsibility to manage Texas wildlife includes probable cause, or establish exigent the authority to "take" deer for "disease diagnosis circumstances before destroying breeder deer. By or prevention."[70] The Legislature defined "take" failing to allege that Silovsky or some other to mean "collect, hook, hunt, net, shoot, or snare, Department official acted without authority or by any means or device."[71] The Department's Tex. Parks & Wildlife Dep't v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. Apr 10, 2025)

contrary to controlling law, Williams failed to doing anything with his land unless he agreed to plead a viable ultra vires claim.[75] "an exaction in the form of a 'herd plan.'"

Williams now argues on appeal that Silovsky "[I]t is well settled that a governmental "ignore[d] the statutory standard in section entity may be sued for inverse condemnation, by 43.953 of 'threat to the health of other deer or either a public or private landowner, for taking other species, including humans.'" As support, he the owner's property without paying just points to his own evidence presented at the compensation."[78] But a plaintiff must "establish hearing on the temporary injunction vigorously a viable takings claim" for sovereign immunity to disputing that CWD is a threat to other deer. be waived.[79] A regulatory taking "is a condition Section 43.953(a), however, plainly requires the of use so onerous that its effect is tantamount to a Department to determine that the deer identified direct for destruction pose a threat. The Department's August 3, 2023 letter notifying Williams of its 22 intent to depopulate his breeder deer reflects that determination. Williams disagrees with the appropriation or ouster."[80] Regulatory takings Department's determination, but Section 43.953 can take several different forms, but Williams's as written does not "allow third parties to second- pleadings implicate two: a Penn Central taking guess the [Department's] decision in this way."[76] and an exaction taking.[81] We address each one in Williams directs us to turn.

21 A Penn Central taking occurs when a government regulation unreasonably interferes potentially conflicting statements made by the with a landowner's use and enjoyment of his Department regarding the health impacts of CWD property.[82] This is an ad-hoc, fact-intensive on humans, but that does not mean the inquiry in which all surrounding circumstances Department did not determine that CWD poses a must be considered-an inquiry that "requires a threat to other deer. Williams lastly contends that careful analysis of how the regulation affects the the Department did not meet Section 43.953(a)'s balance between the public's interest and that of epidemiological-study requirement, but the private landowners."[83]Guiding considerations Department's letter contained a paragraph include (1) the economic impact of the regulation devoted precisely to that requirement. on the claimant, (2) the extent to which the regulation has interfered with distinct We sustain this part of the Department's first investment-backed expectations, and (3) the issue. character of the governmental action.[84] The ultimate question is whether the regulation has D. Regulatory Taking gone "too far" so as to constitute a taking.[85]

Williams also alleged that the Department's Williams did not allege a viable regulatory efforts to depopulate his breeder deer amounted takings claim premised upon the Department's to a regulatory taking of his breeding facility in depopulation efforts. To begin, we have a difficult violation of Article I, Section 17 of the Texas time understanding how euthanizing breeder deer Constitution.[77] Williams averred that he has represents a restriction on the use of Williams's made improvements to the 68-acre breeding land.[86] It is a physical act aimed at mitigating the facility and that the property cannot be easily spread of CWD, not a converted to another use. In a supplement to his petition, Williams claimed that the Department 23 took his real property by prohibiting him from restriction on how Williams uses his property. Tex. Parks & Wildlife Dep't v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. Apr 10, 2025)

Insofar as a connection can be made between the breeder deer at RW Trophy Ranch. It depopulation and property use, the Department contained all the provisions one would expect to made the difficult decision to destroy Williams's see in such a document-movement restrictions for deer in compliance with an express statutory infected deer, facility standards, record keeping, mandate to prevent the spread of disease in the and protocols for releasing deer, among other state's deer-deer that Williams possessed only things. The herd plan did authorize the because the State allowed him to do so. If not for Department to enter onto Williams's property, this important responsibility, the Department but only to perform its responsibilities relating to would have no reason to set foot onto his land. CWD. There is nothing in the herd plan (or the When it does, the interference is limited in both record) to support a claim that the Department duration and scope. The interference to the land limited Williams's land ownership or financial is similarly limited after depopulation, as interests other than breeding deer in conditions Williams still has a deer breeding permit and may that threatened the State's interest in wildlife continue to operate his breeding facility and management. Williams would have preferred to produce income. We also cannot ignore that release his bucks to be hunted by individuals Williams rejected the Department's early efforts participating in the "wounded heroes" program, to mitigate the spread of CWD without using total but that was a personal preference related to the depopulation. We are not insensitive to the disposition of his breeder deer, not his land.[89] frustration and disappointment that comes with depopulation, including the potential financial We sustain this part of the Department's first impact resulting from depopulation, but our task issue. is to weigh the public interest against the private ones, and the former significantly outweighs the E. Right to Hunt latter, especially considering the Department's representations that the CWD outbreak at RW Williams alleged that the Department's Trophy Ranch was the worst in Texas history. depopulation efforts under Section 43.953 of the Giving due consideration to all relevant Parks and Wildlife code cannot be squared with, considerations and circumstances, the and are thus violative of, Article I, Section 34 of Department's depopulation efforts did not go "too the Texas Constitution, which provides that far" so as to rise to a regulatory taking.[87] "[h]unting and fishing are preferred methods of managing and controlling In a supplemental petition, Williams claimed that the Department took his land by "prohibiting 25 [him] from doing anything with the land unless wildlife." Tex. Const. art. 1, § 34(b). According to he agree[d] to an exaction in the form of a 'herd Williams, the Department "should be called to plan' that would convey to the State an interest in task to explain why the alternative of harvest is land akin to a restrictive covenant for which the not considered, even for deer that test positive for state would pay nothing." In an exaction takings or are exposed to CWD." case, "the landowner is not simply denied or restricted in some Sovereign immunity does not bar a suit for equitable relief based upon an alleged violation of 24 the Texas Constitution, City of Elsa v. M.A.L., 226 desired use of his property," but rather "some S.W.3d 390, 392 (Tex. 2007), but immunity is action … is required of the landowner as a waived only insofar as the plaintiff pleads a viable condition to obtaining government approval."[88] constitutional claim. Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 13 (Tex. 2015); The herd plan attached to Williams's original Eriksen v. Nelson, 2025 WL 351632, at *4 (Tex. petition sought to mitigate the spread of CWD in App.- 15th Dist. Jan 30, 2025, no pet.). "To satisfy Tex. Parks & Wildlife Dep't v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. Apr 10, 2025)

this showing, plaintiffs must do more than merely free speech rights. Nor does he offer any name a cause of action and assert the existence of argument or explanation how the Department's a constitutional violation." Hughs v. Dikeman, compliance with Section 43.954(b)(2) is capable 631 S.W.3d 362, 373 (Tex. App.-Houston [14th of having anything other than an "incidental Dist.] 2020, no pet.). impact" on his speech, which is "not sufficient to bring the First Amendment into play."[93] The constitutional right to hunt is subject "to laws or regulations to conserve and manage We sustain this part of the Department's first wildlife and preserve the future of hunting and issue. fishing." Tex. Const. art. 1, § 34(a). Section 43.953, which authorizes the Department to G. Equal Protection destroy deer to "control or prevent the spread of disease," is one such law.[90] Williams did not To state a viable equal-protection claim plead a viable constitutional claim because the under the Texas Constitution, see Tex. Const. art. Constitution expressly contemplates the very 1, § 3, a plaintiff must show that he was "treated action that forms the basis of his complaint. differently from others similarly situated." Klumb, 458 S.W.3d at 13. And when "neither a suspect We sustain this part of the Department's first classification nor a fundamental right is issue. involved," the plaintiff "must further demonstrate that the challenged decision is not rationally F. Free Speech related to a legitimate governmental purpose." Id. Williams made neither showing. He alleged that Williams alleged that the Department the violated his free speech rights as guaranteed by Article 1, Section 8 of the Texas Constitution[91] by 27 stating in its Department treats deer breeding facilities with 26 low fences differently than deer breeding facilities with higher fences, but the relevant inquiry for August 3, 2023 notice that it would exclude him purposes of waiving sovereign immunity here is from his property during the deer depopulation. whether the Department treated other facilities Williams objected that doing so would "effectively with high rates of CWD differently than RW prohibit[] him from videotaping the kill event." Trophy Ranch.[94] Williams made no such allegations. Nor has he made any showing that The Department's letter stated that its depopulation is not somehow rationally related to personnel would "establish a restricted access a legitimate government purpose. zone on the property while conducting [the depopulation] operation to maintain a safe We sustain the remainder of the working environment." The Department included Department's first issue. the statement to comply with Section 43.954(b) of the Parks and Wildlife Code, which requires a III. Temporary Injunction notice of deer destruction to explain "any access restrictions imposed on the facility or acreage The Department also challenges the trial covered by the permit during the destruction of court's order issuing the temporary injunction. A the deer."[92]Williams does not dispute the court lacking jurisdiction cannot award injunctive Department's claim that restricting access to the relief, not "even temporarily."[95] Because the facility while wild deer are being shot was Department's sovereign immunity remains intact, necessary to protect the safety of Williams and and the trial court lacks subject-matter others, not a prior restraint or other restriction on Tex. Parks & Wildlife Dep't v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. Apr 10, 2025)

jurisdiction, we also reverse the injunction against [8] See Tex. Parks & Wildlife Dep't v. RW Trophy

it. Ranch, Ltd., 2022 WL 1314692, at *2 (Tex. App.- Dallas May 3, 2022, pet. denied). CONCLUSION [9] The trial court noted, "I think that a lot of this

Having sustained the Department's issues, science was quite frankly unscientific." we reverse the trial court's orders denying the plea to the jurisdiction and issuing the temporary Appellees' Motion for Interim Order Under [10]

injunction and render a judgment of dismissal in TRAP 29.3, Tex. Parks & Wildlife Dep't v. RW favor of the Department and Silovsky. Trophy Ranch, Ltd., No. 05-23-00906-CV (Tex. App.-Dallas Sept. 18, 2023). --------- [11] Order, No. 05-23-00906-CV (Tex. App.-Dallas

Notes: October 9, 2023).

[1] Tex. Parks & Wildlife Code § 12.001. [12] Petition for Writ of Mandamus & Emergency

Motion for Temporary Relief, In re Tex. Parks & [2] Id. § 12.013(a). Wildlife Dep't, No. 23-0966 (Tex. Nov. 30, 2023). [3]A transmissible spongiform encephalopathy [13] Order, In re Tex. Parks & Wildlife Dep't, No.

(TSE) is an infectious condition that "causes holes 23-0966 (Tex. April 5, 2024). in the brain." Other examples include mad cow [14] Appellants' Advisory Regarding Depopulation disease (Bovine Spongiform Encephalopathy) and scrapie in sheep. of Appellees' Deer Breeding Facility, No. 05-23- 00906-CV (Tex. App.-Dallas June 6, 2024). [4]See Tex. Parks & Wildlife Code §§ 12.013(a) [15] Order, No. 05-23-00906-CV (Tex. App.-Dallas (authorizing TPWD to "take" deer for disease diagnosis or prevention), 43.953(b) (authorizing June 11, 2024). destruction of deer to "control or prevent the [16] See Transfer of Case From the Fifth Court of spread of disease"). Appeals to the Fifteenth Court of Appeals, Misc. [5] Id. §§ 43.364, 43.351-.369, 63.001(a)-.002. Docket No. 24-9089 (Tex. Oct. 21, 2024). "Breeder deer" means "a white-tailed deer or [17] The Department moved to dismiss its mule deer legally held under a permit authorized mandamus petition in the Texas Supreme Court, by this subchapter." Id. § 43.351(1). stating that although its "jurisdictional challenge [6] Williams and RW Trophy Ranch also sued the remains pending at Texas's Fifth Court of Texas Animal Health Commission (TAHC) and Appeals, there is no remaining issue for the Court Executive Director Andy Schwartz relating to a in this case." Relators' Motion to Dismiss for quarantine order issued by TAHC. Mootness, In re Tex. Parks & Wildlife Dep't, No. 23-0966 (Tex. July 12, 2024). The petition [7] Rebuffing the Department's charge of forum remains pending. shopping, Williams asserted that he had [18] Williams argues that he "continues to have a nonsuited (by amended petition) the claims in the Travis County suit regarding "the viable interest in the equitable relief he seeks" constitutionality of the TPWD kill statute and its because the Department may enter upon and kill threatened effect on Plaintiffs' business and land, deer located on his 1500-acre release site that in favor of refiling in Kaufman County." surrounds his breeding facility, but there is no record support for this contention. Indeed, each of the letters issued by the Department noticing its intent to depopulate has been directed at the Tex. Parks & Wildlife Dep't v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. Apr 10, 2025)

deer held in Williams's breeding facility (Facility [29] Crown Distrib. LLC, 647 S.W.3d at 655; see

170B), not at any deer in his release site (Facility Town of Castle Rock v. Gonzales, 545 U.S. 748, 170R). 756 (2005) (explaining that interest is not protected by due process "if government officials [19] Matzen v. McLane, 659 S.W.3d 381, 387 (Tex. may grant or deny it in their discretion"). 2021); see Tex. Parks & Wildlife Code § 11.011. [30] Klumb v. Houston Mun. Emps. Pension Sys., [20] Tex. Dep't of Parks & Wildlife v. Miranda, 133 458 S.W.3d 1, 17 (Tex. 2015). S.W.3d 217, 225-26 (Tex. 2004). [31] Tex. Parks & Wildlife Code §§ 1.011(a), 1.101(4) [21] Id. at 226. ("'Wild' when used in reference to an animal, [22] Id. means a species, including each individual of a species, that normally lives in a state of nature [23] Matzen, 659 S.W.3d at 388. and is not ordinarily domesticated"); See Crowder v. USDA, 2023 WL 4824931, at *1 (W.D. [24]Williams alleged that Section 43.953 of the Tex. July 27, 2023). Parks and Wildlife Code violates procedural due process, both facially and as applied, because it [32]Tex. Parks & Wildlife Code §§ 63.001(a), does not require a hearing before depopulation. 63.002; see also id. § 43.353. Citing Patel v. Tex. Dep't of Licensing & [33] Id. §§ 43.351-.369, 43.601-.607. Regulation, 469 S.W.3d 69 (Tex. 2015), Williams also alleged that the "summary seizure and [34] Id. §§ 43.351-.369.

destruction of breeder deer" violates substantive due process because it is an "unreasonable [35] Id. § 43.351(1), (4).

regulation in light of the facts related to CWD." [36]Id. § 43.364; see id. § 43.352(a) ("The [25] Tex. Const. art. I, § 19. There is no meaningful department shall issue a permit to a qualified distinction between Texas's due course of law person to possess live breeder deer in captivity."). guarantee and the federal due process clause. See [37] Id. § 43.352(b)-(d). Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995). [38] Id. § 43.3561.

[26] Honors Acad., Inc. v. Tex. Educ. Agency, 555 [39] Id. §§ 43.357(a)(2), 43.362. S.W.3d 54, 61 (Tex. 2018). Our focus here is on a property interest. [40] Id. § 43.357(b).

[27]Tex. Dep't of State Health Servs. v. Crown [41] Id. § 43.358. Distrib. LLC, 647 S.W.3d 648, 655 (Tex. 2022). [42] Id. § 43.359. [28] Honors Acad., 555 S.W.3d at 61; see City of

Grapevine v. Muns, 651 S.W.3d 317, 345 (Tex. [43] Id. § 43.360.

App.-Fort Worth 2021, pet. denied) (stating right [44] Id. § 43.361(a). is vested when it "has some definitive, rather than merely potential existence"); Vested, Black's Law [45] Id. § 43.364; see id. § 43.366(a) (breeder deer Dictionary (11th ed. 2019) ("Having become a "are subject to all laws and regulations of this completed, consummated right for present or state pertaining to deer). future enjoyment; not contingent; unconditional; absolute"). [46] Id. §§ 63.001, .002.

[47] Id. §§ 12.013(a), 43.953. Tex. Parks & Wildlife Dep't v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. Apr 10, 2025)

[48] See, e.g., 31 Tex. Admin. Code §§ 65.602(a), State v. Bartee, 894 S.W.2d 34, 43 (Tex. App.-San 65.603(c), (d). Antonio 1994, no pet.) ("A white-tailed deer in its natural state of liberty cannot be the subject of the [49] Williams expressly agreed to comply with the theft and criminal mischief statutes."). statutes and regulations governing deer breeding when he submitted his application for a permit. [61]Bartee, 894 S.W.2d at 43 ("The State, as trustee, has the power to regulate the taking and [50] See Crown Distrib. LLC, 647 S.W.3d at 655. acquisition of property in wild animals by [51] 581 S.W.3d 374, 394 (Tex. App.-Austin 2019, individuals by imposing such restrictions and conditions as the legislature may see fit."). pet. denied). [62] In re Wheeler, 431 B.R. 158, 160, 162 (N.D. [52]Id. at 390-92 (reasoning that public trust Tex. 2005). doctrine-codified in Parks and Wildlife Code Section 1.011(a)-requires an animal to be "legally [63] See Wiley v. Baker, 597 S.W.2d 3, 5 (Tex. Civ.

removed" from the wild before property rights App.-Tyler 1980, no writ) (reasoning that the could attach to it, but the Legislature foreclosed "statutory definition of 'game animal'" was "not that occurrence by prohibiting a person from applicable" to "whether appellant had a property possessing deer without a permit). right in the elk at the time appellee shot it"). [53] Id. at 393 (reasoning that Sections 43.364 and [64] Id. at 4.

43.366, which make breeder deer subject to the "laws" of this state, refer not to the common law, Turkiye Halk Bankasi A.S v. United States, [65]

but to the law relating to wild animals and their 598 U.S. 264, 278 (2023). status as public property, and that "allowing [66] Matzen, 659 S.W.3d at 388. private property rights to arise in breeder deer is incompatible with the Legislature's direction that [67] See City of El Paso v. Heinrich, 284 S.W.3d breeder deer are 'held under a permit'"). 366, 373 (Tex. 2009) (confirming that ultra vires [54] Anderton v. Tex. Parks & Wildlife Dep't, 605 suits proceed against government actors in their Fed.Appx. 339, 346-47 (5th Cir. 2015) ("If official capacity). government officials may grant or deny the [68] Matzen, 659 S.W.3d at 388. interest in their discretion, the interest is not protected by due process."). [69] Id.

[55] Id. at 344, 348. [70] Tex. Parks & Wildlife Code § 12.013(a).

[56] Tex. Parks & Wildlife Code § 43.364. [71] Id. § 1.101(5) (emphasis added).

[57] Id. § 43.361(a). [72] Id. §§ 43.366(a) ("breeder deer held under a

deer breeder's permit are subject to all laws and [58]Id. § 43.364. A permit is even needed to regulations of this state pertaining to deer except "purchase" or "obtain" or "accept" live breeder as specifically provided in this subchapter"); deer. Id. § 43.362. 43.951(1). See Runnels v. State, 213 S.W.2d 545, 547 [59] [73] Id. § 43.953. (Tex. Crim. App. 1948). [74] Id. § 43.954(b). [60] Id. ("Wild animals are not subject to theft until

they become the property of an owner."); Jones v. [75] We do not mean to suggest that a deer breeder State, 45 S.W.2d 612, 614 (Tex. Crim. App. 1931); could never plead a viable ultra vires claim, but Tex. Parks & Wildlife Dep't v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App. Apr 10, 2025)

on this record and with these arguments, [88]Town of Flower Mound v. Stafford Estates Williams did not do so. Ltd. P'ship, 71 S.W.3d 18, 30 (Tex. App.- Fort Worth 2002) (citing Dolan v. City of Tigard, 512 [76]See Schroeder v. Escalera Ranch Owners' U.S. 374 (1994)), aff'd 135 S.W.3d 620 (Tex. Ass'n, Inc., 646 S.W.3d 329, 335 (Tex. 2022) 2004)). (holding that zoning and planning commission did not act ultra vires by complying with legal [89] Insofar as Williams's petition can be construed

duty to determine whether plat conformed to to raise a physical type of regulatory taking, the law). trial court properly rejected that theory because there is no allegation or indication that [77] Unlike with breeder deer, it is well established depopulation would cause a "permanent physical that property owners have a vested interest in occupation" of Williams's land. See Loretto v. their land. See Bd. of Regents of State Colls. v. Teleprompter Manhattan CATV Corp., 458 U.S. Roth, 408 U.S. 564, 572 (1972). 419, 426 (1982); Sheffield, 140 S.W.3d at 671. [78] Hidalgo Cnty. Water Improvement Dist. No. 3 [90] Tex. Parks & Wildlife Code § 43.953(b).

v. Hidalgo Cnty. Irrigation Dist. No. 1, 669 S.W.3d 178, 187 (Tex. 2023). [91] "Every person shall be at liberty to speak, write

or publish his opinions on any subject, being [79] Tex. Dep't of Transp. v. A.P.I. Pipe & Supply, responsible for the abuse of that privilege; and no LLC, 397 S.W.3d 162, 166 (Tex. 2013). law shall ever be passed curtailing the liberty of [80] City of Houston v. Carlson, 451 S.W.3d 828, speech or of the press." Tex. Const. art. 1, § 8. 831 (Tex. 2014); see Palazzolo v. Rhode Island, [92] Tex. Parks & Wildlife Code § 43.954(b)(2).

533 U.S. 606, 617 (2001) (stating regulatory taking occurs "when government actions do not [93] Tex. Dep't of Ins. v. Stonewater Roofing, Ltd.,

encroach upon or occupy the property yet still 696 S.W.3d 646, 658 (Tex. 2024). affect and limit its use to such an extent that a taking occurs"). [94] See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 939 (Tex. 1998) (requiring others to [81] See Lingle v. Chevron U.S.A., Inc., 544 U.S. be similarly situated in a relevant way). 528, 548 (2005) (identifying a "physical taking," a [95] In re Abbott, 601 S.W.3d 802, 805 (Tex. 2020) "Lucas-type total regulatory taking," a "Penn Central" taking, and a "land-use exaction"); (orig. proceeding). Sheffield Dev. Co. v. City of Glenn Heights, 140 --------- S.W.3d 660, 671-72 (Tex. 2004).

[82] Sheffield, 140 S.W.3d at 671-72.

[83] Id. at 672.

[84] Id.

[85] Id. at 670 (quoting Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 415 (1922)).

[86] See City of Houston, 451 S.W.3d at 831 ("Yet

the respondents do not contest any of Houston's property-use restrictions.").

[87] Sheffield, 140 S.W.3d at 670. Texas a & M University System v. Koseoglu, 233 S.W.3d 835, 50 Tex. Sup.Ct. J. 1213 (Tex. 2007)

233 S.W.3d 835 Experiment Station ("Texas A & M," collectively), TEXAS A & M UNIVERSITY SYSTEM, and Mark McLellan, his supervisor, for allegedly Texas Engineering Experiment Station, breaching his employment contract. Both Texas A and Dr. Mark McLellan, Petitioners, & M and McLellan filed pleas to the jurisdiction v. asserting sovereign immunity and challenging the Dr. Sefa KOSEOGLU, Respondent. trial court's jurisdiction to hear Koseoglu's claims. No. 05-0321. The trial court denied the pleas to the jurisdiction, Supreme Court of Texas. and Texas A & M and McLellan appealed. The Argued November 14, 2006. court of appeals reversed the trial court's Delivered September 7, 2007. judgment with respect to Texas A & M's appeal, holding Texas A & M's sovereign immunity from [233 S.W.3d 836] suit barred Koseoglu's breach of contract claim. 167 S.W.3d 374, 384 (Tex.App.-Waco 2005, pet. Greg Abbott, Atty. Gen., Barry Ross McBee, granted). Rather than dismiss Koseoglu's claim Edward D. Burbach, Office of Atty. Gen., Jeffrey against Texas A & M, the court of appeals L. Rose, Atty. Gen., Robert Francis Johnson, concluded Koseoglu deserved an opportunity to Assistant Atty. Gen., Don Wayne Cruse Jr., amend his pleadings and therefore remanded the Assistant Solicitor Gen., and Rafael Edward Cruz, matter to the trial court. Id. With respect to Office of Atty. Gen., Austin, for Petitioner. McLellan's appeal, the court of appeals held it was without jurisdiction to decide the appeal because, [233 S.W.3d 837] as a state official, McLellan had no statutory right under section 51.014(a)(8) of the Texas Civil Wayne T. Rife, Law Offices of Wayne T. Rife, Practice and Remedies Code to appeal the trial P.C., College Station, TX, for Respondent. court's denial of a plea to the jurisdiction premised on sovereign immunity. Id. We affirm Justice GREEN delivered the opinion of the the court of appeals' judgment with respect to Court. Texas A & M's appeal, but reverse its remand order and dismiss Koseoglu's claim against Texas In this case we consider whether a plaintiff A & M. With respect to McLellan's appeal, we who, on appeal, loses a plea to the jurisdiction reverse the court of appeals' judgment and, based on sovereign immunity is entitled to a rendering the judgment the court of appeals remand for an opportunity to cure the should have rendered, we dismiss Koseoglu's jurisdictional pleading defect. We conclude that claim against McLellan. when a pleading cannot be cured of its jurisdictional defect, a plaintiff is not entitled to I. Background amend. Additionally, we must interpret section 51.014(a) of the Texas Civil Practice and In 1999, while still employed by Texas A & M, Remedies Code to determine whether appellate Koseoglu began moonlighting for a private courts have jurisdiction to consider a government business enterprise he partially owned. In early official's appeal of a trial court's denial of a plea to 2002, soon after McLellan became Koseoglu's the jurisdiction based on sovereign immunity. We supervisor, Koseoglu requested permission to conclude that Section 51.014(a)(8) vests appellate continue his outside employment. McLellan courts with such jurisdiction. denied Koseoglu's request. Koseoglu nevertheless continued the outside employment and, in Sefa Koseoglu worked as a contract employee October 2002, McLellan informed Koseoglu that at the Texas Engineering Experiment Station, his employment would be terminated at the end which is a division of the Texas A & M University of the following month. Seeking to negotiate the System. Koseoglu sued the Texas A & M terms of his dismissal, Koseoglu sent a letter to University System, the Texas Engineering the general counsel of the Texas A & M University Texas a & M University System v. Koseoglu, 233 S.W.3d 835, 50 Tex. Sup.Ct. J. 1213 (Tex. 2007)

System on December 19, 2002. In the letter, M University—Kingsville v. Lawson, 87 S.W.3d Koseoglu proposed that he be permitted to 518 (Tex.2002), because Koseoglu's underlying remain in his position until August 2003 and Section 1983 claim was not one for which receive certain other financial and non-financial sovereign immunity had been waived. 167 S.W.3d benefits. The letter included a blank signature at 380. Thus, the court of appeals held Koseoglu's line, under the word "AGREED," which was then breach of contract claim was barred by Texas A & signed by an attorney in the Texas A & M general M's sovereign immunity from suit and remanded counsel's office. On January 14, the case to the trial court, suggesting it might be possible for Koseoglu to state some entirely [233 S.W.3d 838] different claim for which sovereign immunity might have been waived "with respect to the 2003, Koseoglu's counsel sent a proposed draft of termination of the employer-employee the final agreement to the Texas A & M general relationship." Id. at 383. With respect to counsel's office. The final agreement was never McLellan's appeal, the court of appeals held that, signed. Koseoglu's counsel later wrote to the while section 51.014(a)(8) of the Texas Civil Texas A & M general counsel's office that, by Practice and Remedies Code vested it with refusing to execute the January 14 settlement interlocutory appellate jurisdiction over a documents, the Texas A & M University System jurisdictional plea filed by state officials whose was in breach of the December 19 "agreement." positions are derived from the Texas Constitution, the statute did not give it authority to review In April 2003, Koseoglu sued McLellan and interlocutory orders on jurisdictional pleas filed Texas A & M for breach of contract, asserting they by all other state officials, such as McLellan. Id. at breached the alleged December 19 agreement 377-79. Both Texas A & M and McLellan then between Koseoglu and Texas A & M. Texas A & M timely appealed the court of appeals' decision to and McLellan each pled the affirmative defense of this Court. sovereign immunity and filed pleas to the jurisdiction. Koseoglu filed a motion for summary Texas A & M and McLellan argue the court of judgment, contending in part that Texas A & M's appeals erred on dual grounds. First, they and McLellan's sovereign immunity had been contend the court of appeals erred in concluding waived for his breach of contract action because it it was without interlocutory appellate jurisdiction had been waived for an underlying action under to review the jurisdictional plea filed by McLellan, 42 U.S.C. § 1983 in which Koseoglu asserted a a state official acting in his official capacity. denial of due process with respect to his Second, they argue the court of appeals should employment contract with Texas A & M. Four have dismissed Koseoglu's breach of contract months after Texas A & M and McLellan filed claim after it concluded it was barred by sovereign their pleas to the jurisdiction, the trial court immunity, rather than remand it to the trial court. denied them. Before the trial court ruled on We first consider Texas A & M's and McLellan's Koseoglu's motion for summary judgment, Texas second issue. A & M and McLellan each filed an interlocutory appeal. The court of appeals reversed the trial II. Koseoglu's Suit Against Texas A & M court's denial of Texas A & M's plea to the jurisdiction and dismissed McLellan's Koseoglu argues Texas A & M waived its interlocutory appeal for want of jurisdiction. 167 sovereign immunity from suit on his Section 1983 S.W.3d at 384. The court of appeals concluded due process claims and therefore, under Lawson, that governmental entities do not waive their 87 S.W.3d at immunity from suit in Texas by accepting benefits under a contract, and that Koseoglu's pleadings [233 S.W.3d 839] against Texas A & M did not fit the narrow exception suggested by the plurality in Texas A & Texas a & M University System v. Koseoglu, 233 S.W.3d 835, 50 Tex. Sup.Ct. J. 1213 (Tex. 2007)

519-23, Texas A & M's immunity has been waived alleged defects in his pleadings, but before the in this breach of contract case as well. In Lawson, trial court takes any definitive action. a plurality of this Court held a plaintiff's claim for Accordingly, Texas A & M contends, because breach of an agreement settling his underlying Koseoglu had four months to amend his pleadings Whistleblower Act claim was encompassed within after it filed its jurisdictional plea, no further the Legislature's decision to waive immunity for opportunity is warranted. Otherwise, Texas A & M Whistleblower Act claims. Id. at 522-23. But the argues, suits against governmental entities could court of appeals correctly held that the State and be appealed at least twice before final judgment— its officials sued in their official capacities are once to obtain a reversal and remand, and a immune from money damages sought in a Section second time after the remand is ordered. 1983 claim unless they waive their immunity. 167 S.W.3d at 380 (citing Will v. Mich. Dep't of St. The court of appeals sided with Koseoglu, Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 concluding "a plaintiff may stand on his pleadings L.Ed.2d 45 (1989)). It is up to the Legislature to in the face of a plea to the jurisdiction unless and institute such a waiver, and to date it has not seen until a court determines that the plea is fit to do so. See Tex. Natural Res. Conservation meritorious." 167 S.W.3d at 383 (citing County of Comm'n v. IT-Davy, 74 S.W.3d 849, 857 Cameron, 80 S.W.3d at 559). Thereafter, the (Tex.2002). Thus, as the court of appeals held, court of appeals held, the plaintiff must be given Koseoglu never had an actionable Section 1983 "`a reasonable opportunity to amend' his claim against Texas A & M and, therefore, his pleadings to attempt to cure the jurisdictional pleadings are deficient in the sense that Lawson defects found" unless the pleadings are incurably is not implicated. defective. Id. (citing Sykes, 136 S.W.3d at 639; Tex. Dep't Of Transp. v. Ramirez, 74 S.W.3d 864, However, rather than dismiss Koseoglu's 867-68 (Tex. 2002)). Thus, the court of appeals lawsuit against Texas A & M, the court of appeals concluded, Koseoglu has not been given a reversed the trial court's denial of Texas A & M's reasonable opportunity to amend his pleadings plea to the jurisdiction and remanded the cause to because the trial court never found merit in Texas the trial court so that Koseoglu could amend his A & M's jurisdictional plea. Id. pleadings. 167 S.W.3d at 383-84. It is true that a plaintiff deserves "a reasonable opportunity to On this point, we generally agree with the amend" unless the pleadings affirmatively negate court of appeals. Texas A & M's proposed rule the existence of jurisdiction. Harris County v. would essentially allow governmental entities the Sykes, 136 S.W.3d 635, 639 (Tex.2004); Tex. unjust advantage of being not only a litigant, but Dep't of Parks and Wildlife v. Miranda, 133 also the judge S.W.3d 217, 226-27 (Tex.2004); County of Cameron v. Brown, 80 S.W.3d 549, 555 [233 S.W.3d 840] (Tex.2002). Thus, the issue is whether Koseoglu has already been afforded that opportunity. If not, of the plaintiff's pleadings. We decline to adopt we agree that he deserves the opportunity if his such a rule. Thus, we agree that Koseoglu pleadings can be cured. deserves the opportunity to amend his pleadings if the defects can be cured. Koseoglu argues a plaintiff is not required to amend his pleadings until they are determined by But Koseoglu's pleading defects cannot be a court to be deficient. Thus, he contends he cured, and he has made no suggestion as to how should now be provided an opportunity to amend. to cure the jurisdictional defect. As is the case Texas A & M, on the other hand, argues the with special exceptions, a pleader must be given plaintiff's opportunity to amend should come an opportunity to amend in response to a plea to after the governmental entity files its plea to the the jurisdiction only if it is possible to cure the jurisdiction, which puts the plaintiff on notice of pleading defect. See Baylor Univ. v. Sonnichsen, Texas a & M University System v. Koseoglu, 233 S.W.3d 835, 50 Tex. Sup.Ct. J. 1213 (Tex. 2007)

221 S.W.3d 632, 635 (Tex.2007) ("Generally, Absent the State's consent to suit, a trial court when the trial court sustains special exceptions, it has no jurisdiction over claims against the State. must give the pleader an opportunity to amend Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, the pleading, unless the pleading defect is of a 638-39 (Tex.1999). Appellate courts have type that amendment cannot cure."). Remanding jurisdiction to consider immediate appeals of this case would serve no legitimate purpose interlocutory orders only if a statute explicitly because Koseoglu's underlying claim is a breach provides such jurisdiction. Stary v. DeBord, 967 of contract claim. Merely pleading more facts in S.W.2d 352, 352-53 (Tex. 1998). In this case, the support of the breach of contract claim will not court of appeals held it was without jurisdiction to overcome Texas A & M's immunity from suit. hear McLellan's appeal pursuant to section Koseoglu advances a waiver-by-conduct argument 51.014(a)(8) of the Texas Civil Practice and (i.e., that Texas A & M waived its immunity from Remedies Code. 167 S.W.3d at 379. This question suit by accepting benefits under its alleged of jurisdiction is a question of law, which we contract with Koseoglu), but we have consistently review de novo. State v. Holland, 221 S.W.3d 639, rejected that position and held that "the State 642 (Tex.2007). does not waive its immunity from a breach-of- contract action by accepting the benefits of a Our sole objective in construing Section contract." Gen. Servs. Comm'n v. Little-Tex 51.014(a)(8) is to give effect to the Legislature's Insulation Co., 39 S.W.3d 591, 598 (Tex.2001); intent. Monsanto Co. v. Cornerstones Mun. Util. see, e.g., Catalina Dev. Co. v. County of El Paso, Dist., 865 S.W.2d 937, 939 (Tex.1993). In 121 S.W.3d 704, 705-06 (Tex.2003); Travis determining the Legislature's intent, we begin by County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, looking to the plain meaning of the statute's 248 (Tex.2002); IT-Davy, 74 S.W.3d at 860; Federal Sign v. Tex. S. Univ., 951 S.W.2d 401, [233 S.W.3d 841] 408 (Tex. 1997). And absent special statutory permission, a party cannot pursue a breach of words. Liberty Mut. Ins. Co. v. Garrison contract action against the State without first Contractors, Inc., 966 S.W.2d 482, 484 obtaining consent from the Legislature under (Tex.1998). Section 51.014(a) contains two chapter 107 of the Texas Civil Practice and provisions that could arguably be relevant to Remedies Code. Little-Tex, 39 S.W.3d at 597 interlocutory appeals of jurisdictional decisions (concluding that "there is but one route to the relating to sovereign immunity: courthouse for breach-of-contract claims against A person may appeal from an interlocutory the State, and that route is through the order of a district court, county court at law, or Legislature."). Accordingly, the court of appeals county court that: erred when it concluded Koseoglu, who has not obtained legislative consent to sue, may be able to .... state a cause of action for which sovereign immunity has been waived and remanded the (5) denies a motion for summary judgment cause to give Koseoglu an opportunity to amend. that is based on an assertion of immunity by an See Miranda, 133 S.W.3d at 228 (instructing that individual who is an officer or employee of the a plaintiff's suit should be dismissed when either state or a political subdivision of the state; the pleadings alone or the jurisdictional evidence demonstrates that the plaintiff's suit incurably .... falls outside any waiver of sovereign immunity). (8) grants or denies a plea to the jurisdiction III. Appellate Jurisdiction Over McLellan's by a governmental unit as that term is defined in Interlocutory Appeal Section 101.001; Texas a & M University System v. Koseoglu, 233 S.W.3d 835, 50 Tex. Sup.Ct. J. 1213 (Tex. 2007)

.... few narrowly drawn situations, there is considerable conflict among the courts of appeals Section 101.001(3) of the Civil Practice and about when state officials qualify to do so. Some Remedies Code defines "governmental unit" as: courts of appeals have concluded interlocutory review of a plea to the jurisdiction is not available (A) this state and all the several agencies of under Section 51.014(a)(8) when state officials are government that collectively constitute the sued in their official capacities because a state government of this state, including other agencies official is an individual rather than "a bearing different designations, and all governmental unit." See, e.g., Castleberry Indep. departments, bureaus, boards, commissions, Sch. Dist. v. Doe, 35 S.W.3d 777, 780 (Tex. App.- offices, agencies, councils, and courts; Fort Worth 2001, pet. dism'd w.o.j.); Dallas County Cmty. Coll. Dist. v. Bolton, 990 S.W.2d (B) a political subdivision of this state, 465, 467 (Tex.App.-Dallas 1999, no pet.); Univ. of including any city, county, school district, junior Houston v. Elthon, 9 S.W.3d 351, 354 (Tex.App.- college district, levee improvement district, Houston [14th Dist.] 1999, pet. dism'd w.o.j.). A drainage district, irrigation district, water second group has held all state officials are improvement district, water control and entitled under Section 51.014(a)(8) to appeal a improvement district, water control and trial court's interlocutory ruling on a preservation district, freshwater supply district, jurisdictional plea because a state official qualifies navigation district, conservation and reclamation district, soil conservation district, communication [233 S.W.3d 842] district, public health district, and river authority; as a "governmental unit" in the sense that he (C) an emergency service organization; and stands in the shoes of the State. See, e.g., De Mino v. Sheridan, 176 S.W.3d 359, 365 (Tex.App.- (D) any other institution, agency, or organ of Houston [1st Dist.] 2004, no pet.); Smith v. Lutz, government the status and authority of which are 149 S.W.3d 752, 756 (Tex.App.-Austin 2004, no derived from the Constitution of Texas or from pet.); Potter County Attorney's Office v. Stars & laws passed by the legislature under the Stripes Sweepstakes, L.L.C., 121 S.W.3d 460, 464 constitution. (Tex.App.-Amarillo 2003, no pet.); Nueces County v. Ferguson, 97 S.W.3d 205, 214-15 We strictly construe Section 51.014(a) as "a (Tex.App.-Corpus Christi 2002, no pet.). narrow exception to the general rule that only Straddling that split is the court of appeals in this final judgments are appealable." Bally Total case, which held some state officials, such as a Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 county sheriff, are entitled to appeal a trial court's (Tex.2001). interlocutory order on a plea to the jurisdiction because their positions are governmental units by Had McLellan filed a motion for summary virtue of the fact that they are derived from the judgment based on an assertion of official Texas Constitution. 167 S.W.3d at 377-79 (citing immunity, he clearly would be permitted under TEX. CONST. art. V, § 23; TEX. GOV'T CODE § Section 51.014(a)(5) to appeal an interlocutory 101.001(3)(D)). Those officials who are not so denial of his motion for summary judgment. But situated must rely instead, under the court's McLellan did not file such a motion in the trial holding, on a motion for summary judgment court and instead asserts a right under Section under Section 51.014(a)(5) because they are 51.014(a)(8) to appeal the trial court's considered individuals rather than governmental interlocutory denial of his plea to the jurisdiction. units. Id. While it is clear that the Legislature intended only a few and distinct classes of "persons" to be In arguing Section 51.014(a)(8) does not permitted to bring interlocutory appeals in only a permit state officials to appeal the trial court's Texas a & M University System v. Koseoglu, 233 S.W.3d 835, 50 Tex. Sup.Ct. J. 1213 (Tex. 2007)

denial of his plea to the jurisdiction, Koseoglu For example, Texas A & M and McLellan cite contrasts the language of Section 51.014(a)(8) Sections 51.014(a)(5) and 51.014(a)(6) as support with the language in Section 51.014(a)(5). for their proposition that only one class of Whereas Section 51.014(a)(8) permits "person" may appeal the orders described in interlocutory appeals of a trial court's grant or Section 51.014(a). Section 51.014(a)(6) permits a denial of a "plea to the jurisdiction" by a person to appeal from an interlocutory order that: "governmental unit," Section 51.014(a)(5) permits interlocutory appeals of a trial court's denial of a [233 S.W.3d 843] "motion for summary judgment" by an "individual who is an officer or employee of the denies a motion for summary judgment that state or a political subdivision of the state." The is based in whole or in part upon a claim against Legislature, Koseoglu asserts, should be or defense by a member of the electronic or print presumed to have understood the difference media, acting in such capacity, or a person whose between an "individual who is an officer or communication appears in or is published by the employee of the state," on the one hand, and "a electronic or print media, arising under the free governmental unit" on the other, when specifying speech or free press clause of the First the categories of persons that are permitted to Amendment to the United States Constitution, or employ the narrow exception to the general rule. Article I, Section 8, of the Texas Constitution, or Likewise, Koseoglu argues, the Legislature should Chapter 73. be presumed to have understood the difference between a "motion for summary judgment" as it is Thus, Section 51.014(a)(6) limits used in Section 51.014(a)(5) and a "plea to the interlocutory appeals to "members of the jurisdiction" as it is used in Section 51.014(a)(8). electronic or print media" in certain instances involving the "free speech or free press clause of But Koseoglu's premise that the class of the First Amendment to the United States persons to which Section 51.014(a)(8) applies is Constitution." It can only be read as allowing confined by the term "governmental unit" is appeals by members of the media "or a person incorrect. This becomes clear when one considers whose communication appears in or is published which terms or phrases in Section 51.014(a) by" the media. No other person would typically specify "what" can be appealed and "who" is have standing to appeal a denial of "a motion for entitled to pursue an appeal. Koseoglu argues the summary judgment that is based in whole or in "what" applicable to Section 51.014(a)(5) is "a part upon a claim against or defense by a member motion for summary judgment" and the "who" is of the electronic or print media . . . or a person "an individual who is an officer or employee of the whose communication appears in or is published state." Likewise, he argues the "what" in Section by the electronic or print media." Similarly, there 51.014(a)(8) is "a plea to the jurisdiction" and the is no other way to read Section 51.014(a)(5) than "who" is "a governmental unit." We disagree. The to conclude that only an "individual who is an text of Section 51.014(a) makes it clear that the officer or employee of the state or a political "who" applicable to each subsection is the term subdivision of the state" may appeal an "person" that appears at the beginning of the interlocutory order denying a motion for statute. There is no indication that the phrases summary judgment. The only other entity that "an individual who is an officer or employee of the would generally have standing to file such an state" or "a governmental unit" in Sections appeal would be a governmental body, but the 51.014(a)(5) and 51.014(a)(8), respectively, are words of Section 51.014(a)(5) offer no indication intended to modify the term "person." Instead, or suggestion that it applies to any entity other those phrases and others in the various than a state official, the only entity which it subsections of the statute describe exactly "what" describes. This stands to reason because an may be appealed from an interlocutory order. official sued in his individual capacity would assert official immunity as a defense to personal Texas a & M University System v. Koseoglu, 233 S.W.3d 835, 50 Tex. Sup.Ct. J. 1213 (Tex. 2007)

monetary liability, which is well suited for summary judgment, Section 51.014(a)(8) is resolution in a motion for summary judgment. deliberately made more generous in its See City of Lancaster v. Chambers, 883 S.W.2d application. There is no reason to believe the 650, 653 (Tex.1994) (discussing summary Legislature intended the statute to apply to all judgment resolution of official immunity parties who ordinarily would have standing to considerations such as whether the official acted appeal an interlocutory order granting or denying in bad faith). But an official sued in his official a jurisdictional plea with the sole exception of capacity would assert sovereign immunity. To state officials. First, such an interpretation would challenge a trial court's jurisdiction on the not comport with the text of the statute because, grounds of sovereign immunity, a party may file a just as Section 51.014(a)(8) gives no indication it plea to the jurisdiction. Tex. Dep't of Transp. v. excludes non-governmental plaintiffs, it also gives Jones, 8 S.W.3d 636, 638 (Tex.1999). Pleas to the no indication it excludes state officials. Second, jurisdiction asserting sovereign immunity are the construing Section 51.014(a)(8) to exclude state subject of Section 51.014(a)(8). officials would draw an artificial distinction between pleas filed by governmental entities and Section 51.014(a)(8) differs from Sections pleas filed by state officials asserting the entities' 51.014(a)(5) and 51.014(a)(6) because, by its plain sovereign immunity from suit, a distinction we language allowing for interlocutory appeals of believe the Legislature could not have intended. orders granting or denying pleas to the When a state official files a plea to the jurisdiction, it cannot be read as applying solely to jurisdiction, the official is invoking the sovereign a governmental unit, the entity which it describes. immunity from suit held by the government itself. Interpreting "governmental unit" to modify the It is fundamental that a suit against a state official term "persons," as Koseoglu would have us do, is merely "another way of pleading an action would preclude an aggrieved plaintiff, who is against the entity of which [the official] is an plainly not a governmental unit, from bringing an agent." Kentucky v. Graham, 473 U.S. 159, 165, interlocutory appeal to challenge the grant of a 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (quoting jurisdictional plea. This would be inconsistent Monell v. Dep't of Social Servs. of City of New with the express language of Section 51.014(a)(8). York, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 It would be irrational for the Legislature to have L.Ed.2d 611 (1978)); see also Tex. Dep't of Pub. intended that a governmental unit be the only Safety v. Petta, 44 S.W.3d 575, 581 (Tex.2001). A "person" who may appeal from an interlocutory suit against a state official in his official capacity order because a governmental unit would have no "is not a suit against the official personally, for the reason to appeal the grant of a plea to the real party in interest is the entity." Graham, 473 jurisdiction. For the entire phrase "grants or U.S. at 166, 105 S.Ct. 3099 (emphasis in original). denies" to be given effect, the statute must allow Such a suit actually seeks to impose liability an appeal to be filed by both a non-governmental against the governmental unit rather than on the plaintiff challenging the grant of a plea to the individual specifically named and "is, in all jurisdiction and a governmental defendant respects other than name, . . . a suit against the challenging the denial of one.1 entity." Id.; see also Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d [233 S.W.3d 844] 849, 855-56 (Tex.2002).

Given that Section 51.014(a)(8) necessarily [233 S.W.3d 845] applies to entities other than governmental units, there is no basis for construing it to exclude state Thus, we conclude McLellan's appeal fits officials. Whereas the Legislature intentionally squarely into those appeals permitted by Section restricted the application of Sections 51.014(a)(5) 51.014(a)(8). Read in whole, the statute provides and 51.014(a)(6) by allowing interlocutory that "a person," in this instance McLellan, "may appeals only from a denial of a motion for appeal from an interlocutory order . . . that . . . Texas a & M University System v. Koseoglu, 233 S.W.3d 835, 50 Tex. Sup.Ct. J. 1213 (Tex. 2007)

grants or denies a plea to the jurisdiction by a inefficiency. For example, Section 51.014(a)(8) governmental unit," such as Texas A & M, "as that was designed to reduce litigation expenses for all term is defined in Section 101.001." TEX. CIV. parties involved in suits against state entities by PRAC. & REM. CODE § 51.014(a)(8). This resolving the question of sovereign immunity construction is supported not only by the plain prior to suit rather than after a full trial on the language of Section 51.014(a), but also by its merits.2 These cost savings apply equally logical application. A person sued in an official regardless of whether the plaintiff chooses to style capacity should be able to appeal the denial of a his petition against a governmental entity or a jurisdictional plea in the same way as his state official. Likewise, the purpose of the employing governmental unit because both provision was to allow state agencies to more defendants' interests in pleading sovereign quickly ascertain whether or not a trial court immunity are identical. We are aware of no sound could assert jurisdiction over a dispute. See rationale for distinguishing one from the other. Debate on Tex. S.B. 453 Before the House Comm. on Civil Practices, 75th Leg., R.S. (1997) To the contrary, there are sound reasons to (statement of Representative Pete Gallego). That treat the state official sued in his official capacity concern too is equally justified regardless of and his employing governmental entity equally whether a plaintiff has chosen to style his petition under Section 51.014(a)(8). Construing Section against a state official or the governmental entity 51.014(a)(8) to exclude state officials sued in their itself. official capacity would make appellate jurisdiction in a case such as this turn on the same kind of As may typically occur, an official sued in technical distinctions about the form of pleadings both his official and individual capacities that we rejected in Department of Criminal Justice v. Simons, 140 S.W.3d 338, 349 [233 S.W.3d 846] (Tex.2004). In Simons, we held the term "plea to the jurisdiction" in Section 51.014(a)(8) refers to can file a plea to the jurisdiction in defense of the the substance of the immunity argument rather official capacity claims against him and at the than "to a particular procedural vehicle." Id. This same time file a motion for summary judgment on case demonstrates the type of inefficiencies that official immunity grounds on the individual would otherwise result. Here, the court of appeals capacity claims against him. If either is denied, he held it could consider Texas A & M's plea on may immediately appeal under Section interlocutory appeal but not McLellan's. 167 51.014(a)(8) or 51.014(a)(5), whichever applies. In S.W.3d at 384. If McLellan were to now go back to this case, McLellan filed a plea to the jurisdiction the trial court to file a motion for summary in defense of claims against him in his official judgment based on sovereign immunity, and if his capacity3 Accordingly, Section 51.014(a)(8) vests motion were denied, he would then file what the appellate courts with jurisdiction to hear would be his second interlocutory appeal in this McLellan's interlocutory appeal. case seeking substantively identical relief. This situation could be expected to all too often repeat Alternatively, Koseoglu suggests the itself in other cases because a trial court's orders availability of interlocutory appeal under Section on a jurisdictional plea and a motion for summary 51.014(a)(8) turns not on the capacity in which judgment often occur across too broad a spectrum the state official is sued, but on whether the of time to be appealed as part of the defendant's official serves a legislative, judicial, or same interlocutory appeal. See TEX. R. APP. P. administrative function. But Koseoglu offers no 26.1(b), 28.1 (requiring a notice of interlocutory authority for the proposition that this distinction appeal to be filed within twenty days of a is relevant to Section 51.014(a)(8), and we are particular order being challenged). The legislative aware of none. Thus, the court of appeals erred in history of Section 51.014(a) underscores the concluding it was without jurisdiction to hear Legislature's concern with preventing such McLellan's appeal. Texas a & M University System v. Koseoglu, 233 S.W.3d 835, 50 Tex. Sup.Ct. J. 1213 (Tex. 2007)

IV. Conclusion whether the Legislature intended individual state officials to be permitted to bring a challenge by With respect to the trial court's denial of way of a plea to the jurisdiction. Government Texas A & M's plea to the jurisdiction, we affirm employees are not included in the definition of the portion of the court of appeals' judgment "governmental unit" under the Tort Claims Act. holding that Koseoglu's breach of contract claims See TEX. CIV. PRAC. & REM. CODE § 101.001(3) against Texas A & M were barred by sovereign (defining "governmental unit"). Texas A & M, immunity. But because Koseoglu's pleadings are however, argues that under the Tort Claims Act incurably defective, remanding the cause to the officials sued in their official capacities have been trial court will serve no legitimate purpose. treated by several of the courts of appeals as the Therefore, we reverse the court of appeals' equivalent of governmental entities. See, e.g., remand order and dismiss Koseoglu's claims Harrison v. Tex. Dep't of Criminal Justice- against Texas A & M with prejudice. See Harris TDCJID, No. 07-03-0239-CV, 2005 WL 1397415, County v. Sykes, 136 S.W.3d 635, 636 (Tex.2004) at *2 (Tex.App.-Amarillo June 14, 2005, no pet.) (holding that dismissal pursuant to a plea to the (mem.op.); Tex. State Auditor's Office v. Mora- jurisdiction based on sovereign immunity is with Nichols, No. 03-03-00113-CV, 2003 WL prejudice). With respect to McLellan's appeal, 22453830, at *4 (Tex.App.-Austin Oct.30, 2003, having examined the plain language of Section no pet.) (mem.op.); Madox v. Thomas, No. 11-02- 51.014(a)(8), its logical application, and the 00042-CV, 2003 WL 21757477, at *2 (Tex. App.- legislative history, we hold a state official may Eastland July 31, 2003, no pet.) (mem. op.); Klein seek interlocutory appellate review from the & Assocs. Political Relations v. Port Arthur denial of a jurisdictional plea. Accordingly, we Indep. Sch. Dist., 92 S.W.3d 889, 896 (Tex.App.- reverse that portion of the court of appeals' Beaumont 2002, pet. denied); Univ. of Tex. Med. judgment that it was without jurisdiction to Branch at Galveston v. Hohman, 6 S.W.3d 767, decide McLellan's appeal of the trial court's denial 777-78 (Tex.App.-Houston [1st Dist.] 1999, pet. of his jurisdictional plea and, under Rule 60.2(c) dism'd w.o.j.); Bates v. Dallas Indep. Sch. Dist., of the Texas Rules of Appellate Procedure, we 952 S.W.2d 543, 551 (Tex.App.-Dallas 1997, writ render the judgment the court of appeals should denied); Dear v. City of Irving, 902 S.W.2d 731, have rendered. Like Koseoglu's pleadings against 735 n. 4 (Tex.App.-Austin 1995, writ denied). Texas A & M, his pleadings against McLellan were Because we concluded in Department of Criminal deficient in the sense that he never had an Justice v. Simons, 140 S.W.3d 338, 349 actionable Section 1983 claim. In both instances, (Tex.2004), that the term "governmental unit," as Koseoglu deserves the opportunity to amend his it is used in Section 51.014(a)(8), merely describes pleadings if they can be cured, but in both the substance of allowable pleas and conclude instances, because Koseoglu's underlying claim is today that Section 51.014(a)(8)'s use of one for breach of contract, the defects cannot be "governmental unit" does not define the class of cured. Accordingly, just as we dismissed persons who can appeal under that section, we Koseoglu's claim against Texas A & M with need not address the meaning of the term in prejudice, we likewise dismiss with prejudice the Section 101.001(3). claim against McLellan in his official capacity. 2. Supporters of the provision believed "incorrect --------------- rulings on [jurisdictional pleas] needlessly waste the time of the courts and can cost litigants Notes: hundreds of thousands of dollars as they defend cases which should have been dismissed." See 1. Section 51.014(a) references section 101.001(3) HOUSE COMM. ON CIVIL PRACTICES, BILL of the Tort Claims Act in articulating its meaning ANALYSIS, Tex. S.B. 453, 75th Leg., R.S. (1997). of the term "governmental unit." Koseoglu contends this reference eliminates all doubt as to Texas a & M University System v. Koseoglu, 233 S.W.3d 835, 50 Tex. Sup.Ct. J. 1213 (Tex. 2007)

3. The parties disagree about whether Koseoglu brought claims against McLellan in his individual capacity. Any such claims are not at issue in this appeal because McLellan's plea to the jurisdiction, whose denial gave rise to this appeal, invoked sovereign immunity only "to the extent [McLellan was] sued in his official capacity." Therefore, any claims against McLellan in his individual capacity remain pending before the trial court. See, e.g., Smith v. Lutz, 149 S.W.3d 752, 756 n. 3 (Tex.App.-Austin 2004, no pet.).

--------------- Texas Dept MHMR v. Rodriguez, 63 S.W.3d 475 (Tex. App. 2001)

Page 475 Background

63 S.W.3d 475 (Tex.App.-San Antonio Rodriguez was hired as a case worker at the 2001) Laredo State Center ("LSC"), a program operated TEXAS DEPARTMENT OF MENTAL under MHMR supervision. Shortly thereafter, HEALTH AND MENTAL RETARDATION, Rodriguez returned to school and obtained a Appellant masters degree in counseling psychology. She v. then returned to LSC in 1991 as an associate Diana RODRIGUEZ, Appellee psychologist. No. 04-99-00603-CV Court of Appeals of Texas, San Antonio In 1995, Rodriguez was named as program October 31, 2001 administrator of LSC's Crisis Intervention Unit ("CIU"). During this time, Rodriguez was From the 49th Judicial District Court, Webb appointed to a Mental Health Task Force, County, Texas Trial Court No. 96-CVQ-01466-D1 consisting of health care and political Honorable Solomon Casseb, Jr., Judge Presiding representatives. Some of the task force members, including Rodriguez, went to Starr County in The motion for rehearing en banc filed by April 1996 to educate officials regarding civil Diana Rodriguez on May 30, 2001, is granted. commitment procedures. Upon their return, The panel's opinions and judgment of May 16, Rodriguez and two other LSC employees reported 2001, are withdrawn, and these opinions and their findings to LSC administrators, including judgment are substituted. Javier Ramirez, LSC's chief executive. The report noted that Starr County officials did not have a Page 476 clear understanding of the Mental Health Code and possibly were abusing the civil commitment [Copyrighted Material Omitted] process.

Page 477 Ramirez responded to the report in writing, complimenting the employees on their efforts and Sitting en banc: Phil Hardberger, Chief requesting that more specific proposed solutions Justice, Tom Rickhoff, Justice, Alma L. Lopez, be developed. Ramirez Justice, Catherine Stone, Justice, Paul W. Green, Justice, Sarah B. Duncan, Justice (concurring in Page 478 the judgment only), Karen Angelini, Justice noted that any allegations regarding civil rights Angelini, Justice violations would be taken seriously. Despite the continued efforts of LSC employees, however, The Texas Department of Mental Health and Starr County officials apparently made no Mental Retardation of the State of Texas changes in their civil commitment procedures. ("MHMR") appeals a judgment awarding damages to Diana Rodriguez ("Rodriguez") in a In September of 1996, Rodriguez and Dr. whistle blower action. MHMR asserts six points of Jose G. Garcia, LSC's consultant psychiatrist, error, contending that the evidence is legally and again went to Starr County to provide technical factually insufficient to support several of the assistance in commitment procedures. At jury's findings, and that the trial court erred in Ramirez's request, they prepared a memorandum failing to apply the statutory damages cap to reporting that the county attorney's office was damages for past mental anguish and to the resisting any modification in procedures to award of pre-judgment interest. properly handle the legal requirements for involuntary commitment. The report stated that Texas Dept MHMR v. Rodriguez, 63 S.W.3d 475 (Tex. App. 2001)

the due process of proposed patients is rarely also absent from the training; however, Ramirez protected. The report strongly recommended testified that department managers were not intensive training on mental health issues for all required to attend. Rodriguez went to the training staff handling intake evaluation in Starr County. after she finished her report for the TPRS. The report concluded that the concerns had been discussed with Barbara Owens from the office of On September 26, 1996, Ramirez prepared a legal counsel of MHMR in Austin, who indicated Thurston letter, which is the first step in LSC's she would address the issue from the state level. disciplinary process, regarding the incident. Rodriguez testified that she distributed the Ramirez testified that when he prepared the memorandum to Ramirez and several others at Thurston letter, he intended to terminate LSC around 10:00 a.m. on September 26, 1996. Rodriguez. He further testified that he had not seen Rodriguez's September 26, 1996 report Approximately one month earlier, Ramirez regarding Starr County when he prepared the had issued a memorandum to all staff in which he Thurston letter. Rodriguez received the Thurston noted that some staff might not be pulling their letter on September 27, 1996 at 4:00 p.m. weight or complying with their tasks as defined in Rodriguez testified that personnel policies their job descriptions. In keeping with his required that her immediate supervisor, not management style, Ramirez stated that the memo Ramirez, prepare the Thurston letter. Ramirez, was to serve as official notice that failure to however, testified that he had prepared the comply with a job description, violation of Thurston letter himself because he was directly departmental rules and regulations, commission involved in the confrontation. of insubordination or acts of consumer abuse/neglect, or failure to provide services to Page 479 consumers would not be tolerated. On September 28, 1996, Rodriguez filed a Also, during September 1996, Ramirez rebuttal to the Thurston letter, stating that she implemented a mandatory staff training program. had not been notified that attendance on Rodriguez attended the training on September 24, September 25, 1996, was mandatory. She 1996, but failed to show up for training on subsequently filed an official complaint against September 25. Shortly after the training session Ramirez, with Ramirez's supervisor, Sam Wilson. commenced, the staff development director went Wilson determined that the Thurston letter to Rodriguez's office and inquired about her should be removed from Rodriguez's file; absence from the training session. At the time, however, the letter was not removed until Rodriguez was in a meeting with a representative January 9, 1997, after Rodriguez filed her lawsuit. from the Texas Department of Protective and Regulatory Services ("TPRS"). Ramirez testified On October 14, 1996, Lillian Dickinson, that if a TPRS investigator is present at LSC Rodriguez's immediate supervisor, wrote a conducting an investigation, Rodriguez is memorandum to Ramirez regarding an incident required by law to cooperate with him. involving the CIU dispensing medication to an Nevertheless, Sanchez insisted that Rodriguez outpatient. Rodriguez had informed Dickinson attend the training. Sanchez testified that that dispensing medication to an outpatient Rodriguez refused. violated the Code. Dickinson reported Rodriguez for questioning her authority. Dickinson noted Sanchez reported Rodriguez's failure to that Rodriguez was written up because of her attend the training to Ramirez. Ramirez went to attitude and behavior, and not because she was Rodriguez's office, directed her to attend and wrong with regard to what the Code required. instructed a human resources employee to escort Rodriguez to the training. Rodriguez testified that Two days later, on October 16, Rodriguez another employee, a department manager, was was given a performance counseling and review. Texas Dept MHMR v. Rodriguez, 63 S.W.3d 475 (Tex. App. 2001)

At the meeting, Ramirez read Rodriguez's job smaller than CIU. When she was transferred, description and instructed her to complete a Rodriguez was given one hour to vacate her office number of assignments and to report directly to and, according to Rodriguez, four people watched Dickinson about important issues. Rodriguez as she cleared her office. testified that she was not demoted nor were her wages affected by the performance counseling. Rodriguez filed a formal complaint regarding Further, the performance counseling did not the transfer, expressing concern that Club cause any change or loss in job duties or Primavera was soon to be shut down. Ramirez responsibilities. responded that, although he had considered closing Club Primavera at one point, he eventually In November of 1996, Rodriguez received a had decided to maintain the program. Although performance evaluation. Although her overall there was evidence that working in the CIU was evaluation was "meets standards," Rodriguez considered more prestigious than working received a "below standards" evaluation for "comply[ing] with applicable Center, TXMHMR, Page 480 and unit rules, policies and procedures for the Laredo State Center 100% of the time." Dickinson in the rehabilitation program, Rodriguez testified that the "below standards" rating had to admitted that the transfer offered her a new do with following unit rules, policies, and challenge and an opportunity to restructure and procedures, including the Code. Specifically, reorganize. Rodriguez stated that she enjoyed Rodriguez had not attended the mandatory working in the program and admitted that the training and had behaved in an insubordinate transfer did not involve a change in her title or manner to Dickinson. Rodriguez testified that she salary. There was testimony from Rodriguez's co- believed the "below standards" evaluation workers that she was professional and competent, precluded her from receiving a raise; however, but that after the September Starr County report, her testimony was rebutted by several LSC the attitude at LSC toward Rodriguez became managers, who testified that one "below hostile. standards" rating in a single category would not preclude Rodriguez from receiving a raise. Rodriguez testified that she generally received a 3% raise if she was ranked as On December 6, 1996, Rodriguez filed suit, "exceeding standards" on her performance alleging that she had been subjected to adverse evaluation. However, Rodriguez, since 1996, has personnel actions as a result of reporting not received any raises. Rodriguez did receive a violations of the law in Starr County. promotion in January of 1996 from Program Administrator I to Program Administrator II. Late in 1997, Rodriguez became concerned And, in the fall of 1997, Rodriguez received the that patients were not receiving appropriate $100 across the board raise given to each treatment in the CIU. Rodriguez began collecting employee of the facility. documentation which she gave to Dickinson. A technical assistance team was sent to investigate Yvonne Lopez, who was special assistant and and, as a result of the investigation, the team assistant director for support services of LSC, recommended that the CIU switch to a nurse testified that because Rodriguez was promoted manager model of management. MHMR followed from Program Administrator I to Program this recommendation. Administrator II in January of 1996, she was precluded by MHMR policies from receiving a Because this change in management style merit increase within the following12-month required a nurse to manage the unit, Rodriguez period. Lopez further testified that she was transferred to Club Primavera, a participated in the decision to transfer Rodriguez rehabilitation program that was considerably to the rehabilitation program. The decision to Texas Dept MHMR v. Rodriguez, 63 S.W.3d 475 (Tex. App. 2001)

transfer was based on the CIU's conversion to a transfer from CIU to the rehabilitation program. nurse manager model and the existence of a Section 554.001(3) of the Texas Government vacancy at Club Primavera for which Rodriguez Code defines "personnel action" as an action that was qualified. Lopez stated that Rodriguez's affects a public employee's report regarding the violations in Starr County did not factor into the transfer decision. Page 481

Discussion compensation, promotion, demotion, transfer, work assignment, or performance evaluation. See A. Legal and Factual Sufficiency Tex. Gov't Code Ann. §554.001(3) (Vernon Supp. 2000). MHMR asserts, however, that we must MHMR's first four points of error challenge interpret the meaning of "adverse personnel the legal and factual sufficiency of the evidence to action" in view of the federal court cases holding support various jury findings. In reviewing the that only "ultimate employment decisions" are legal sufficiency of the evidence, we consider all prohibited, which do not include reprimands, the evidence in the light most favorable to the warnings, and missed pay increases which lack finding, and we disregard all evidence and significant consequence. See Mattern v. Eastman inferences to the contrary. See Vickery v. Vickery, Kodak Co., 104 F.3d 702, 709 (5th Cir. 1997). We 999 S.W.2d 342, 375-76 (Tex. 1999). If there is a disagree with MHMR's narrow reading of the scintilla of evidence to support the finding, the term "personnel action." finding will be upheld. See id. In reviewing a factual sufficiency point, we are required to weigh The statutory definition specifically includes all of the evidence in the record. See Ortiz v. actions affecting transfer, work assignment, or Jones, 917 S.W.2d 770, 772 (Tex. 1996). Findings performance evaluation, not just ultimate may be overturned only if they are so against the employment decisions. And, although there great weight and preponderance of the evidence appears to be little in the way of actual adverse as to be clearly wrong and unjust. See id. The jury, consequences to Rodriguez as a result of the three as trier of fact, is the sole judge of the credibility actions of which she complains, there is evidence of the witnesses and the weight to be given to from which the jury could conclude that they had their testimony. See Knox v. Taylor, 992 S.W.2d an adverse impact on Rodriguez. The Thurston 40, 50 (Tex. App.--Houston [14th Dist.] 1999, no letter was a step toward taking disciplinary action, pet.). Because the appellate court is not the fact the "below standard" evaluation was an finder, it may not substitute its own judgment for unfavorable reflection of her performance, and that of the trier of fact, even if a different answer some witnesses perceived the rehabilitation unit could be reached on the evidence. See Maritime to which Rodriguez was transferred to be a less Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. desirable place to work. 1998). MHMR also challenges the causation aspect 1. Adverse Personnel Action and Causation of Rodriguez's claim. 1 The Texas Supreme Court has recently clarified the causation standard that In its first issue, MHMR challenges the legal was first announced in Texas Department of and factual sufficiency of the evidence to support Human Services v. Hinds, 904 S.W.2d 629 (Tex. the jury's finding that Rodriguez suffered adverse 1995). See City of Fort Worth v. Zimlich, 29 personnel actions that would not have occurred S.W.3d 62, 67 (Tex. 2000). To show causation, absent her reporting of Starr County's legal Rodriguez must demonstrate that after she violations. The three adverse personnel actions reported the violation, she suffered Rodriguez contends were taken against her are: discriminatory conduct that would not have (1) the Thurston letter; (2) the "below standards" occurred when it did if she had not reported the performance evaluation ranking; and (3) her illegal conduct. See id. Causation may not be Texas Dept MHMR v. Rodriguez, 63 S.W.3d 475 (Tex. App. 2001)

inferred without some evidence to support the fact, Ramirez had complimented Rodriguez and finding. See id. Circumstantial evidence may be others for their efforts in preparing a similar sufficient to establish a causal link between the report and had indicated he would give serious adverse employment action and the reporting of consideration to civil rights violations in Starr illegal conduct. Id. Such evidence includes: (1) County. knowledge of the report of illegal conduct; (2) expression of a negative attitude toward the With regard to adherence to established employee's report of the conduct; (3) failure to policy, Rodriguez testified that established policy adhere to established company policies regarding required her immediate supervisor, Dickinson, to employment decisions; (4) discriminatory have prepared the Thurston letter instead of treatment in comparison to similarly situated Ramirez. However, Ramirez explained that he employees; and (5) evidence that the stated prepared it himself because he was directly reason for the adverse employment action was involved in the confrontation with Rodriguez. false. Id. Evidence that an adverse employment Furthermore, Dickinson had only been action was preceded by a superior's negative Rodriguez's supervisor for a short period of time. attitude toward an employee's report of illegal conduct is not enough, standing alone, to show a Rodriguez attempted to show she was causal connection between the two events. Id. treated in a discriminatory manner in comparison to similarly situated employees by testifying that (A) The Thurston Letter another supervisor who did not attend the training session was not disciplined; however, On September 25, Rodriguez did not attend a Ramirez explained that the other supervisor was a mandatory training session until she was department head and, therefore, was not required reminded to attend by the staff development to attend. director, directed to attend by Ramirez, and then, eventually, escorted by a human resources Although Rodriguez apparently did not employee. According to Rodriguez, she initially receive notice of the training session, she distributed the memorandum regarding the was directed to attend after it began. However, commitment procedures in Starr County the she, at first, refused because she was in a meeting following day, on September 26, at about 10:00 with a TPRS investigator and only went to the a.m. Also, on September 26, Ramirez prepared training session after finishing her report for the the Thurston letter regarding the training investigator and receiving an escort from the incident as a disciplinary procedure human resources department. Although it was eventually determined that the Thurston letter Page 482 should be removed from Rodriguez's file, this does not show that Ramirez's stated reason for against Rodriguez. Rodriguez received it on preparing the letter was false or that the Starr September 27, at 4:00 p.m. Although the timing County report was the actual reason for the of events is such that Ramirez might have seen Thurston letter. the report before preparing the Thurston letter, Ramirez testified that when he prepared the (B) The October 16, 1996 Performance Thurston letter, he had not seen Rodriguez's Evaluation September 26 report. Thus, there is no evidence that Ramirez saw Rodriguez's report before he Although Rodriguez received an overall issued the Thurston letter. "meets standards" evaluation, she received one "below standards" ranking. It is undisputed that Likewise, there is no evidence that Ramirez Ramirez had knowledge of Rodriguez's Starr expressed a negative attitude toward Rodriguez's County report by the time she received her report concerning Starr County procedures. In October 16th performance review. However, as Texas Dept MHMR v. Rodriguez, 63 S.W.3d 475 (Tex. App. 2001)

stated above, there is no evidence that Ramirez moreover, it related to his perception at the time ever reacted negatively toward the report and, in he issued it that Rodriguez had refused to attend fact, had reacted favorably to Rodriguez's work in mandatory training. With regard to the Starr County. performance evaluation and the transfer to the rehabilitation unit, Ramirez was clearly aware of Further, there is no evidence that in giving Rodriguez's report regarding Starr County; Rodriguez one "below standards" ranking, however, the evidence shows he never reacted established policies were not followed or that she negatively to the report and, in fact, had reacted was treated differently from similarly situated favorably to Rodriguez's efforts in Starr County. employees. And, according to Dickinson, the Furthermore, established policy was generally "below standards" rating concerned unit rules, followed except for minor deviations, which were policies, and procedures. Specifically, she referred explained. And, there is no evidence Rodriguez to Rodriguez's failure to attend the training was treated any differently from similarly situated session and her insubordination on other matters. employees or that the stated reasons for taking Furthermore, there is no evidence that these the actions were false. Thus, the types of stated reasons were false. circumstantial evidence set forth by the Supreme Court in Zimlich do not exist in this case. The (C) Transfer to the Rehabilitation Program evidence is legally insufficient to show that the three adverse employment actions of which Again, it is undisputed Ramirez knew of the Rodriguez complains would not have been taken Starr County report when Rodriguez was if Rodriguez had not made her Starr County transferred to the rehabilitation program. But, Report. As stated in Zimlich, there is no evidence although the process by which she was "from which a fact finder could reasonably infer transferred was unusual, there is no evidence the that discrimination was a factor in the decision decision to transfer was made without adhering to process." City of Fort Worth v. Zimlich, 29 S.W.3d established policy. In fact, it is undisputed that 62, 69 (Tex. 2000). Without evidence supporting when the CIU converted to a nurse manager such an inference, "a finding of liability rests only model, it was no longer feasible to keep Rodriguez on speculation." Id. at 70. as program manager. Because we find there is no evidence of Page 483 causation to support the jury's finding, we need not address Rodriguez's remaining issues. Further, there is no evidence Rodriguez was treated differently from similarly situated Conclusion employees or that the stated reasons for transferring her to another unit were false. We hold there is no evidence of causation to Rodriguez reported problems in the unit, so a support the jury's finding. We, therefore, reverse team was called in to address the problems. After and render the judgment in MHMR's favor. conducting a study, the team recommended a change to a nurse manager model. This Concurring opinion by: Tom Rickhoff, Justice necessarily required a nurse to manage the unit. Rodriguez was transferred to the rehabilitation Dissenting opinion by: Phil Hardberger, unit with no reduction in pay. Chief Justice (joined by Justice Lopez and Justice Stone) In summary, Rodriguez complains of only three adverse employment actions taken against --------------- her. With regard to the Thurston letter, there is no evidence that Ramirez was aware of Notes: Rodriguez's report when he issued it and, Texas Dept MHMR v. Rodriguez, 63 S.W.3d 475 (Tex. App. 2001)

1. Section 554.004 of the Texas Government Code Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). I states that causation is presumed if the adverse agree with the majority that the Thurston letter personnel action occurs not later than the 90th and the performance evaluation were adverse day after the date the employee reports the personnel actions. However, I disagree that there violation. See Tex. Gov't Code Ann. §554.004(a) was no evidence to support the jury's finding that (Vernon Supp. 2000). The presumption is subject Rodriguez suffered these adverse personnel to rebuttal. See id. Once MHMR offered sufficient actions because she reported the illegal conduct. evidence to suggest no connection between Rodriguez's report and the adverse personnel Circumstantial evidence may be sufficient to actions, the presumption was rebutted and establish a causal link between the adverse Rodriguez was required to prove a causal employment action and the reporting of illegal connection. See Texas Natural Resource conduct. Id. Such evidence includes: (1) Conservation Com'n v. McDill, 914 S.W.2d 718, knowledge of the report of illegal conduct; (2) 724 (Tex. App.--Austin 1996, no writ). expression of a negative attitude toward the employee's report of the conduct; (3) failure to --------------- adhere to established company policies regarding employment decisions; (4) discriminatory RICKHOFF, Justice, concurring. treatment in comparison to similarly situated employees; and (5) evidence that the stated In my opinion, the adverse employment reason for the adverse employment action was action must be taken based on the contents of the false. Id. "whistle-blower" report. In this case, none of the appellee's superiors were critical of the content of (1) Knowledge of the Report her report; her supervisors agreed that Starr County officials were abusing the requisite legal The majority concedes that "the timing of the procedures in the methods they were using for events is such that Ramirez might have seen mental health commitments. The adverse [Rodriguez's] report before preparing the employment action was related to the manner in Thurston letter." However, the majority rejects which the appellee acted subsequent to the report this possible inference because Ramirez testified that caused her to be viewed as an that he did not see the report before he prepared uncompromising non-team player. The appellee the Thurston letter. In doing so, the majority was forceful, difficult, and opinionated at a time ignores the applicable standard of review. when a new supervisor had a yen for team players. The adverse employment action is not When considering a legal sufficiency linked to her criticism of Starr County but with complaint, we consider only the evidence and her attitude in the workplace. Because the inferences that tend to support the jury's finding, majority reaches the same result, I concur. disregarding all evidence and inferences to the contrary. Lewelling v. Lewelling, 796 S.W.2d 164, HARDBERGER, Chief Justice, dissents 166 (Tex. 1990). "The court of appeals is not a fact finder. Accordingly, the court of appeals may not To prove causation, Rodriguez was required pass upon the witnesses' credibility or substitute to demonstrate that after she reported its judgment for that of the jury." Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 Page 484 (Tex. 1998).

Starr County's violations of the Mental Health The jury could have disbelieved Ramirez's Code, she suffered adverse personnel actions that testimony that he had not seen the report when would not have occurred when they did if she had he prepared the Thurston letter. In any event, our not reported the illegal conduct. City of Fort standard of review requires us to disregard Texas Dept MHMR v. Rodriguez, 63 S.W.3d 475 (Tex. App. 2001)

Ramirez's testimony because it is contrary to the period of time. However, as an appellate court, we jury's finding. Considering only the evidence and are not to reconsider the credibility of the inferences that tend to support the jury's finding, witnesses who testify. See id. Whether Ramirez's as we are required to do, the jury could have excuses were credible was an issue for the jury, inferred from the timing of the events that and the jury chose to disbelieve him. Ramirez had seen the report before preparing the Thurston letter. The evidence is undisputed that (4) Discriminatory Treatment in Comparison Ramirez had knowledge of the report before the to Similarly Situated Employees performance evaluation. Rodriguez testified that another supervisor (2) Expression of a Negative Attitude Toward who was absent from the training session was not the Employee's Report disciplined. Rodriguez further testified that the Thurston letter was issued despite her Although Ramirez had praised a previous explanation that she was preparing a report for report by Rodriguez and others regarding the TPRS and despite Ramirez's admission that the Starr County violations, that report did not LSC was required to cooperate with TPRS by law. circulate to staff outside the LSC. During the The majority discounts the evidence that the performance evaluation, Ramirez instructed other supervisor was not disciplined based on Rodriguez that she was to report directly to her Ramirez's testimony that the other supervisor was immediate supervisor, Dickinson. Ramirez a department head and not required to attend. rejected Rodriguez's reply that she was precluded However, whether Ramirez's explanation was from reporting to Dickinson regarding certain credible was a decision to be made by the jury not matters, instructing Rodriguez that her unit was by this court on appellate review. See id. not an island. From this evidence, the jury could infer that Ramirez had a negative attitude toward (5) Evidence that the Stated Reason for the Rodriguez's report because she sent it to Adverse Employment Action was False supervisors outside the LSC. Ramirez refused to consider Rodriguez's (3) Failure to Adhere to Established explanation regarding the lack of advance notice Company Policies Regarding Employment of the training and her need to work with the Decisions TPRS. However, Wilson, Ramirez's supervisor, decided that Ramirez had overreacted and that Under the established policies, Rodriguez's the Thurston letter should be removed from immediate supervisor, Dickinson, should have Rodriguez's file. The jury could infer from written the Thurston letter and conducted the Ramirez's refusal to consider what Wilson performance counseling. Ramirez failed to adhere determined to be a reasonable explanation that to those policies by taking those employment the reason Ramirez gave for issuing the Thurston actions himself. letter was a pretense and that the letter was really issued in response to Rodriguez's report of the Page 485 illegal conduct. In addition, Rodriguez subsequently was ranked below standards on her Ramirez even told Dickinson that he was in performance evaluation for failing to attend the charge of the performance counseling when she training; however, Wilson had determined that attempted to interject a comment at the meeting, the reason she gave for refusing to attend the precluding her from any participation. The training was valid in requiring the Thurston letter majority discounts this evidence based on to be removed. As a result, the jury also could Ramirez's testimony that he took the actions infer that the reason given for the below because he was directly involved and Dickinson standards performance evaluations was a had only been Rodriguez's supervisor for a short pretense. Texas Dept MHMR v. Rodriguez, 63 S.W.3d 475 (Tex. App. 2001)

Rodriguez introduced sufficient circumstantial evidence to support the jury's finding that the Thurston letter and the below standards performance evaluation would not have occurred when they did if she had not reported the illegal conduct. Because the majority holds to the contrary, I respectfully dissent. Texas Dept. of Corrections v. Herring, 513 S.W.2d 6 (Tex. 1974)

Page 6 basic information needed to assert specific allegations of negligence: the names of doctors, 513 S.W.2d 6 nurses and paraprofessionals who treated the TEXAS DEPARTMENT OF CORRECTIONS, plaintiff, details of his injury and the medical Petitioner, treatment administered to him. The Department v. of Corrections moved to strike the interrogatories James W. HERRING, Respondent. on the ground that Rule 168, Texas Rules of Civil No. B--4341. Procedure, is not applicable to the State. The Supreme Court of Texas. record contains no ruling on this motion. The trial July 24, 1974. court nevertheless proceeded to grant the Rehearing Denied Sept. 24, 1974. Department of Correction's motion for summary judgment. As a result, the plaintiff's written John L. Hill, Atty. Gen., Jack Sparks, Asst. interrogatories were not answered. In remanding Atty. Gen., Austin, for petitioner. the case, the court of civil appeals said it perceived no reason why the State should be Moore, Morris & Payne, Louis M. Moore, exempt from Rule 168. This court agrees with the Houston, for respondent. court of civil appeals.

SAM D. JOHNSON, Justice. As a general rule, the State litigates as any other party in Texas courts 'When the state Suit for damages brought under the Texas becomes a litigant in the courts it must observe Tort Claims Act. 1 James W. Herring brought this and is bound by the same rules of procedure that action for personal injuries against the Texas bind all other litigants, except where special Department of Corrections. The trial court held provision is made to the contrary.' Texas that, as a matter of law, Herring did not have a Company v. State, 154 Tex. 494, 281 S.W.2d 83, cause of action under the Texas Tort Claims Act 90 (1955). See also State v. Jasco Aluminum and rendered a take-nothing summary judgment with prejudice. The court of civil appeals reversed Page 8 and remanded. 500 S.W.2d 718. We affirm the judgment of the court of civil appeals. Products Corporation, 421 S.W.2d 409 (Tex.Civ.App.--Austin 1967, no writ). Laws and Plaintiff Herring, a prisoner of the Texas rules governing evidence, burden of proof, cross Department of Corrections at Huntsville, received complaints, pleadings, instructed verdicts and an accidental injury to the right side of his face in summary judgments bind the State and other a basketball game. He received medical treatment litigants uniformly. See State v. Humble Oil & at the prison hospital and later at The University Refining Co., 141 Tex. 40, 169 S.W.2d 707 (1943); of Texas Medical Branch Hospital in Galveston. Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562 Despite such treatment Herring lost all vision in (1943); and Note, 43 Tex.L.Rev. 979, 982 (1965). his right eye. Herring's petition did not allege specific acts of negligence; rather, his petition Under Federal Rule 33, Federal Rules of Civil contained only a general allegation of negligence Procedure, the Federal government has long been which was 'negligence in failing to provide required to respond to interrogatories. United adequate medical care and treatment.' States v. Shubert, 11 F.R.D. 528 (S.D.N.Y.1951); United States v. General Motors Corporation, 2 Herring served written interrogatories on F.R.D. 528 (N.D.Ill.1942). The purpose of the '(t)he Department of Corrections, Defendant Federal rule is to give '(m)utual knowledge of all herein, by and through its Attorney of Record, the relevant facts gathered by both parties . . ..' John L. Hill, Attorney General of Texas, . . .' These Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. interrogatories, among other things, sought the 385, 392, 91 L.Ed. 451 (1947). Texas Rule 168 is Texas Dept. of Corrections v. Herring, 513 S.W.2d 6 (Tex. 1974)

derived from and is an almost exact copy of provisions provide otherwise. See Texas Company Federal Rule 33. As under the Federal rule, v. State, Supra, and the cases cited Infra; and 43 interrogatories in this State are designed to elicit Tex.L.Rev. 979, Supra, and the cases cited Infra. the basic facts of the case. See Comment, Written Interrogatories and Requests for Admissions, 19 The plaintiff here, Herring, followed the Baylor L. Rev. 133 (1967). procedure outlined in Rule 168 in every respect. Rule 168 provides that interrogatories must be Despite this similarity in purpose, there is directed at a party, but delivered one Texas case which would seem to run contra to Federal authority. Harrington v. State, 385 Page 9 S.W.2d 411 (Tex.Civ.App.--Austin 1964, reversed on other grounds, 407 S.W.2d 467 (Tex.1966), to that party's attorney unless delivery to the cert. denied, 386 U.S. 944, 87 S.Ct. 977, 17 party himself is ordered by the court. The Texas L.Ed.2d 874 (1967). In Harrington the court of Tort Claims Act provides, '(t)he Attorney General civil appeals specifically exempted the State from of Texas shall defend all actions brought under answering interrogatories. The intermediate the provisions of this Act against any unit of appellate court relied on Article 4411, V.A.C.S., government whose authority and jurisdiction is which recites, '(n)o admission, agreement or coextensive with the geographical limits of the waiver, made by the Attorney General, in any State of Texas.' Art. 6252--19, Sec. 9. Herring action or suit in which the State is a party, shall therefore served his interrogatories on the prejudice the rights of the State.' 2 From this Department of Corrections through the Attorney language the court of civil appeals reasoned that General. '(i)t would be futile for the Attorney General to answer interrogatories for the State when his Aside from the preliminary question relative answers could not prejudice the rights of the to interrogatories, the only issue to be resolved is State.' 385 S.W.2d 411 at 417. The Harrington case whether the Department of Corrections was was then reversed by this court on other grounds. entitled to a summary judgment. The Texas Tort 407 S.W.2d 467 (Tex.1966). Claims Act, Article 6252--19, Section 3, reads:

After review of Harrington in connection with 'Sec. 3. Each unit of government in the state shall the instant case, we are of the opinion that the be liable for money damages for personal injuries court of civil appeals in Harrington was in error in or death when proximately caused by the excluding the State from the ambit of Rule 168. negligence or wrongful act or omission of any Article 4411, the statute relied on by the court of officer or employee acting within the scope of his civil appeals in Harrington, prohibits the Attorney employment or office arising from the operation General from making any 'admission, agreement or use of a motor-driven vehicle and motor-driven or waiver' that prejudices the State; yet, Rule 168 equipment, other than motor-driven equipment operates only to clarify Facts. This court does not used in connection with the operation of believe that the State will be in any way floodgates or water release equipment by river prejudiced by a full revelation of the Facts authorities created under the laws of this state, involved in a case; the Attorney General will not under circumstances where such officer or be called upon to make admissions, agreements employee would be personally liable to the and waivers. The Department of Corrections claimant in accordance with the law of this state, argues that Rule 168 does not refer specifically to or death or personal injuries so caused from some the State. However, other rules of civil procedure condition or some use of tangible property, real or referring only to 'parties' have been applied to the personal, under circumstances where such unit of State. Bednarz v. State, Supra. Extensive authority government, if a private person, would be liable to supports the proposition that the State is bound the claimant in accordance with the law of this by the rules of civil procedure Unless special state. . . .' Texas Dept. of Corrections v. Herring, 513 S.W.2d 6 (Tex. 1974)

Herring relies on the State's liability for 'use Had the Department of Corrections filed of tangible property.' In the plaintiff's petition, special exceptions which were sustained by the containing the very general allegation of court, Herring would have had an opportunity to negligence, he asserted that the Texas amend as a matter of right. McCamey v. Kinnear, Department of Corrections and its agents and/or 484 S.W.2d 150 employees were negligent in 'failing to provide adequate medical care and treatment.' The Page 10 Department of Corrections, without anything more than its motion to strike interrogatories, (Tex.Civ.App.--Beaumont 1972, writ ref'd n.r.e.). moved for summary judgment, asserting that But only after a party has been given an 'Plaintiff's allegations fail to bring him within the opportunity to amend after special exceptions requirements of the Texas Tort Claims Act and have been sustained may the case be dismissed there is no legal authority for an action such as for failure to state a cause of action. alleged by Plaintiff against this Defendant.' Although not pointed out specifically in the In the instant case Herring was precluded motion, the Department of Corrections argues opportunity to amend his pleadings once the trial here that a failure to give medical care cannot court had granted the motion for summary involve the use of tangible property, citing Beggs judgment. This court believes that the protective v. Texas Dep't of Mental Health & Mental Ret., features of special exception procedure should not 496 S.W.2d 252 (Tex.Civ.App.--San Antonio 1973, be circumvented by a motion for summary writ ref'd). This court agrees that Herring's judgment on the pleadings where plaintiff's pleadings failed to state a cause of action since no pleadings, as here, fail to state a cause of action. 'use of tangible property' was alleged as required To do so would revive the general demurrer by the Texas Tort Claims Act. discarded by Rule 90, Texas Rules of Civil Procedure. McDonald, Summary Judgments, 30 However, the question to be resolved is Tex.L.Rev. 285, 297 (1951); Suggs and Stumberg, whether Herring, under the instant Summary Judgment Procedure, 22 Tex.L.Rev. circumstances, may be denied the opportunity to 433, 439--40 (1944); 2 McDonald, Texas Civil amend his pleadings because they were attacked Practice § 7.18 at 205. via a summary judgment motion instead of a special exception. It is recognized that a party We agree with the court of civil appeals that may plead himself out of court; E.g., the plaintiff the instant motion for summary judgment may plead facts which affirmatively negate his alleging that the plaintiff's pleadings fail to state a cause of action. See for example Morris v. cause of action cannot take the place of a special Hargrove, 351 S.W.2d 666 (Tex.Civ.App.--Austin exception. Accordingly, this case must be 1961, writ ref'd n.r.e.), and Schroeder v. Texas & returned to the trial court. If the Department of Pacific Ry. Co., 243 S.W.2d 261 (Tex.Civ.App.-- Corrections files a special exception which is Dallas 1951, no writ). In such instance it is proper sustained and Herring still fails to state a cause of to grant the defendant's motion for summary action, 3 then the case may properly be dismissed. judgment. The instant case is clearly The judgment of the court of civil appeals is distinguishable however. Here, as we have held, affirmed. Herring's pleadings were insufficient; that is, they failed to state a cause of action. The Department Dissenting opinion by WALKER, J., in which of Corrections leveled no special exceptions to GREENHILL, C.J., joins. Herring's pleadings and thus no opportunity to amend his pleadings to state a cause of action was WALKER, Justice (dissenting). afforded. Texas Dept. of Corrections v. Herring, 513 S.W.2d 6 (Tex. 1974)

Rule 168 was amended effective February 1, 3 Under Rule 166--A(f), Texas Rules of Civil 1973. At that time we eliminated the language that Procedure, Herring is entitled to pursue discovery formerly authorized interrogatories to be measures. answered by the attorney of the party interrogated. When the interrogatories in the present case were served, the rule required, as it does now, that the interrogatories be answered 'by the party served, or, if the party served is a public or private corporation or a partnership or association, by an officer or agent.' Rule 168 is quite similar to Federal Rule 33, but there is one important difference. Federal Rule 33 specifically provides that if the party served is a 'governmental agency,' the interrogatories may be answered by any officer or agent. There is no similar provision in Rule 168. Under our statutes and rules, information in the possession of public officials and employees is subject to discovery by deposition, but neither the Attorney General nor any other official or employee is authorized to answer interrogatories for and in the name of the State of Texas. Until we further amend Rule 168 or until the Legislature authorizes someone to answer interrogatories on behalf of the State, it is my opinion that the State may not be required to respond to interrogatories propounded under Rule 168.

GREENHILL, C.J., joins in this dissent.

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1 Art. 6252--19, Vernon's Ann.Civ.Stat. (as amended in 1973).

2 The Harrington court focused on the Attorney General's power to answer interrogatories because at the time the case was decided Rule 168 authorized the answering party's Attorney to sign the interrogatories. Effective February 1973 the Party answering must sign. In the instant case Herring correctly directed his interrogatories to the Department of Corrections 'by and through its Attorney of Record, John H. Hill, Attorney General of Texas.' The essential issue in Harrington and the instant case is the same despite the rule change: must the State answer interrogatories? Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

133 S.W.3d 217 support of the plea because the Department did TEXAS DEPARTMENT OF PARKS AND not allege that the Mirandas' pleadings were a WILDLIFE, Petitioner, sham for the purpose of wrongfully obtaining v. jurisdiction. 55 S.W.3d 648, 652. Maria MIRANDA and Ray Miranda, Respondents. In accord with our decision in Bland No. 01-0619. Independent School District v. Blue, 34 S.W.3d Supreme Court of Texas. 547 (Tex.2000), we hold that the trial court in this Argued October 30, 2002. case was required to examine the evidence on April 2, 2004. which the parties relied to determine if a fact issue existed regarding the alleged gross [133 S.W.3d 220] negligence of the Department. Due to the unusual confluence of standards erected by the Legislature Howard G. Baldwin, First Asst. Atty. Gen., for waiver of sovereign immunity in the Texas Jeffrey S. Boyd, Thompson & Knight, Harry W. Tort Claims Act and the recreational use statute, Deckard, Office of Attorney General, Nelly R. plaintiffs must plead gross negligence to establish Herrera, Office of Attorney General, Julie subject matter jurisdiction. Further, if the Caruthers Parsley, Public Utility Com'n, and Lisa plaintiffs' factual allegations are challenged with Royce Eskow, Attorney General's Office, Austin, supporting evidence necessary to consideration of for Petitioner. the plea to the jurisdiction, to avoid dismissal plaintiffs must raise at least a genuine issue of Emmett R. Harris, Law Office of R. Emmett material fact to overcome the challenge to the Harris, Jerry Don Evans, Uvalde, TX, for trial court's subject matter jurisdiction. Because Respondent. the Mirandas failed to raise a genuine issue of material fact regarding the alleged gross Justice WAINWRIGHT delivered the opinion negligence of the Department, we conclude that of the Court with respect to parts I., II., III.A., the trial court lacked subject matter jurisdiction III.B., III.C.2., III.C.3., III.D., and IV., in which over this lawsuit. Therefore, we reverse the Chief Justice PHILLIPS, Justice HECHT, Justice judgment of the court of appeals and render OWEN, and Justice SMITH joined, and a judgment dismissing the case. plurality opinion with respect to Part III.C.1., in which Chief Justice PHILLIPS, Justice HECHT, I. Factual and Procedural Background and Justice SMITH joined. The Mirandas' third amended petition Maria Miranda sustained injuries after a tree contains the following allegations: In April 1998, limb fell on her at Garner State Park in Uvalde the Mirandas and their family were camping and County. Maria and her husband Ray sued the picnicking as paying guests at Garner State Park, Texas Parks and Wildlife Department,1 alleging owned and operated by the Texas Parks and negligence and Wildlife Department. The Mirandas asked a park ranger to recommend a campsite that would be [133 S.W.3d 221] safe for children. While standing next to a picnic table at the recommended campsite, a falling tree gross negligence. The Department filed a plea to branch approximately twelve inches in diameter the jurisdiction, to which it attached supporting and fifteen feet long struck Maria on the head. As evidence, and argued that sovereign immunity a result of the incident, Maria suffered extensive barred the Mirandas' claims. The trial court injuries to her head, neck, and spine. Ray suffered denied the plea to the jurisdiction and a mental anguish and other damages related to his unanimous court of appeals affirmed, holding wife's injuries. that the trial court could not consider evidence in Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

On May 7, 1999, the Mirandas filed suit plea, stating that the Mirandas pled a premises against the Department, alleging negligence and defect cause of action based on gross negligence later amended their suit to add gross negligence under the recreational use statute. 55 S.W.3d at claims. With respect to the gross negligence 652. The court of appeals rejected the claims, the Mirandas alleged that the Department Department's argument that there was no "knew of the dangers of its falling tree branches, evidence to support gross negligence, holding that failed to inspect, failed to prune, failed to alleviate "the trial court was not authorized to inquire into or remove the danger, and consciously and the substance of the claims because the deliberately failed to warn Plaintiffs of the Department did not specifically allege that the extremely dangerous condition," "knew that its Mirandas' allegations were pled merely as a sham property contained hidden, dangerous defect [sic] for the purpose of wrongfully obtaining in that its tree branches which have not been jurisdiction." Id. (citing Bland, 34 S.W.3d at 554 inspected or pruned regularly fall," failed "to and Rylander v. Caldwell, 23 S.W.3d 132, 135 make safe the dangerous condition of its campsite (Tex.App.-BAustin 2000, no pet.)). trees," and "failed to warn or make reasonably safe the dangerous condition of which it was The Department contends that the court of aware." In addition, the Mirandas alleged that the appeals erred in relying solely upon the Department's conduct was "willful, wanton, or conclusory allegations found in the Mirandas' grossly negligent." petition to affirm the trial courts denial of the Department's plea to the jurisdiction and in Over a year after the Mirandas filed suit and disregarding the Department's evidence after the parties conducted discovery, the submitted with its plea. Specifically, the Department filed a plea to the jurisdiction Department contends that gross negligence is a jurisdictional prerequisite to the Mirandas' claims [133 S.W.3d 222] and that its evidence affirmatively negates gross negligence. The Department further argues that and motion to dismiss, arguing that the Mirandas' because the Mirandas failed to plead specific facts allegations were insufficient to invoke a waiver of alleging gross negligence in their petition or the Department's sovereign immunity under the introduce evidence to controvert the evidence in standard established in the Tort Claims Act and the Department's plea, they failed to establish the recreational use statute.2 Tex. Civ. Prac. & subject matter jurisdiction to proceed with the Rem. Code §§ 101.001-.109; id. §§ 75.001.004. litigation. The Department attached evidence in support of its plea. The Mirandas filed a response to the After originally dismissing the petition for Department's plea and their third amended want of jurisdiction, we granted the Department's original petition. In their response, the Mirandas petition on motion for rehearing. Before we stated that they relied on evidence attached to the consider the substantive issues presented, we first Department's plea, including written discovery determine whether we have jurisdiction over this responses from the Department and the interlocutory appeal. deposition the Mirandas took of assistant park manager Craig VanBaarle. At the trial court's II. Conflicts Jurisdiction hearing on the Department's plea, the parties addressed the allegations in the Mirandas' third When there is no dissent in the court of amended original petition. The next day, the trial appeals, this Court has jurisdiction over court denied the plea. The Department filed this interlocutory appeals only if the court of appeals' interlocutory appeal claiming that the trial court decision "holds differently" or conflicts with "a erroneously denied its plea to the jurisdiction and prior decision of another court of appeals or of the motion to dismiss. Id. § 51.014(a)(8). The court of supreme court on a question of law material to a appeals affirmed the trial court's denial of the Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

decision of the case." Tex. Gov't Code concluded, "the plaintiff's pleadings are 22.001(a)(2);3 Schein v. Stromboe, 102 determinative unless the defendant specifically alleges that the amount was pleaded merely as a [133 S.W.3d 223] sham for the purpose of wrongfully obtaining jurisdiction." Id. S.W.3d 675, 687 (Tex.2002); Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, In this case, the court of appeals inaccurately 867 (Tex.2001). Two decisions conflict for stated and then misapplied Bland's holding. 55 purposes of establishing our jurisdiction under S.W.3d at 650-52. The court of appeals held that section 22.001(a)(2) when the two cases are so an inquiry behind the factual allegations pled in similar that the decision in one case is necessarily support of subject matter jurisdiction was conclusive of the decision in the other. Schein, improper unless the Department specifically 102 S.W.3d at 687-88; White, 46 S.W.3d at 867. alleged that the Mirandas' allegations were pled "The conflict must be on the very question of law merely as a sham to wrongfully obtain actually involved and determined, in respect of an jurisdiction. Id. at 652. This conflicts with our issue in both cases, the test being whether one holding in Bland that a court must consider would operate to overrule the other in case they evidence when necessary to resolve the were both rendered by the same court." Christy v. jurisdictional issues raised. 34 S.W.3d at 555; see Williams, 156 Tex. 555, 298 S.W.2d 565, 568-69 also County of Cameron v. Brown, 80 S.W.3d (1957) (citation omitted). 549, 556-57 (Tex.2002) (considering pleadings and limited jurisdictional evidence in evaluating The Department contends that this Court has forseeability element of premises defect claim jurisdiction over its interlocutory appeal because under the Tort Claims Act); Tex. Dep't of the court of appeals' decision here conflicts with Criminal Justice v. Miller, 51 S.W.3d 583, 587 our opinion in Bland. In Bland, we held that a (Tex.2001) (examining pleadings and limited trial court "may consider evidence and must do so jurisdictional evidence to determine whether when necessary to resolve the jurisdictional plaintiff affirmatively demonstrated waiver of issues raised." 34 S.W.3d at 555 (emphasis sovereign immunity); White, 46 S.W.3d at 868 added). While recognizing that "a dilatory plea (analyzing the facts alleged by the plaintiff and to does not authorize an inquiry so far into the the extent relevant, evidence submitted by the substance of the claims presented that plaintiffs parties, in considering whether plaintiff stated a are required to put on their case simply to claim for injuries caused by "motor-driven establish jurisdiction," we explained that "because equipment" under the Tort Claims Act). a court must not act without determining that it has subject-matter jurisdiction to do so, it should [133 S.W.3d 224] hear evidence as necessary to determine the issue before proceeding with the case." Id. at 554. "The In Bland, our preclusion of a trial court's inquiry court should, of course, confine itself to the behind the facts pled in determining subject evidence relevant to the jurisdictional issue." Id. matter jurisdiction was limited to the at 555. jurisdictional amount. 34 S.W.3d at 554. Even this bar could be lifted, and evidence of the In Bland, we included examples of when jurisdictional amount considered, in relevant evidence may be considered in circumstances in which an adverse party asserts determining whether jurisdiction has been that the amount in controversy was pled as a established. See id. at 554. We also observed that sham to obtain jurisdiction.4 Id. That when the defendant contends that the amount in circumstance is not at issue here. Thus, the court controversy falls below the trial court's of appeals' holding conflicts with the same jurisdictional limit, the trial court should limit its question of law that we decided in Bland, and the inquiry to the pleadings. Id. In that situation, we opinions cannot stand together. Schein, 102 Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

S.W.3d at 689. This conflict provides the basis for publicly owned automobiles, premises defects, our jurisdiction to consider the merits of the plea. and injuries arising out of conditions or use of See Tex. Gov't Code § 22.001(a)(2). property.'" Brown, 80 S.W.3d at 554 (quoting Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 611 III. The Department's Plea to the (Tex.2000)); see Tex. Civ. Prac. & Rem Code § Jurisdiction 101.021. Section 101.058 of the Tort Claims Act A. Sovereign Immunity further modifies a governmental unit's waiver of immunity from suit by imposing the limitations of In Texas, sovereign immunity deprives a trial liability articulated in the recreational use statute. court of subject matter jurisdiction for lawsuits in TEX. CIV. PRAC. & REM.CODE § 101.058 ("To which the state or certain governmental units the extent that Chapter 75 limits the liability of a have been sued unless the state consents to suit. governmental unit under circumstances in which Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 the governmental unit would be liable under [the (Tex.1999); Fed. Sign v. Tex. S. Univ., 951 S.W.2d Tort Claims Act], Chapter 75 controls."). 401, 405 (Tex.1997), superseded by statute on other grounds as stated in Little-Tex Insulation The recreational use statute provides: Co., 39 S.W.3d at 593; Duhart v. State, 610 S.W.2d 740, 741 (Tex.1980); Hosner v. DeYoung, If an owner, lessee, or occupant of real 1 Tex. 764, 769 (1847). The Texas Tort Claims Act property other than agricultural land gives provides a limited waiver of sovereign immunity. permission to another to enter the premises for TEX. CIV. PRAC. & REM.CODE §§ 101.001-.109. recreation, the owner, lessee, or occupant, by Sovereign immunity includes two distinct giving the permission, does not: principles, immunity from suit and immunity from liability. Jones, 8 S.W.3d at 638; Fed. Sign, (1) assure that the premises are safe for that 951 S.W.2d at 405. Immunity from liability is an purpose; affirmative defense, while immunity from suit deprives a court of subject matter jurisdiction. (2) owe to the person to whom permission is Jones, 8 S.W.3d at 638; Fed. Sign, 951 S.W.2d at granted a greater degree of care than is owed to a 405. The Tort Claims Act creates a unique trespasser on the premises; or statutory scheme in which the two immunities are co-extensive: "Sovereign immunity to suit is (3) assume responsibility or incur liability for waived and abolished to the extent of liability any injury to any individual or property caused by created by this chapter." Tex. Civ. Prac. & any act of the person to whom permission is Rem.Code § 101.025(a); State ex rel. State Dep't granted. of Highways & Pub. Transp. v. Gonzalez, 82 Id. § 75.002(c)(1)-(3). Recreational use S.W.3d 322, 326 (Tex.2002); Miller, 51 S.W.3d at includes camping and picnicking, the activities in 587. Thus, the Department is immune from suit which the Mirandas were engaged at the state unless the Tort Claims park when Maria was injured. Id. § 75.001(3). As [133 S.W.3d 225] applied to a governmental unit, the recreational use statute limits liability even if the person pays Act expressly waives immunity. See TEX. CIV. to enter the premises. Id. § 75.003(c) (excepting PRAC. & REM.CODE §§ 101.001(3)(A) (defining a governmental units from the chapter's exclusion governmental unit to include "all departments" of of landowners who charge a fee for recreational the state), 101.021, 101.025; White, 46 S.W.3d at use of land). 868. The recreational use statute limits the The Tort Claims Act expressly waives Department's duty for premises defects to that sovereign immunity in three areas: "`use of which is owed a trespasser.5 Id. The limited duty Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

owed a trespasser is not to injure that person jurisdiction to enter the particular judgment, and willfully, wantonly, or through gross negligence. capacity to act as a court.)"; Gentry v. Bowser, 2 Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, Tex.Civ.App. 388, 21 S.W. 569, 570 (Fort Worth 193 (Tex.1997). Therefore, a governmental unit 1893, no writ) ("Certainly the court has the right waives sovereign immunity under the recreational to hear the necessary evidence to enable it to use statute and the Tort Claims Act only if it is decide as to whether or not it has power to try the grossly negligent. Tex. Civ. Prac. & Rem.Code § case it is sought to have it adjudicate, whether the 75.002(c)-(d); City of Bellmead v. Torres, 89 allegations disclosing such want of jurisdiction S.W.3d 611, 613 (Tex.2002); Timmons, 947 appear in the petition of the plaintiff, or in the S.W.2d at 193. "[G]ross negligence involves two plea to the jurisdiction by the defendant."). components: (1) viewed objectively from the actor's standpoint, the act or omission Whether a court has subject matter complained of must involve an extreme degree of jurisdiction is a question of law. Tex. Natural Res. risk, considering the probability and magnitude of Conservation Comm'n v. IT-Davy, 74 S.W.3d the potential harm to others; and (2) the actor 849, 855 (Tex.2002). Whether a pleader has must have actual, subjective awareness of the risk alleged facts that affirmatively demonstrate a trial involved, but nevertheless proceed in conscious court's subject matter jurisdiction is a question of indifference to the rights, safety, or welfare of law reviewed de novo. Likewise, whether others." Louisiana-Pacific Corp. v. Andrade, 19 undisputed evidence of jurisdictional facts S.W.3d 245, 246 (Tex.1999) (citing Transp. Ins. establishes a trial court's jurisdiction is also a Co. v. Moriel, 879 S.W.2d 10, 23 (Tex.1994)). question of law. However, in some cases, disputed evidence of jurisdictional facts that also implicate B. Standard of Review the merits of the case may require resolution by the finder of fact. See Gates v. Pitts, 291 S.W. 948, Sovereign immunity from suit defeats a trial 949 (Tex.Civ.App.-Amarillo 1927, no writ); court's subject matter jurisdiction Gentry, 21 S.W. at 570; see also Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 n. 3 (1st Cir.2001) [133 S.W.3d 226] (observing that in certain situations, the predicate facts can be so inextricably linked to the merits of and thus is properly asserted in a plea to the the controversy that the district court may "defer jurisdiction. Jones, 8 S.W.3d at 637; see also resolution of the jurisdictional issue until the time Hosner, 1 Tex. at 769 (recognizing as appropriate of trial"); Cameron v. Children's Hosp. Med. Ctr., procedure the challenge of a courts subject matter 131 F.3d 1167, 1170 (6th Cir.1997) ("[W]hether a jurisdiction through a plea to the jurisdiction). district court has subject matter jurisdiction is a The trial court must determine at its earliest question for the court, not a jury, to decide, even opportunity whether it has the constitutional or if the determination requires making factual statutory authority to decide the case before findings, unless the jurisdictional issue is allowing the litigation to proceed. Austin & inextricably bound to the merits of the case."); N.W.R. Co. v. Cluck, 97 Tex. 172, 77 S.W. 403, Williamson v. Tucker, 645 F.2d 404, 413 n. 6, 416 405 (1903) ("[T]here can be no doubt that the n. 10 (5th Cir.1981) (suggesting that a federal courts of Texas must look to the Constitution of district court's role in determining jurisdictional this state, the enactments of the Legislature, and facts may be more limited in cases in which the the common law for their authority to proceed jurisdictional attack implicates the merits of ....);" see also State Bar of Tex. v. Gomez, 891 plaintiff's cause of action). In this case, we S.W.2d 243, 245 (Tex.1994) ("As a general address a plea to the jurisdiction in which proposition, before a court may address the undisputed evidence implicates both the subject merits of any case, the court must have matter jurisdiction of the court and the merits of jurisdiction over the party or the property subject the case. to the suit, jurisdiction over the subject matter, Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

When a plea to the jurisdiction challenges the 67 S.Ct. 1009, 91 L.Ed. 1209, (1947), overruled by pleadings, we determine if the pleader has alleged implication on other grounds by Larson v. facts that affirmatively demonstrate the court's Domestic & Foreign Commerce Corp., 337 U.S. jurisdiction to hear the cause. Tex. Ass'n of Bus. v. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) Tex. Air Control Bd., 852 S.W.2d 440, 446 (observing that as a general rule, district courts (Tex.1993). We construe the pleadings liberally in have authority to inquire "into the facts as they favor of the plaintiffs and look to the pleaders' exist" "by affidavits or otherwise" as well as the intent. Id. If the pleadings do not contain pleadings when determining whether the court sufficient facts to affirmatively demonstrate the has subject matter jurisdiction).6 If the evidence trial courts jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the [133 S.W.3d 228] issue is one of pleading sufficiency and the plaintiffs creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to [133 S.W.3d 227] the jurisdiction, and the fact issue will be resolved by the fact finder. However, if the relevant should be afforded the opportunity to amend. evidence is undisputed or fails to raise a fact Brown, 80 S.W.3d at 555. If the pleadings question on the jurisdictional issue, the trial court affirmatively negate the existence of jurisdiction, rules on the plea to the jurisdiction as a matter of then a plea to the jurisdiction may be granted law. without allowing the plaintiffs an opportunity to amend. Id. We acknowledge that this standard generally mirrors that of a summary judgment under Texas However, if a plea to the jurisdiction Rule of Civil Procedure 166a(c). We adhere to the challenges the existence of jurisdictional facts, we fundamental precept that a court must not consider relevant evidence submitted by the proceed on the merits of a case until legitimate parties when necessary to resolve the challenges to its jurisdiction have been decided. jurisdictional issues raised, as the trial court is This standard accomplishes this goal and more. It required to do. See Bland, 34 S.W.3d at 555 also protects the interests of the state and the (confining the evidentiary review to evidence that injured claimants in cases like this one, in which is relevant to the jurisdictional issue). When the the determination of the subject matter consideration of a trial court's subject matter jurisdiction of the court implicates the merits of jurisdiction requires the examination of evidence, the parties' cause of action. The standard allows the trial court exercises its discretion in deciding the state in a timely manner to extricate itself whether the jurisdictional determination should from litigation if it is truly immune. However, by be made at a preliminary hearing or await a fuller reserving for the fact finder the resolution of development of the case, mindful that this disputed jurisdictional facts that implicate the determination must be made as soon as merits of the claim or defense, we preserve the practicable. Id. at 554. Then, in a case in which parties' right to present the merits of their case at the jurisdictional challenge implicates the merits trial. Similar to the purpose of a plea to the of the plaintiffs' cause of action and the plea to the jurisdiction, which is to defeat a cause of action jurisdiction includes evidence, the trial court for which the state has not waived sovereign reviews the relevant evidence to determine if a immunity (usually before the state has incurred fact issue exists. The United States Supreme the full costs of litigation), the purpose of Court and all of the federal circuits have summary judgments in Texas is "`to eliminate authorized federal district courts to consider patently unmeritorious claims and untenable evidence in deciding motions to dismiss for lack defenses.' "Casso v. Brand, 776 S.W.2d 551, 556 of subject matter jurisdiction. See Fed.R.Civ.P. (Tex.1989) (quoting City of Houston v. Clear 12(b)(1); Land v. Dollar, 330 U.S. 731, 735 & n. 4, Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

(Tex.1979)). By requiring the state to meet the the hearing, it does not specify the length of a summary judgment standard of proof in cases like notice period and is therefore presumably subject this one, we protect the plaintiffs from having to to the three-day notice period of Rule 21. Tex.R. "put on their case simply to establish Civ. P. 21. Rule 120a allows the trial court to order jurisdiction." Bland, 34 S.W.3d at 554. Instead, a continuance and allow time for discovery if the after the state asserts and supports with evidence development of the case requires it. Nothing that the trial court lacks subject matter prevents a trial court from doing the same with a jurisdiction, we simply require the plaintiffs, plea to the jurisdiction where evidence is when the facts underlying the merits and subject necessary. matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the Many other procedures in Texas practice jurisdictional issue. See Huckabee v. Time ranging from a trial court's rulings on motions to Warner Entm't Co. L.P., 19 S.W.3d 413, 420 strike intervention to the timing of a class (Tex.2000); Phan Son Van v. Pena, 990 S.W.2d certification decision to even the alteration of the 751, 753 (Tex.1999). summary judgment notice periods—also "depend[] ... upon the wise exercise of discretion Appellate courts reviewing a challenge to a by the trial court." Union Carbide Corp. v. B.D. trial court's subject matter jurisdiction review the Moye, 798 S.W.2d 792, 794 (Tex.1990) (Hecht, J., trial court's ruling de novo. IT-Davy, 74 S.W.3d at concurring); see, e.g., TEX.R. CIV. P. 42(c)(1)(A) 855. When reviewing a plea to the jurisdiction in (directing a trial court to determine whether a suit which the pleading requirement has been met and may be maintained as a class action "at an early evidence has been submitted to support the plea practicable time"); Tex.R. Civ. P. 166a(c) ("Except that implicates the merits of the case, we take as on leave of court, with notice to opposing counsel, true all evidence favorable to the nonmovant. See the motion and any supporting affidavits shall be Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, filed and served at least twenty-one days before 911 (Tex.1997). We indulge every reasonable the time specified for hearing.") (emphasis inference and resolve any doubts in the added); Guaranty Fed. Sav. Bank v. Horseshoe nonmovant's favor. Id. Operating Co., 793 S.W.2d 652, 657 (Tex.1990) (observing that the trial court has broad In his dissent Justice Jefferson criticizes this discretion in ruling on a motion to strike standard of review as depriving plaintiffs intervention, even though Rule 60 does not responding to a plea of the procedural protections provide explicit guidelines for the scheduling of a of a motion for summary judgment, including a hearing or the evaluation of evidence). Thus, the twenty-one Texas civil procedural scheme entrusts many scheduling and procedural issues to the sound [133 S.W.3d 229] discretion of the trial court, subject to appellate review. Of course, Texas practice and rules also day notice period or an adequate time to conduct allow the parties to request additional time to discovery. Tex.R. Civ. P. 166a(c), 166a(i). prepare for certain hearings or to conduct However, the scheduling of a hearing of a plea to discovery upon a showing of sufficient cause, and the jurisdiction is left to the discretion of the trial the court's ruling on such a motion is reviewed for court, which is in the best position to evaluate the an abuse of discretion. See, e.g., TEX.R. CIV. P. appropriate time frame for hearing a plea in any 166a(g), 247, 251, 252. We note, also, that federal particular case. This procedure does not practice does not prescribe a procedure for the dramatically differ from that outlined in Texas consideration of jurisdictional evidence but Rule of Civil Procedure 120a governing special instead allows the district courts to tailor a appearances. Although Rule 120a requires any method to suit the requirements of the cases affidavits to be used at a hearing on a special before them. Land, 330 U.S. at 735 n. 4, 67 S.Ct. appearance to be served at least seven days before 1009; Moran, 27 F.3d at 172. In any event, the Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

Mirandas do not complain that they had an branch that severely injured her; (3) the inadequate opportunity to conduct sufficient unpruned, uninspected tree branches created a discovery, nor did they request a continuance to dangerous, defective condition on the premises of do so. which the Department was aware; (4) the Department knew of the dangers of its falling tree C. Waiver of Immunity Based on Premises branches but failed to inspect, prune, alleviate the Defects dangers, or otherwise make safe the dangerous 1. The Mirandas' Pleadings conditions of its trees; (5) the Department consciously and deliberately failed to warn the The Mirandas contend that their pleadings Mirandas of the extremely dangerous condition; fall within the Tort Claims Act's waiver of and (6) the Department's conduct was willful, immunity for both premises defects and injuries wanton, or grossly negligent. A liberal arising out of conditions or use of property. The construction of these allegations, as required, Act provides that a state agency is liable for injury demonstrates that the Mirandas stated a claim and death caused by "a condition or use of against the Department for gross negligence. This tangible personal or real property if the conclusion should not be read as a suggestion that governmental unit would, were it a private the Department has a duty to inspect every tree in person, be liable to the claimant according to each of the many parks that the Department Texas law." Tex. Civ. Prac. & Rem.Code § manages. Instead, in this case, the Mirandas 101.021(2). The Mirandas' pleadings allege alleged sufficient facts to survive a plea to the injuries caused by a falling tree limb, which falls jurisdiction based solely on the pleadings. under the definition of real property i.e., "`land, and generally whatever is erected or growing Justice Jefferson's dissent contends that the upon or affixed Mirandas' third amended petition does not state a claim for gross negligence because the allegations [133 S.W.3d 230] are conclusory and do not assert enough specific facts alleging that the Department had "actual to land.'" San Antonio Area Found. v. Lang, 35 subjective awareness of the risk involved and S.W.3d 636, 640 (Tex.2000) (quoting Chastain v. proceeded, nevertheless, with conscious Koonce, 700 S.W.2d 579, 584 (Tex.1985) indifference. He suggests that to state a claim the (Gonzalez, J., concurring)). The Mirandas' Mirandas should have pled that the Department allegation of an injury caused by a tree limb had actual knowledge that the branch would fall falling on Maria Miranda constitutes an allegation yet nevertheless instructed Maria to camp of a condition or use of real property and is an beneath it." 133 S.W.3d at 242. The pleading allegation of a premises defect. hurdle he seeks to erect would be groundbreaking, indeed, extending beyond To state a claim under the recreational use current requirements under our rules of civil statute, the Mirandas must allege sufficient facts procedure and case law. Rules 45 and 47 require to establish that the Department was grossly that the original pleadings give a short statement negligent. See TEX. CIV. PRAC. & REM.CODE §§ of the cause of action sufficient to give the 75.002(c)-(d), 101.021, 101.025, 101.058. The opposing party fair notice of the claim involved. Mirandas contend that both their allegations and Tex.R. Civ. P. 45, 47; Paramount Pipe & Supply the evidence presented on the plea establish Co., Inc. v. Muhr, 749 S.W.2d 491, 494 claims of gross negligence. Looking first to the (Tex.1988); Castleberry v. Goolsby Bldg. Corp., relevant factual allegations in the third amended 617 S.W.2d 665, 666 (Tex.1981). Rule 45 does not petition, the Mirandas claim that (1) they require that the plaintiff set out in his pleadings specifically asked the Department's employee for the evidence upon which he relies to establish his a recommendation of a safe camping location; (2) asserted cause of action. Muhr, 749 S.W.2d at at the campsite, Maria was struck by a falling tree 494-95. While it is clear that "[t]he party suing Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

the governmental entity must establish the state's The Department challenged the Mirandas' consent, which may be alleged either by reference pleadings and also submitted evidence to to a statute or to express legislative permission," controvert the factual allegations supporting Jones, 8 S.W.3d at 638, and that "[m]ere jurisdiction. We consider the relevant evidence reference to the Tort Claims Act does not submitted to decide this jurisdictional challenge. establish the state's consent to be sued and thus is See Bland, 34 S.W.3d at 555. The Department not enough to confer jurisdiction on the trial attached the deposition testimony of Craig court," Miller, 51 S.W.3d at 587, the Mirandas' VanBaarle, the assistant park manager for Garner pleadings allege sufficient facts to bring their State Park, to its plea to the jurisdiction. claims under the recreational use statute and the VanBaarle testified that while the park normally Tort Claims Act. inspects and maintains its trees, tree limbs are only pruned or trimmed if they appear to be dead. [133 S.W.3d 231] According to VanBaarle, the tree limb that fell on Maria was living. He testified that both dead and Although facts alleged in a petition should living tree limbs have fallen at various locations in not be improperly stretched to state a claim for the park. He testified that the park knows that gross negligence, Justice Jefferson's pleading tree limbs can fall and have fallen on standard for gross negligence would be virtually approximately twenty occasions. However, no one impossible to meet, even when grossly negligent had ever been injured by falling tree limbs. He conduct occurred, absent an admission of also testified that the tree limb that injured Maria liability. His standard requires specific factual Miranda fell from fifty feet above the campsite allegations in an original petition of what the and that the park employees would not have been defendant knew and thought i.e., its state of mind. able to see the limb clearly without climbing the His pleading hurdle would require discovery into tree even if the limb had been dead. the very extrinsic facts which he bemoans consideration of in the plea to the jurisdiction. In addition, the Department attached the The Mirandas' third amended petition provided affidavit of Roy B. Inks, operations and sufficient notice to ascertain the nature and basic maintenance specialist at Garner State Park. Inks' issues of the controversy and the evidence that responsibilities included supervision of park probably would be relevant. maintenance including preservation and maintenance of trees at campsites. According to JUSTICE JEFFERSON also contends that the his affidavit, Inks inspected the campsite after the Mirandas are entitled to replead. As a practical accident. His examination of the tree and the matter, the Mirandas have already repled to try to fallen branch failed to reveal any indication that cure the "defects" that Justice Jefferson raises. the branch was dead, decaying, or in need of The Mirandas no doubt filed their third amended pruning. Inks opined that there was no reason to petition, in which allegations of gross negligence conclude that the tree presented a dangerous or were raised for the first time in this lawsuit, in hazardous condition. Inks further opined that the response to the Department's plea to the branch that struck Maria "broke away from the jurisdiction. However, because the Mirandas' tree as a result of an unpredictable and third amended petition satisfies the notice unforseeable phenomenon known as `sudden pleading requirements of our procedural rules, branch drop syndrome.'" Inks explained that "[i]t the Mirandas do not need, nor are they entitled would be rare for anyone to be able to predict to, an opportunity to replead. See Tex.R. Civ. P. which branches will fall and which ones will not" 47. as a result of this phenomenon. The Mirandas cite the Department's evidence as proof that the 2. The Department's Evidence Department knew about sudden branch drop syndrome and did nothing about it, thus establishing gross negligence. The Mirandas did Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

not cite any controverting evidence in their a useful procedural vehicle in Texas for over 150 response to the Department's plea. years, and that use of its counterpart (Federal Rule of Civil Procedure 12(b)(1)) to challenge [133 S.W.3d 232] subject matter jurisdiction in the federal judicial system when evidence is involved has been We first examine this evidence to determine authorized by every federal circuit court, the whether it establishes that the Department was Court declines to abolish by written opinion such grossly negligent. We have observed that with pleas to the jurisdiction. regard to the subjective component of gross negligence, it is the defendant's state of mind The plea to the jurisdiction was included in whether the defendant knew about a peril but procedural rules promulgated by this Court in nevertheless acted in a way that demonstrated 1877 and has been used as a procedural vehicle to that he did not care about the consequences that challenge subject matter jurisdiction in trial separates ordinary negligence from gross courts for over a century and a half. See negligence. Louisiana-Pacific, 19 S.W.3d at 246- TEX.R.CIV. P. 85; Tex. Dist. Ct. R. 7, 47 Tex. 597, 47. We search the record for evidence that the 617 (1877); Hosner, 1 Tex. at 769. In fact, as early Department's acts or omissions demonstrate that as 1893, Texas courts indicated that evidentiary it did not care about the consequences to the challenges to subject matter jurisdiction raised in Mirandas of a known extreme risk of danger. The pleas to the jurisdiction should be considered by Mirandas fail to point to any evidence, and the trial courts. See, e.g., Gates, 291 S.W. at 949; record contains no evidence, that shows that Gentry, 21 S.W. at 570. With such a long lineage, sudden branch drop syndrome constitutes an one wonders why a plea to jurisdiction does not extreme risk of danger or that the Department qualify as a "standard" or "established" motion. had actual, subjective knowledge of that risk but Perhaps a second mention in the Texas Rules of nevertheless proceeded in conscious disregard for Civil Procedure would suffice. the safety of others. Nor is there any evidence that the Department could have taken any reasonable We decide that refining the rules for steps to minimize the dangers of an considering a plea supported by evidence is a "unforseeable" and "unpredictable" phenomenon. better approach than eliminating the motion. This We conclude that the evidence in the record approach is consistent with precedent, is not establishes that the Department was not grossly disruptive to civil practice going back more than a negligent and that the Mirandas have failed to century, and furthers the legislative purpose of raise a fact question regarding the Department's timely adjudicating subject matter jurisdiction alleged gross negligence. The Mirandas fall short when the immunity and liability facts are the of satisfying the requirements for the Legislature's same. limited grant of a waiver of sovereign immunity from suit under the applicable statutes. Therefore, There is a suggestion in the dissents that the trial court lacked subject matter jurisdiction. confirming in this opinion the authority of trial courts to consider evidence in a plea to the 3. Dissent jurisdiction is unfair to the

In his dissent, Justice Brister takes the view [133 S.W.3d 233] that all pleas to jurisdiction based on immunity must take the form of two "standard" or parties in this case. The facts undercut this "established" motions—either special exceptions assertion. At the trial court, both parties relied on or motions for summary judgment. 133 S.W.3d at extrinsic evidence in briefing the plea, and both 239-40. This approach might be appropriate, if parties had extrinsic evidence on file with the we were starting from scratch. Given that we are court. Furthermore, plaintiffs expressly stated in not writing on a blank slate, that pleas have been their response to the plea that they were relying Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

on "Defendants' responses to discovery requests, 869 S.W.2d 446, 450 (Tex.App.-Corpus Christi and upon the deposition of Craig VanBaarle [the 1993, writ denied); Hawley v. State Dep't of Department's assistant park manager]." In fact, Highways and Pub. Transp., 830 S.W.2d 278, the Mirandas deposed VanBaarle months before 281 (Tex.App.-Amarillo 1992, no writ). the Department filed its plea. There is good Accordingly, we conclude that the Mirandas have reason why Plaintiffs have not argued unfair not established a cause of action under the Tort surprise. Given Texas precedents and the actions Claims Act for condition or use of tangible of the parties, there was none. property separate from their premises defect claim. D. Waiver of Immunity Based on Condition or Use of Tangible Property IV. Conclusion

The Mirandas assert that their pleadings also Trial courts should decide dilatory pleas early state a cause of action for injuries resulting from a at the pleading stage of litigation if possible. Here, condition or use of tangible property. The the Legislature's mandate is not so simple. By allegations' in the Mirandas third amended statute, waiver of sovereign immunity for petition concern only the Department's failure to recreational use of the Department's premises can act to reduce risks of falling tree limbs and failure only be effected by a showing that it acted with to warn the Mirandas of the risk of falling tree gross negligence. Due to the standard erected limbs. These allegations comprise the elements of (gross negligence), the determination of whether their premises defect claim. The Tort Claims Act's immunity was waived may require consideration scheme of a limited waiver of immunity from suit of extrinsic facts after reasonable opportunity for does not allow plaintiffs to circumvent the targeted discovery. To preclude consideration of heightened standards of a premises defect claim extrinsic facts when necessary to decide a plea to contained in section 101.022 by re-casting the the jurisdiction would require a trial on the merits same acts as a claim relating to the negligent for many cases that do not need it, waste the condition or use of tangible property. See State v. resources of the courts and the parties in the case, Tennison, 509 S.W.2d 560, 562 (Tex.1974) and (rejecting the argument that the Tort Claims Act "creates two entirely separate grounds of liability" [133 S.W.3d 234] for negligent use or condition of real property and premise defect, but instead interpreting the involve state courts in rulings on the merits in premises defect provision to further limit the cases over which they have no jurisdiction. waiver of immunity for negligent use or condition of real property). Other Texas courts have For the reasons explained, we conclude that recognized that to allow plaintiffs to characterize the Department established that it was not grossly premises defect claims as claims caused by the negligent and that the Mirandas failed to raise a negligent condition or use of personal or real fact issue on that point. Thus, the trial court property would render the Legislature's lacked subject matter jurisdiction over the action. heightened requirements for premises defect The judgment of the court of appeals is reversed claims meaningless. See, e.g., State v. Estate of and the Mirandas' action dismissed for lack of Horton, 4 S.W.3d 53, 54 (Tex.App.-Tyler 1999, no subject matter jurisdiction. pet.) (stating that once a claim is determined to be Justice JEFFERSON filed a dissenting a premises defect, the claimant is limited to the opinion. provisions delineated by the section on premises defects and may not assert a general negligence Justice BRISTER filed a dissenting opinion, theory); accord Laman v. Big Spring State Hosp., in which Justice O'NEILL and Justice 970 S.W.2d 670, 671-72 (Tex.App.-Eastland 1998, SCHNEIDER joined. pet. denied); Univ. of Texas Pan Am. v. Valdez, Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

Justice JEFFERSON, dissenting. burden that "does not involve a significant inquiry into the substance of the claims." Id. at 554. I dissent on two grounds. First, I do not agree Similarly, we that our precedent requires the Mirandas to produce evidence on all essential elements of [133 S.W.3d 235] their cause of action to establish the trial court's jurisdiction. The Court's holding is inconsistent observed that a challenge to personal jurisdiction with the distinction Bland draws between may "touch on the merits of the case," but is not requiring the plaintiff to prove preliminary facts aimed at "whether the defendant may be liable as as a predicate to the trial court's power to alleged." Id. at 555. That theme—that a plaintiff is entertain the merits, and requiring her to present not required to litigate the merits to establish the merits themselves on pain of dismissal. Bland jurisdiction—was emphasized throughout our Indep. School Dist. v. Blue, 34 S.W.3d 547 opinion. Id. at 554. We cautioned that "the proper (Tex.2000).1 function of a dilatory plea does not authorize an inquiry so far into the substance of the claims Second, I cannot agree that the Mirandas' presented that plaintiffs are required to put on pleading has alleged sufficient facts to confer their case simply to establish jurisdiction." Id. jurisdiction on the trial court. The Mirandas assert that the Department was aware that I interpret Bland to mean that if a plea to the branches fall from trees, but consciously chose jurisdiction requires the trial court to wade deeply not to post warnings. Is that gross negligence? into the lawsuit's merits, it is not a valid plea. Yet No. Texas law does not impose on landowners a today the Court immerses itself in the merits by duty to warn trespassers about all conceivable reaching and deciding the ultimate issue in the dangers inherent in nature. What if you add the case: "... the evidence in the record establishes allegation that the Department did not inspect or that the Department was not grossly negligent prune trees in Garner State Park? The Court and that the Mirandas have failed to raise a fact today makes clear that the Department has no question regarding the Department's alleged duty to inspect trees in state parks. 133 S.W.3d gross negligence." 133 S.W.3d at 221 (emphasis 242. If there is no duty, a complaint about the added). This holding misapplies Bland because it failure to inspect or prune cannot possibly permits a defendant, on painfully short notice and constitute a gross negligence pleading sufficient before evidence has been developed, to force the to invoke the courts jurisdiction. But the plaintiff either to present evidence on the ultimate Mirandas used the words "gross negligence." Not issue in the lawsuit, or lose the right to a jury trial enough. The Mirandas pleaded no facts even on the merits. remotely suggesting the Department was aware the limb was about to fall, much less that it The Court asserts that its standard "mirrors would injure Maria. that of a summary judgment...." 133 S.W.3d 228. It is a poor reflection. Our summary judgment I rule, unlike the Court's standard, contains Bland, in Proper Context procedural safeguards to ensure that the merits are not determined before the nonmovant has had In deciding a plea to the jurisdiction, the trial an adequate time for discovery and an court must consider evidence "when necessary to opportunity to respond. Tex.R. Civ. P. 166a(c) resolve the jurisdictional issues raised." Bland, 34 ("Except on leave of court, with notice to S.W.3d at 555. That quote must be read in opposing counsel, the motion and any supporting context. We noted that when a defendant affidavits shall be filed and served at least twenty- challenges an organization's standing to sue, the one days before the time specified for hearing. organization must present evidence of its nature Except on leave of court, the adverse party, not and purpose before it can pursue its claims—a later than seven days prior to the day of hearing Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

may file and serve opposing affidavits or other less than a party's ability to present its case on the written response."); 166a(i) ("After adequate time merits. for discovery, a party without presenting summary judgment evidence may move for Under Rule 21, a plea to the jurisdiction may summary judgment on the ground that there is no be served "three days before the time specified for evidence of one or more essential elements of a the hearing unless otherwise provided by these claim or defense....)". As a uniform rule of rules or shortened by the court." Id. The rule does procedure, the summary judgment rule leaves not mention an adverse party's right to present little to the imagination. A party whose claim is opposing evidence, which may explain why the subject to adjudication on the merits is entitled to Mirandas did not controvert the Department's advance notice that it must present evidence and plea with their own evidence. Compiling evidence has an adequate opportunity to respond.2 The of simple negligence on three days' notice— procedure the Court adopts today, in contrast, evidence that typically requires months of will vary from county to county and from judge to discovery—would be daunting in itself; but where, judge. as here, a plaintiff must prove gross negligence, her ability to contest the Department's The Court cites a number of federal decisions jurisdictional plea could be essentially non- holding that when jurisdictional facts are existent. intertwined with the merits, the trial court, in considering evidence, should either employ the The Mirandas had no reason to suspect that a standard applicable to a summary judgment or summary judgment standard applied, requiring leave the jurisdictional them to controvert the Department's evidence, because the Department's plea to the jurisdiction [133 S.W.3d 236] was subject to Bland. 34 S.W.3d at 554-55 (trial court not authorized to inquire so far into the determination to trial. 133 S.W.3d 228; see also 2 substance of the claims presented that plaintiffs James Wm. Moore Et al., Moore's Federal are required to put on their case simply to Practice § 12.30[3], at 12-37 to 12-38 (3d establish jurisdiction). At a minimum, I would ed.2003). I do not disagree with that proposition, hold that if a summary judgment standard but it does not answer a fundamental question. applies, the trial court must so advise the parties This Court must decide what procedure governs and employ Rule 166a procedures. in Texas when a plea to the jurisdiction is treated like a motion for summary judgment. II Pleading Requirements Under As Justice Brister observes, no procedural Recreational Use Statute rule currently requires a trial court to advise the plaintiff that evidence may or must be presented Rather than dismiss the case on the merits in opposition to a plea to the jurisdiction, and no under a summary judgment standard, I would rule requires an adequate time for discovery examine the pleadings to determine whether the before the court dismisses a case on the merits. Mirandas alleged facts sufficient to invoke the 133 S.W.3d at 237. By default, then, trial courts trial court's jurisdiction. See Tex. Ass'n Bus. v. will turn to Rule 21. Tex.R. Civ. P. 21. Presumably, Tex. Air Control Bd., 852 S.W.2d 440, 446 if a trial court's ruling comports with Rule 21's (Tex.1993) (plaintiff has burden to allege facts minimum procedural requirements, a dismissal affirmatively demonstrating that the trial court on the merits will survive any challenge based on has subject matter jurisdiction). In my view, the an abuse of discretion standard. We should ask Mirandas' pleading falls short. Just as the ourselves, then, whether the Rule's minimum Department owes no duty to warn trespassers requirements are adequate when the stakes are no that rattlesnakes may strike, it owes no duty to advise statutory trespassers that tree limbs fall in Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

state parks. The Mirandas did not allege that the The Mirandas' gross negligence allegations Department had so much as an inkling that the stated: branch in question would fall. See Tex. Civ. Prac. & Rem Code § 41.001(7); see also Transp. Ins. Co. Plaintiffs would show the court that the v. Moriel, 879 S.W.2d 10, 21-22 (Tex.1994) occurrences made the basis of this suit and the (explaining that gross negligence requires at a resulting injuries and damages set out below were minimum that the defendant subjectively "have a direct and proximate result of Defendants actual awareness of the extreme risk created by negligence in failing to make safe the dangerous his or her conduct"). Rather, she alleges that the condition of its campsite trees. Defendant's Department is generally aware that tree limbs fall, conduct was willful, wanton, or grossly negligent. just as it must know of countless other natural Defendant failed to warn or make reasonably safe the dangerous condition of which it was aware [133 S.W.3d 237] and which Plaintiffs were unaware.

perils in state parks. Because the Department We can accept as true the Mirandas' owes no duty to warn trespassers that forces of allegation that the Department knew "its tree nature may cause random harm, I would hold, branches which have not been inspected or contrary to the Courts conclusion, that the pruned regularly fall" and did not warn them Mirandas pleading does not invoke the trial about that contingency. That pleading, however, courts jurisdiction. is of neutral value in a suit against the Department, which would owe no duty to warn The Mirandas did not allege that the unless it had actual knowledge that the branch Department was subjectively aware of any specific would fall yet nevertheless instructed Maria to risk of injury. See id. Instead, they alleged: camp beneath it. See id.; see also Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 Defendant knew of the dangers of its falling (Tex.2001) (reiterating that gross negligence tree branches, failed to inspect, failed to prune, requires that "the actor must have actual, failed to alleviate or remove the danger, and subjective awareness of the risk involved, but consciously and deliberately failed to warn nevertheless proceed in conscious indifference to Plaintiffs of the extremely dangerous condition. the rights, safety, or welfare of others."). Indeed, Plaintiffs paid a campsite rental fee and nowhere in their pleadings do the Mirandas assert specifically asked defendant to assign them a safe that the Department was aware of any risk campsite. Defendant knew that its property associated with either the tree or the campsite contained hidden, dangerous defect (sic) in that below. Instead, they simply recast allegations of its tree branches which have not been inspected simple negligence into a claim for gross or pruned regularly fall. Defendant did not warn negligence. Plaintiffs of the hidden danger. * * * We are bound, however, to analyze their Plaintiffs would show the court that the claims in light of the policies underlying the occurrence made the basis of this suit and the recreational use statute. The statute exists to resulting damages set out below were a direct and encourage landowners to allow the public to enjoy proximate result of Defendants negligence and its outdoor recreation on their property by limiting agents, servants, and officers, both of commission their liability for personal injury. City of Bellmead or omission, or both separately and collectively, in v. Torres, 89 S.W.3d 611, 617 (Tex.2002) failing to properly maintain and inspect the (Hankinson, J. dissenting). To accomplish that campsite where Plaintiffs were injured, in failing objective, the Legislature has placed stringent to properly maintain the campsite in a safe parameters around the duty landowners owe condition and/or in failing to exercise ordinary "trespassers." See TEX. CIV. PRAC. & REM. care to protect Plaintiffs from the danger. Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

CODE § 75.002. The duty implicit in the would establish that the claims come within an Mirandas pleading, however, would require express waiver of sovereign immunity before the trial court has jurisdiction to proceed. Just as [133 S.W.3d 238] mere reference to the Texas Tort Claims Act is insufficient to confer jurisdiction, Miller, 51 the Department to warn all visitors of all perils S.W.3d at 587, the trial court's jurisdiction is not commonly confronted by human interaction with satisfied by mere notice that the plaintiff is nature. The scope of that proposed duty— pursuing a gross negligence claim. The Mirandas obligating the Department to post warnings about have failed to affirmatively establish the court's all naturally occurring dangers—would create jurisdiction because, even if all of the facts alleged such an insurmountable practical and economic in their pleading were true, those facts would not burden as to frustrate the legislatures intent to amount to gross negligence and therefore would encourage landowners to make property available not establish a waiver of sovereign immunity for recreational use. under the recreational use statute.

Without allegations that the Department was When a plaintiff fails to plead facts aware that the limb would fall and nevertheless establishing jurisdiction, the issue is ordinarily instructed Maria to camp below it, the Mirandas one of pleading sufficiency and the plaintiff have not pleaded facts sufficient to proceed on should be afforded the opportunity to amend. their claim under the recreational use statute. I do County of Cameron v. Brown, 80 S.W.3d 549, not mean to suggest that merely because the 555 (Tex.2002). A court may grant a plea to the injury is alleged to have resulted from a natural jurisdiction without affording an opportunity to condition, the trial court is thereby deprived of amend only when the pleadings "affirmatively jurisdiction. For example, the trial courts negate" the existence of jurisdiction, a jurisdiction would be properly invoked by a circumstance not presented here. Id. In this case, pleading that the Department told the plaintiff it however, the trial court overruled the was safe to dive into waters the Department knew Departments plea to the jurisdiction, concluding were so shallow that the dive posed a likelihood of implicitly that the Mirandas pleadings were serious injury, and that the plaintiff was severely sufficient to confer jurisdiction, and the court of injured diving in reliance on that assurance. Here, appeals affirmed. Consequently, the Mirandas by contrast, the Mirandas did not plead that the have never been placed on notice that they must Department directed Maria to a campsite cure the jurisdictional defect. It may well be that knowing that an overhanging tree branch would the facts will not lend themselves to a pleading likely fall on her and cause serious injury. that would confer jurisdiction, but we are not equipped to make that determination at this stage I understand fully the Courts holding that the of the proceedings. Mirandas gave "fair notice" that they were pursuing a gross negligence claim. Fair-notice III pleadings, however, must be viewed in this case Conclusion through the prism of sovereign immunity, which deprives a court of jurisdiction unless the State We need not and should not inquire into the has expressly waived immunity. Tex. Dep't of ultimate merits of this case. I would Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). The plaintiffs' pleadings against the State must [133 S.W.3d 239] affirmatively establish jurisdiction to overcome the contrary presumption. Tex. Dep't of Crim. remand the cause to the trial court to give the Justice v. Miller, 51 S.W.3d 583, 587 Mirandas an opportunity to amend their petition (Tex.2001)(quoting Tex. Assn. Bus., 852 S.W.2d to plead facts establishing jurisdiction. at 446). The plaintiff must plead facts that, if true, Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

Justice BRISTER, joined by Justice O'NEILL [133 S.W.3d 240] and Justice SCHNEIDER, dissenting. propriety of the remedy rather than the injury.8 The Legislature has provided that state park One hundred years ago, this Court addressed a visitors are owed the same duty of care as variety of matters as pleas to the jurisdiction, trespassers;1 thus, the plaintiffs in this case had to including objections based on personal prove the Parks and Wildlife Department caused jurisdiction,9 subject-matter jurisdiction,10 deliberate, wilful, or malicious injury.2 All dominant jurisdiction, venue, capacity,13 and 11 12

members of the Court agree that either their conflict of laws.14 petition or their summary judgment evidence fails to do so, though we disagree which. Since then, there has been a steady shift away from the common-law forms of pleading to the The Mirandas alleged Maria suffered severe more specific motion practice set out in the rules injuries caused by the Department's gross of civil procedure. For example, a defendant negligence; specifically, they alleged the objecting to venue today must file a motion to Department knew tree limbs could fall, and failed transfer that complies with the form requirements to warn them of that fact or assign them a of Rule 86 and the deadlines of Rule 87.15 campsite where none would. I have grave doubts Similarly, a nonresident objecting to personal whether such facts could possibly constitute gross jurisdiction must file a special appearance that negligence—natural conditions usually cannot be meets the requirements of Rule 120a.16 In unreasonably dangerous (much less wanton),3 substance, these motions could still be and trespassers do not have to be warned of what categorized as "pleas to the jurisdiction;" but in everyone should know.4 Nor does the Parks form, they must comply with the current rules of Department appear to have a duty to provide civil procedure. campsites safely away from trees;5 indeed, one has to ask whether anyone would want to use Case law as well as rule amendments have such "parks" if it did.6 contributed to the trend away from the common- law plea to the jurisdiction. For example, we have Faced with what appears to be an held that a complaint based on dominant insupportable allegation like the gross-negligence jurisdiction in another court must be raised by pleading here, litigants normally have two plea in abatement in the second court, or it is options: (1) demand more specific facts by special waived.17 Again, though this complaint could be exception, or (2) demand more specific facts by characterized as a plea to the jurisdiction, a more motion for summary judgment. Instead, the specific motion and procedure has rendered the Department filed three motions, including a "plea common-law term obsolete. to the jurisdiction"—the white elephant7 of current Texas motion practice. By use of this plea, But pleas to the jurisdiction have enjoyed a the Department was able to force the trial judge recent resurgence in the field of governmental (and ultimately this Court) to make an ad hoc immunity. For many years, governmental units decision whether our jurisdiction should be were not very particular about the vehicle for determined by reference to pleadings or evidence. asserting immunity, raising it sometimes by— Because it should be litigants rather than judges making that choice, I respectfully dissent. • general demurrer;18

Pleas to the jurisdiction are nothing new. In • special demurrer;19 his Commentaries on the Laws of England, Blackstone lists them as a category of dilatory [133 S.W.3d 241] pleas that (along with pleas of disability and • special exception;20 abatement) deny the Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

• plea to the jurisdiction;21 easy to do. As we pointed out in several examples, consideration of some pleas should not go beyond • plea in abatement;22 or the pleadings, but consideration of others must.31 When necessary, trial courts must consider • summary judgment.23 evidence relating to the jurisdictional facts, but should not consider evidence relating to the In 1997, the Legislature amended the Civil merits,32 even though the two are sometimes the Practices and Remedies Code to allow same. Nor could we be specific about when pleas interlocutory appeals "from an interlocutory should be decided, leaving it to the trial court's order ... [that] grants or denies a plea to the discretion whether to address the issue at a jurisdiction by a governmental unit."24 We have preliminary hearing or after fuller development of held this section must be strictly construed, as it the merits.33 is an exception to the general rule that interlocutory orders are not appealable.25 The examples given in Bland certainly provided more procedural guidance than existed As a result, almost overnight a "plea to the before. But without considering all possible pleas jurisdiction" became the motion of choice for to the jurisdiction, we could not prescribe more asserting immunity;26 indeed, some appellate definitive rules; until all those disputes come courts have refused to consider any other.27 This before us, we should probably not try. In the development exalts form over substance. For meantime, it will often be unclear what the trial example, before the Legislature's amendment, court should consider, or when it should do so, one governmental entity unsuccessfully asserted until the plea is decided (or perhaps even later on immunity by means of a summary judgment and appeal). To some observers, this may appear to be special exceptions; immediately after the effective drawing up the rules after the game has been date, the entity filed the same objection as a "plea played.34 to jurisdiction"—and prevailed.28 From almost any vantage point, the For several reasons, we should put a stop to resurgence of pleas to the jurisdiction creates this resurgence of common-law pleadings in problems in immunity cases. For governmental immunity cases. First, it is fraught with entities, it results in unnecessary repetition. In uncertainty. Despite hundreds of haphazardly- this case, the Parks and Wildlife Department numbered rules, only once do the Texas Rules of could not be sure whether the trial court would Civil Procedure mention pleas to the jurisdiction, consider evidence necessary, so it filed three and then only in a rule regarding permissible motions—a no-evidence motion for summary parts of an answer rather than permissible judgment, a traditional motion for summary motions.29 judgment, and a plea to the jurisdiction. But as counsel for the Department admitted at the [133 S.W.3d 242] hearing, "all three relate to the same set of issues." There is no rule—no case and no code—that specifies the form, deadlines, or evidentiary Such repetition is unnecessary for requirements for pleas to the jurisdiction interlocutory review. Nothing in the Civil Practice generally. and Remedies Code suggests the Legislature intended to specify a form motions had to take for In Bland Independent School District v. that purpose, rather than their substance. Indeed, Blue,30 we attempted to bring some order to this the opposite is suggested by the Legislature's resurgence by setting guidelines for handling such selection of a common-law term applicable to a pleas. But due to the broad range of issues a plea broad category of motions, rather than a term to the jurisdiction might address, that was not pointing to any particular motion in the current Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

rules of civil procedure. It has long been our For decades, governmental units have asserted practice to consider the substance of motions immunity by special exceptions38 or motions for rather than their form;35 nothing in the legislative summary judgment.39 In many cases (including history this one), they still do so today.40 Relying on standard procedural [133 S.W.3d 243] [133 S.W.3d 244] suggests the interlocutory appeal statute was intended to be an exception to that rule. motions would eliminate many questions about deadlines, forms, and evidence. It would make For plaintiffs, the problems created by the government entities rather than trial judges resurgence of pleas to the jurisdiction are even decide whether the jurisdictional challenge is more acute. Defendants uncertain about how to directed to the plaintiff's pleadings or the present an immunity defense can simply try a underlying facts. If a governmental unit chooses little of everything; plaintiffs, by contrast, may wrong,41 it may always try again. But the plaintiff lose their case if they guess wrong. In this case, is not required to guess what rules or procedures for example, the Mirandas did not attach any the trial judge might apply. evidence to their responses to the various motions. The lower courts agreed they did not Returning to pre-resurgence practice would need to, but if we hold otherwise, then the not change the incidence of governmental Mirandas will learn three years too late that they immunity. As we recently held, if a plea to the should have presented evidence at the jurisdiction is directed only to the plaintiff's jurisdictional hearing. pleadings, we construe them in the plaintiff's favor and allow an opportunity to amend unless From a trial judge's vantage point, pleas to they affirmatively negate jurisdiction.42 This is, of the jurisdiction create uncertainty, not just about course, identical to the rules governing special the rules to be applied but about the role of the exceptions.43 And when governmental entities judge. This case is one of many in which wish to rely on evidence, any questions of fact that immunity from suit under the Texas Tort Claims affect jurisdictional issues must be settled by the Act is coextensive with immunity from liability.36 jury,44 the same standard that applies to summary As a result, deciding the jurisdictional question judgments. bears a strong resemblance to deciding the merits. Nor can it be argued that courts exceed their jurisdiction by requiring immunity pleas to be In these circumstances, it is difficult for brought in standard motions according to settled Texas judges to detect the line between rules of procedure. As we stated shortly after the jurisdictional questions they must decide before rules of civil procedure were enacted: going further and liability questions they cannot decide without usurping the function of the jury. Since [the trial court] had the power to Here, the Mirandas convinced the lower courts sustain the demurrers and grant the motions, it that whether their pleadings were supported by had the power to overrule them. The jurisdiction any evidence was a question solely for the jury. of a court must be determined, not upon the But that is not true if they raised no material facts court's action in deciding the questions presented that could establish a waiver of immunity.37 in a case, but upon the character of the case itself. Jurisdiction is the power to decide, and not By contrast, returning to standard motions as merely the power to decide correctly.45 the vehicles for asserting governmental immunity would clarify what the jurisdictional hearing will Of course, returning to established be like and simplify many procedural questions. procedural motions will not remove all difficulties Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

with issues of governmental immunity. Judges of Wildlife Department" in their third amended goodwill and intellect will still disagree about petition. Because the parties and lower courts whether a particular pleading is sufficiently retained the original style of the case, we retain specific, as Justices Jefferson and Wainwright do that style but in our opinion refer to the here. Governmental units may incur unnecessary Department by its correct name. discovery costs and delays unless judges agree to hear summary judgment motions on 2. The Department also moved for summary jurisdictional matters as early in the case as they judgment under Texas Rule of Civil Procedure might hear a plea to the jurisdiction. And 166a(b)-(c)and 166a(I). The trial court denied appellate courts must still distinguish between both motions, but the Department does not immunity from suit (as to which an interlocutory appeal the trial court's denial of either motion. appeal will lie) and immunity from liability (as to 3. The Legislature amended section 22.001 of the which it will not).46 But simplification of our Government Code, effective September 1, 2003. procedures should not be rejected because we Act of June 11, 2003, 78th Leg., R.S., Ch. 204 cannot simplify everything. (codified as section 22.001(e) of the Texas Government Code). The amendment, which If the Texas Legislature mandated applies to actions filed on or after September 1, interlocutory review of "pleas in bar asserting 2003 and does not govern our jurisdiction in this limitations" (a development devoutly to be wished case, provides that "one court holds differently against), few would suggest such review was from another when there is inconsistency in their available only for motions entitled "Plea in Bar" respective decisions that should be clarified to instead of the summary judgment or special remove unnecessary uncertainty in the law and exception forms that have long been used to raise unfairness to litigants." such issues.47 We should stop making the assumption 4. The plaintiff's allegations in the petition of the amount in controversy control for jurisdictional [133 S.W.3d 245] purposes unless the party challenging jurisdiction pleads and proves that the plaintiff's allegations of that the Legislature intended something different the amount in controversy were made for pleas of governmental immunity. fraudulently for the purpose of obtaining Accordingly, I would reverse and remand for jurisdiction. See Bland, 34 S.W.3d at 554; Cont'l (1) the Parks and Wildlife Department to specify Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, whether its plea to the jurisdiction is a challenge 449 (Tex.1996); Tidball v. Eichoff, 66 Tex. 58, 17 to the pleadings (by special exception) or the S.W. 263, 263 (1886). We disapprove of courts of evidence (by summary judgment), (2) the appeals' holdings that require a party to allege Mirandas to respond in compliance with the rules that pleadings, other than the jurisdictional of civil procedure, and (3) the lower courts to amount, are fraudulent in order for the trial court address the governmental immunity issue in to consider evidence, when otherwise necessary, accordance with the usual rules governing of whether it has jurisdiction over a case. See, e.g., disposition and review of those motions. Sullivan v. Wilmer Hutchins Indep. Sch. Dist., 47 S.W.3d 529, 531 (Tex.App.-Dallas 2000), rev'd on --------------- other grounds, 51 S.W.3d 293 (Tex.2001); Denton County v. Howard, 22 S.W.3d 113, 117-18 Notes: (Tex.App.-Fort Worth 2000, no pet.); Tex. Dep't of Mental Health & Mental Retardation v. 1. The Mirandas originally named the "Texas Pearce, 16 S.W.3d 456, 460 (Tex.App.-Waco Department of Parks and Wildlife" as defendant 2000, pet. dism'd w.o.j.); Tex. State Employees but corrected the name to the "Texas Parks and Union/CWA Local 6184 v. Tex. Workforce Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

Comm'n, 16 S.W.3d 61, 65, 66 (Tex.App.-Austin dismiss for lack of subject matter jurisdiction 2000, no pet.); DalMac Constr. Co. v. Tex. A & M (quoting St. Clair v. City of Chico, 880 F.2d 199, Univ., 35 S.W.3d 654, 655 n. 1 (Tex.App.-Austin 201 (9th Cir.1989))); Makarova v. United States, 1999), rev'd on other grounds, sub nom. Gen. 201 F.3d 110, 113 (2d Cir.2000) (allowing district Servs. Comm'n v. Little-Tex Insulation Co., Inc., court to "refer to evidence outside the pleadings" 39 S.W.3d 591 (Tex.2001); Univ. of Houston v. to resolve a Rule 12(b)(1) motion); Williams v. Elthon, 9 S.W.3d 351, 356 (Tex.App.-Houston United States, 50 F.3d 299, 304 (4th Cir.1995) [14th Dist.] 1999, pet. dism'd w.o.j.); Curbo v. ("In ruling on a Rule 12(b)(1) motion, the court State, Office of the Governor, 998 S.W.2d 337, may consider exhibits outside the pleadings."); 341-42 (Tex.App.-Austin 1999, no pet.); City of Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, Saginaw v. Carter, 996 S.W.2d 1, 3 (Tex.App.- 172 (5th Cir.1994) (acknowledging a trial court's Fort Worth 1999, pet. dism-d w.o.j.); Bland "authority to consider evidence presented beyond Indep. Sch. Dist. v. Blue, 989 S.W.2d 441, 447 the pleadings ... which may include considering (Tex.App.-Dallas 1999), rev'd, 34 S.W.3d 547 affidavits, allowing further discovery, hearing oral (Tex.2000). testimony, conducting an evidentiary hearing"); Herbert v. Nat'l Acad. of Sci., 974 F.2d 192, 197 5. The recreational use statute does not limit the (D.C.Cir.1992) ("[W]here necessary, the court liability of an owner, lessee, or occupant "who has may consider the complaint supplemented by been grossly negligent or has acted with malicious undisputed facts evidenced in the record, or the intent or in bad faith." Tex. Civ. Prac. & Rem.Code complaint supplemented by undisputed facts plus 75.002(d). the court's resolution of disputed facts."); Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th 6. See, e.g., Harris v. P.A.M. Transp., Inc., 339 Cir.1990) (noting that "substantial authority" F.3d 635, 637 n. 4 (8th Cir.2003) (acknowledging acknowledges the trial court's freedom to district court's authority to consider matters consider disputed evidence when deciding a Rule outside the pleadings when subject matter 12(b)(1) motion) (citations omitted); Gould, Inc. jurisdiction is challenged under Rule 12(b)(1)); v. Pechiney Ugine Kuhlmann, 853 F.2d 445, 451 Johnson v. Apna Ghar, Inc., 330 F.3d 999, 1001 (6th Cir.1988) ("[T]he district court may consider (7th Cir.2003) (observing that when considering a affidavits, allow discovery, hear oral testimony, motion for dismissal for lack of subject matter order an evidentiary hearing, or even postpone its jurisdiction, "`[t]he district court may properly ... determination if the question of jurisdiction is view whatever evidence has been submitted on intertwined with the merits."); Mortensen v. First the issue'" (quoting Long v. Shorebank Dev. Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Corp., 182 F.3d 548, 554 (7th Cir.1999))); Sizova Cir.1977) (acknowledging that "substantial v. Nat'l Inst. of Standards & Tech., 282 F.3d authority" allows trial courts to weigh the 1320, 1324 (10th Cir.2002) (noting district court's evidence of disputed facts when considering a "`wide discretion to allow affidavits, other Rule 12(b)(1) motion); see also 5A Charles Alan documents, and a limited evidentiary hearing to Wright & Arthur R. Miller, Federal Practice and resolve disputed jurisdictional facts under Rule Procedure § 1364, at 468-469 (2d ed.1990). 12(b)(1)'" (quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995))); Valentin, 254 F.3d 1. I agree that the court of appeals' holding at 363 (district court has "broad authority to conflicts with Bland to the extent it holds that the order discovery, consider extrinsic evidence, and trial court was prohibited from inquiring into the hold evidentiary hearings in order to determine merits because "... the Department did not its own jurisdiction"); Ass'n of Am. Med. Colls. v. specifically allege that the Mirandas allegations United States, 217 F.3d 770, 778 (9th Cir.2000) were pled merely as a sham for the purpose of ("`district court obviously does not abuse its wrongfully obtaining jurisdiction." 55 S.W.3d discretion by looking to ... extra-pleading 648, 652. Bland does not require that form of material'" in deciding a Rule 12(b)(1) motion to defensive pleading as the sole gateway through Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

which the trial court may consider evidence. If permission for recreational use do not assure that that were so, we could not have held that there are the premises are safe for that purpose). limited circumstances in which, even in the absence of a defendant's pleading that the 6. See Tex. Home Mgmt., Inc. v. Peavy, 89 plaintiff's pleadings were a sham, the trial court is S.W.3d 30, 33 (Tex.2002) (holding question of required to consider evidence. I depart from the legal duty is question of law requiring balance of Courts holding, however, that this is such a case. factors such as risk, utility, consequences of the duty, and other relevant individual and social 2. The prevailing view appears to be that the interests). timeline is strictly enforced. See Luna v. Estate of Rodriguez, 906 S.W.2d 576, 582 (Tex.App.- 7. The Oxford English Dictionary (1989) defines Austin 1995, no writ) ("Because summary "white elephant" as: judgment is a harsh remedy, we strictly construe a. A rare albino variety of elephant which is the twenty-one day time limit."). Accord Burns highly venerated in some Asian countries. b. fig. A Motors, Inc. v. Gulf Ins. Co., 975 S.W.2d 810, 812 burdensome or costly possession (from the story (Tex.App.-Corpus Christi 1998) rev'd on other that the kings of Siam were accustomed to make a grounds, 22 S.W.3d 417 (Tex.2000); Martin v. present of one of these animals to courtiers who Martin, Martin & Richards, Inc., 991 S.W.2d 1, 11 had rendered themselves obnoxious, in order to (Tex.App.-Fort Worth 1997) rev'd on other ruin the recipient by the cost of its maintenance). grounds, 989 S.W.2d 357 (Tex.1998); Bell v. Also, an object, scheme, etc., considered to be Showa Denko K.K., 899 S.W.2d 749, 759 without use or value. (Tex.App.-Amarillo 1995, writ denied); Stephens v. Turtle Creek Apartments, Ltd., 875 S.W.2d 25, 8. 3 William Blackstone, Commentaries on the 27 (Tex.App.-Houston [14th Dist.] 1994, no writ); Laws of England 301-03 (1768). Wavell v. Caller-Times Pub. Co., 809 S.W.2d 633, 637 (Tex.App.-Corpus Christi 1991, writ denied); 9. See, e.g., Rice v. Peteet, 66 Tex. 568, 1 S.W. Williams v. City of Angleton, 724 S.W.2d 414, 417 657, 657 (1886). (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.) disapproved of on other grounds, 876 10. See, e.g., McIlhenny Co. v. Todd, 71 Tex. 400, S.W.2d 314 (Tex.1994). 9 S.W. 445, 446 (1888) (objecting that amount at issue fell below court's jurisdictional limits); 1. TEX. CIV. PRAC. & REM.CODE §§ Juneman v. Franklin, 67 Tex. 411, 3 S.W. 562, 75.002(c)(2), 75.003(g). 562 (1887) (objecting that forcible entry and detainer action was not filed in justice court). 2. Id. §§ 75.002(a)(2), 75.003, 101.022, 101.058. 11. See, e.g., Cleveland v. Ward, 116 Tex. 1, 285 3. See Johnson County Sheriff's Posse, Inc. v. S.W. 1063, 1072 (1926), disapproved on other Endsley, 926 S.W.2d 284, 287 (Tex.1996) grounds, Walker v. Packer, 827 S.W.2d 833, 842 (holding rock in dirt arena did not create (Tex.1992); Grathaus v. Witte, 72 Tex. 124, 11 unreasonably dangerous condition). S.W. 1032, 1032 (1888). 4. Cf. County of Cameron v. Brown, 80 S.W.3d 12. See, e.g., Pecos & N.T. Ry. Co. v. Thompson, 549, 558 (Tex.2002) (holding darkness caused by 106 Tex. 456, 167 S.W. 801, 801 (1914); Baines v. failed streetlights was not open and obvious Jemison, 86 Tex. 118, 23 S.W. 639, 640 (1893); hazard precluding recovery by licensee because it Watson v. Baker, 67 Tex. 48, 2 S.W. 375, 375-76 could not be seen from entrance to causeway). (1886). 5. See TEX. CIV. PRAC. & REM.CODE § 13. See, e.g., Brown v. Gay, 76 Tex. 444, 13 S.W. 75.002(c)(1) (providing landowners who grant 472, 472-73 (1890). Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

14. See, e.g., Tex. & P. Ry. Co. v. Richards, 68 Tex. W.T. Carter & Bro., 133 Tex. 202, 126 S.W.2d 375, 4 S.W. 627, 629 (1887). 953, 955 (1938).

15. Tex.R. Civ. Proc. 86 (requiring unverified 23. See, e.g., Overton Mem'l Hosp. v. McGuire, motion that is filed first and states counties of 518 S.W.2d 528, 528 (Tex.1975) (per curiam); improper, proper, or mandatory venue); Tex.R. Tex. Dept. of Corr. v. Herring, 513 S.W.2d 6, 7 Civ. Proc. 87 (requiring 45-days' notice of (Tex.1974). hearing, 30-days' notice of respondents affidavits, and 7-days' notice of movants affidavits). 24. TEX. CIV. PRAC. & REM.CODE § 51.014(a)(8). 16. Tex.R. Civ. Proc. 120a (requiring sworn motion that is filed and heard before any other 25. Bally Total Fitness Corp. v. Jackson, 53 matter, with affidavits served seven days before S.W.3d 352, 355 (Tex.2001). the hearing). 26. See, e.g., Texas Natural Res. Conservation 17. Mower v. Boyer, 811 S.W.2d 560, 563 n. 2 Comm'n v. IT-Davy, 74 S.W.3d 849, 852 (Tex.1991); Wyatt v. Shaw Plumbing Co., 760 (Tex.2002); Little-Tex Insulation Co., Inc., 39 S.W.2d 245, 247 (Tex.1988). S.W.3d at 594; McClain v. Univ. of Tex. Health Ctr. at Tyler, 119 S.W.3d 4, 5 (Tex.App.-Tyler 18. See, e.g., State v. Hale, 136 Tex. 29, 146 2000, pet. denied); Dallas County Cmty. Coll. S.W.2d 731, 735 (1941); Herring v. Houston Nat'l Dist. v. Bolton, 990 S.W.2d 465, 466 (Tex.App.- Exch. Bank, 113 Tex. 264, 253 S.W. 813, 814 Dallas 1999, no pet.); Alamo Cmty. Coll. Dist. v. (1923); Stephens v. Tex. & P. Ry. Co., 100 Tex. Obayashi Corp., 980 S.W.2d 745, 746 (Tex.App.- 177, 97 S.W. 309, 310 (1906); Thomson v. Baker, San Antonio 1998, pet. denied); Tex. Parks & 90 Tex. 163, 38 S.W. 21, 22 (1896). Wildlife Dept. v. Garrett Place, Inc., 972 S.W.2d 140, 142 (Tex.App.-Dallas 1998, no pet.); Tex. 19. See, e.g., Thomson, 38 S.W. at 22. Parks & Wildlife Dep't v. Callaway, 971 S.W.2d 145, 147 (Tex.App.-Austin 1998, no pet.). 20. See, e.g., Duhart v. State, 610 S.W.2d 740, 741 (Tex.1980); Dir. of Dep't of Agric. & Env't v. 27. See, e.g., Thomas v. Long, 97 S.W.3d 300, Printing Indus. Ass'n of Tex., 600 S.W.2d 264, 302-03 (Tex. App.-Houston [14th Dist.] 2003, 265 (Tex.1980); Stephens, 97 S.W. at 310. pet. granted) (refusing interlocutory appeal of denial of summary judgment based on lack of 21. See, e.g., Fed. Sign v. Tex. S. Univ., 951 subject matter jurisdiction as no order granted or S.W.2d 401, 403 (Tex.1997), superseded by denied a plea to the jurisdiction); Baylor Coll. of statute on other grounds as stated in Gen. Servs. Med. v. Tate, 77 S.W.3d 467, 472 (Tex.App.- Comm'n v. Little-Tex Insulation Co., Inc., 39 Houston [1st Dist.] 2002, no pet.) (refusing S.W.3d 591, 593 (Tex.2001); Lowe v. Tex. Tech interlocutory appeal because trial court's order Univ., 540 S.W.2d 297, 298 (Tex.1976); State v. was summary judgment based on immunity from Lain, 162 Tex. 549, 349 S.W.2d 579, 580 (1961); liability rather than plea to the jurisdiction based Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151, on immunity from suit). 152 (1960); Short v. W.T. Carter & Bro., 133 Tex. 202, 126 S.W.2d 953, 955 (1938). 28. Lamar Univ. v. Doe, 971 S.W.2d 191, 193 (Tex.App.-Beaumont 1998, no pet.). 22. See, e.g., Duhart v. State, 610 S.W.2d 740, 741 (Tex.1980); Lowe, 540 S.W.2d at 298; Griffin v. 29. TEX.R. CIV. PROC. 85: Hawn, 161 Tex. 422, 341 S.W.2d 151, 152 (1960); W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 The original answer may consist of motions S.W.2d 838, 838 (1958); Cobb v. Harrington, 144 to transfer venue, pleas to the jurisdiction, in Tex. 360, 190 S.W.2d 709, 710 (1945); Short v. abatement, or any other dilatory pleas; of special Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

exceptions, of general denial, and any defense by 38. See, e.g., John G. & Marie Stella Kenedy way of avoidance or estoppel, and it may present a Mem'l Found. v. Mauro, 921 S.W.2d 278, 281 cross-action, which to that extent will place (Tex.App.-Corpus Christi 1995, writ denied); Tex. defendant in the attitude of a plaintiff. Matters in Dep't of Corr. v. Winters, 765 S.W.2d 531, 532 avoidance and estoppel may be stated together, or (Tex.App.-Beaumont 1989, writ denied); Martine in several special pleas, each presenting a distinct v. Bd. of Regents, State Senior Colleges of Tex., defense, and numbered so as to admit of separate 578 S.W.2d 465, 469 (Tex.Civ.App.-Tyler 1979, no issues to be formed on them. writ); Harrison v. Bunnell, 420 S.W.2d 777, 778 (Tex.Civ.App.-Austin 1967, no writ); State v. (Emphasis added). McDonald, 220 S.W.2d 732, 732 (Tex.Civ.App.- Texarkana 1949, writ refused); Porter v. Langley, 30. 34 S.W.3d 547 (Tex.2000). 155 S.W. 1042, 1043 (Tex.Civ.App.-Dallas 1913, 31. Id. at 555. writ refused).

32. Id. 39. See, e.g., Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 681-83 (Tex.App.-Amarillo 1998, pet. 33. Id. at 554. denied); Russell v. Tex. Dep't of Human Res., 746 S.W.2d 510, 513 (Tex.App.-Texarkana 1988, writ 34. See id. at 555 (rejecting plaintiffs' demand for denied); Gay v. State, 730 S.W.2d 154, 159 remand for full evidentiary hearing because they (Tex.App.-Amarillo 1987, no writ). did not contest evidence at original plea to the jurisdiction hearing). 40. See, e.g., Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003) 35. See, e.g., Speer v. Stover, 685 S.W.2d 22, 23 (sovereign immunity asserted by plea to the (Tex.1985) (per curiam) (considering plea to jurisdiction and motion for summary judgment); jurisdiction even though misnamed plea in County of Cameron v. Brown, 80 S.W.3d 549, abatement); see also TEX.R. CIV. PROC. 71 553 (Tex.2002) (sovereign immunity asserted by (stating "[w]hen a party has mistakenly plea to the jurisdiction and special exceptions). designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading 41. See, e.g., Tex. Dep't of Corr. v. Herring, 513 as if it had been properly designated"). Some S.W.2d 6, 9-10 (Tex.1974) (reversing summary courts themselves appear to use the possible judgment based on immunity as plaintiff was not terms for immunity motions interchangeably. See, allowed opportunity to replead). e.g., State v. Executive Condos., Inc., 673 S.W.2d 330, 331-32 (Tex.App.-Corpus Christi 1984, writ 42. Cameron, 80 S.W.3d at 555; Tex. Dep't of refused n.r.e.) (referring to immunity motion as Transp. v. Ramirez, 74 S.W.3d 864, 867 "plea to the jurisdiction" when it was filed, "plea (Tex.2002). in abatement" when it was denied, and "motion to 43. See Brown, 80 S.W.3d at 559; Herring, 513 dismiss" when it was reversed). S.W.2d at 9-10. 36. See TEX. CIV. PRAC. & REM.CODE § 44. See, e.g., Brown, 80 S.W.3d at 556 (holding 101.025(a) (waiving immunity to suit to the extent foreseeability issue raised by plea to the of liability under chapter 101), § 101.021 (creating jurisdiction presented fact question for jury). governmental liability for specified acts resulting from negligence, premises conditions, and use of 45. Martin v. Sheppard, 145 Tex. 639, 201 S.W.2d property to the extent private persons would be 810, 812-13 (1947). liable). 46. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 37. See Tex.R. Civ. Proc. 166a(c). 636, 638-39 (Tex.1999). Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

47. See Baker v. Monsanto Co., 111 S.W.3d 158, 159 (Tex.2003) (per curiam) (asserting limitations by summary judgment); City of Port Arthur v. Tillman, 398 S.W.2d 750, 751 (Tex.1965) (asserting limitations by special exception).

--------------- Truss World, Inc. v. Erjs, Inc., 284 S.W.3d 393 (Tex. App. 2009)

284 S.W.3d 393 Following a bench trial, a money judgment TRUSS WORLD, INC. and All Tex was rendered against AGH based on the breach of Financial, Inc., Appellants contract claim. The court concluded Truss World v. "provided specially fabricated items/trusses to ERJS, INC. f/k/a America's Great Homes, [AGH]." The trial court found that "Truss World Inc., America's Great Homes, Ltd., and did not send notice to [AGH] for specially Suretec Insurance Company, Appellees. fabricated items as required by the Texas No. 09-07-00432-CV. Property Code prior to filing the Affidavits for Court of Appeals of Texas, Beaumont. Mechanic's and Materialman's Liens." The trial Submitted on September 8, 2008. court concluded that Truss World failed to perfect Decided February 12, 2009. the liens, and ordered that Truss World and All Tex take nothing on the bonds. Truss World and [284 S.W.3d 394] All Tex, Inc. appeal that take-nothing judgment. No other party filed a notice of appeal. No cross- David M. Medearis, Sullins, Johnston, points are presented by Suretec or AGH. Rohrbach & Magers, Houston, for appellants. [284 S.W.3d 395] George D. Gordon, Richard S. Browne, Baggett, Gordon & Deison, Conroe, for appellees. The trial court erred in finding that Truss World failed to properly perfect the liens. We Before GAULTNEY, KREGER, and therefore reverse the part of the judgment that HORTON, JJ. provides appellants take nothing from Suretec, and remand the case to the trial court to render OPINION judgment in favor of appellants on the bonds. See TEX.R.APP. P. 43.3(a). DAVID GAULTNEY, Justice. ORIGINAL CONTRACTOR OR DERIVATIVE Truss World, Inc. designed and sold trusses, CLAIMANT? used in residential construction, for ERJS, f/k/a America's Great Homes, Inc. and America's Great Appellants argue the notice requirements of Homes, Ltd. (AGH). AGH did not pay for some of section 53.055 apply to an original contractor. See the trusses, and Truss World filed materialman's TEX. PROP.CODE ANN. § 53.055 (Vernon 2007). liens. AGH filed a summary motion to remove the Appellants contend the trial court erred in not liens. See TEX. PROP.CODE ANN. § 53.160 presuming, pursuant to Texas Rules of Civil (Vernon 2007). Bonds to indemnify against the Procedure 54, that Truss World gave AGH the liens were filed, naming Suretec Insurance required notice under section 53.055 because Company as the surety. See TEX. PROP.CODE notice and filing were pled and not specifically ANN. §§ 53.171-53.175 (Vernon 2007). denied. See TEX.R. CIV. P. 54.

Truss World filed a countersuit against AGH Appellants argue Truss World was not for breach of contract, enforcement of the liens, required to comply with section 53.058 of the and estoppel, and also sued Suretec, the surety on Texas Property Code, a provision applicable to the bonds. All Tex Financial, Inc., an assignee of derivative claimants. Generally, section 53.058 Truss World's claims and causes of action, and of entitled "Derivative Claimant: Notice for Specially accounts receivable owed by AGH, intervened and Fabricated Items," states that—for a lien to be also sued AGH for fraud and negligent valid for non-delivered specially fabricated misrepresentation. items—a claimant who specially fabricates material must give the owner notice not later than the 15th day of the second month after the month Truss World, Inc. v. Erjs, Inc., 284 S.W.3d 393 (Tex. App. 2009)

in which the claimant receives and accepts the subcontractor or derivative claimant to perfect a order for the material. See TEX. PROP.CODE lien claim. ANN. § 53.058(a),(b) (Vernon 2007); see also § 53.253 (Vernon 2007) (applicable to residential SECTION 53.055 construction projects). A subcontractor is a derivative claimant; an original contractor is not. An original contractor must provide the See First Nat'l Bank v. Sledge, 653 S.W.2d 283, owner notice pursuant to section 53.055 of the 285 (Tex.1983). Truss World asserts it is an Texas Property Code when filing a lien affidavit. original contractor. See TEX. PROP.CODE ANN. § 53.055 (Vernon 2007). Section 53.055 For the purposes of mechanic or materialman liens, an "original contractor" is "a person [284 S.W.3d 396] contracting with an owner either directly or through the owner's agent." TEX. PROP.CODE states in part that "[a] person who files [a lien] ANN. § 53.001(7) (Vernon 2007). A subcontractor affidavit must send a copy of the affidavit by is "a person who has furnished labor or materials registered or certified mail to the owner or to fulfill an obligation to an original contractor or reputed owner at the owner's last known business to a subcontractor to perform all or part of the or residence address not later than the fifth day work required by an original contract." Id. § after the date the affidavit is filed with the county 53.001(13). Truss World contracted directly with clerk." Id. the owner of the real property, AGH, to provide Requiring a lien affiant to give actual notice trusses to AGH. to the property owner of the lien ensures that a AGH and Suretec argue, nevertheless, that property owner will not be ambushed by recorded Truss World's statement in the lien affidavits filed liens of which he is unaware. New AAA with the county clerk, identifying Truss World as Apartment Plumbers, Inc. v. DPMC-Briarcliff, a subcontractor, constitutes a judicial admission L.P., 145 S.W.3d 728, 730 (Tex.App.-Corpus that Truss World was in fact AGH's Christi 2004, no pet.). Although section 53.055 subcontractor. Form requirements for requires that notice of a mechanic's and materialmen's lien affidavits are to be liberally materialman's lien must be given to the property construed; substantial compliance with the owner no later than five days after the affidavit is mechanic's and materialmen's lien statute filed, the statute does not prohibit giving notice authorizing the lien is sufficient. See generally before the lien affidavit is filed. See Overseas Gill Sav. Ass'n v. Int'l Supply, 759 S.W.2d 697, Enters. USA, Inc. v. Whatley, No. 09-07-565 CV, 700-01 (Tex.App.-Dallas 1988, writ denied) ("The 2008 WL 3928377, at *3, 2008 Tex.App. LEXIS mechanic's and materialmen's lien statutes are to 8523, at *8 (Tex.App.-Beaumont Aug.28, 2008, be liberally construed for the purpose of no pet.)(mem.op.); Arias v. Brookstone, 265 protecting laborers and materialmen."). We S.W.3d 459, 465 (Tex. App.-Houston [1st Dist.] decline to treat the statement in the lien affidavits 2007, pet. denied)("[T]he owner ... can hardly as a binding judicial admission, but instead look claim to be hurt when ... notified in advance of the at the actual relationship of the parties and the actual filing of the lien affidavit."); New AAA purpose of the statute. Apartment Plumbers, Inc., 145 S.W.3d at 730 (citing Hammons v. Texas Pride Landscape, No. Truss World contracted directly with AGH 05-99-980-CV, 2000 Tex.App. LEXIS 3025, and was an original contractor, not a 2000 WL 567108, at *4 (Tex.App.-Dallas May 10, subcontractor or derivative claimant. See TEX. 2000, pet. denied) (mem.op.)); see also TEX. PROP.CODE ANN. § 53.001(7),(13). As an PROP.CODE ANN. § 53.055. Substantial original contractor, Truss World was not required compliance with the statute is sufficient to perfect to serve additional notices required of a the lien. See First Nat'l Bank v. Sledge, 653 Truss World, Inc. v. Erjs, Inc., 284 S.W.3d 393 (Tex. App. 2009)

S.W.2d 283, 285 (Tex.1983) (predecessor [284 S.W.3d 397] statute). way the liens were not "properly perfected." The RULE 54 assertion did not specifically deny that appellants gave notice as pled by appellants of the filing of Truss World alleged it would show it "filed the liens. See generally Wade & Sons, Inc. v. Am. and perfected" the liens. Truss World pled in its Std. Inc., 127 S.W.3d 814, 825-26 (Tex.App.-San petition that, "On or about November 25, 2002, Antonio 2003, pet. denied)(A pleading Truss World mailed lien affidavits, certified mail, "specifically denying that all conditions return receipt requested, informing AGH of its precedent" to plaintiff's right to recover have intent to file liens on the property to secure its "been performed" or "waived" was insufficient claim on the delinquent payments. And on under Rule 54.). December 3, 2002 Truss World filed lien affidavits on the properties." When a party pleads Appellants also argue Rule 93(12) of the the performance or occurrence of conditions Texas Rules of Civil Procedure requires that a plea precedent, the party pleading the conditions "[t]hat notice and proof of loss or claim for precedent is only required to prove at trial those damage has not been given as alleged" must be performances or occurrences that were verified by affidavit and that "denial of such specifically denied by the opposing party. TEX.R. notice or such proof shall be made specifically and CIV. P. 54. Essentially, Truss World's pleading with particularity." See TEX.R. CIV. P. 93(12). asserted compliance with its notice obligations. AGH and Suretec cite Bunch Electric Company v. See TEX. PROP.CODE ANN. § 53.055; see also Tex-Craft Builders, Inc., 480 S.W.2d 42 Arias, 265 S.W.3d at 465. Appellants were not (Tex.Civ.App.-Tyler 1972, no writ) in arguing that required to prove notice unless AGH and Suretec verification under Rule 93(12) is inapplicable specifically denied appellants gave the notice as here. In Bunch Electric the court held that Rule pled, or otherwise specifically denied compliance 93(m), the prior version of Rule 93(12), did not with section 53.055. See TEX.R. CIV. P. 54. apply to the procedure applicable under Article 5160 of the Texas Revised Civil Statutes. See AGH and Suretec alleged in their answers Bunch Electric, 480 S.W.2d at 46. The court held that appellants' "failure to properly give notice as article 5160 provided the procedure and remedy required by the Texas Property Code for specially for presenting a claim against a payment bond on fabricated items" precluded the claims, and they a public contract. See id. at 45-46. asserted appellants did not properly perfect the liens. AGH and Suretec alleged that the notice did In Skinny's Inc. v. Hicks Brothers not comply with sections 53.058 and 53.253. Construction Company, 602 S.W.2d 85, 90 Contrary to the trial court's finding, however, the (Tex.Civ.App.-Eastland 1980, no writ), the court Property Code provisions dealing with "specially declined to follow the reasoning in Bunch fabricated items" are inapplicable here, because Electric. The court applied the Rules of Civil the Property Code notice requirements for Procedure, specifically Rule 54, and held that the "specially fabricated items" apply to derivative claimants were required to prove only the claimants, not original contractors. See TEX. conditions precedent specifically denied by the PROP.CODE ANN. § 53.058. The denial by AGH owner. See id. The owner could not assert, for the and Suretec was not a specific denial of notice first time on appeal, that there was no evidence of under section 53.055. Furthermore, AGH's and mailing copies of the lien affidavits to the owner Suretec's broad denial in their answers, that by certified mail. The court explained that "the appellants "fail[ed] to properly perfect its liens, general contractor and the subcontractor were pursuant to the Texas Property Code[,]" failed to required to prove only such conditions precedent specifically state in what as were specifically denied by the owner." Id. Truss World, Inc. v. Erjs, Inc., 284 S.W.3d 393 (Tex. App. 2009)

In City of Houston v. Flanagan, 446 S.W.2d 348, 349-50 (Tex.Civ.App.-Houston [1st Dist.] 1969, writ ref'd n.r.e.), a personal injury lawsuit, the court held that Rule 54 and Rule 93(12)'s predecessor, Rule 93(m), applied to all civil actions. See id. at 350. Although it seems arguable Rule 93(12) is also applicable to the notice pleading here, we need not reach that specific issue. The Rules of Civil Procedure, including Rule 54, apply to pleading requirements in civil actions like this one. See Skinny's, Inc., 602 S.W.2d at 90; Flanagan, 446 S.W.2d at 349-50. Pursuant to Rule 54, appellants were required to prove only the performances or occurrences of conditions precedent pled that were specifically denied. See TEX.R. CIV. P. 54; Skinny's, Inc., 602 S.W.2d at 90.

Truss World specifically pled performances or occurrences that were conditions precedent to establish the liens: notice and filing. AGH's and Suretec's denials did not specifically address the "performances or occurrences" as pled. Appellants were entitled to rely on their pleadings in the absence of a specific denial of the performances or occurrences pled. Under the circumstances, notice as pled should have been presumed by the trial court. See TEX.R. CIV P. 54. Appellants' issue is sustained.

CONCLUSION

The trial court concluded that Truss World provided the trusses and fully performed its obligations. The court entered judgment for damages based on breach of contract. No party contests those conclusions or appeals that award. We reverse only that part of the judgment providing

[284 S.W.3d 398]

appellants take nothing from the surety, Suretec. The case is remanded for the trial court to render judgment on the surety bonds.

REVERSED AND REMANDED. Univ. of Tex. At Austin v. Kearney, NO. 03-14-00500-CV (Tex. App. May 03, 2016)

The University of Texas at Austin, 2012, Kearney was told by the women's athletic Appellant director that a report had been made to the v. University that Kearney had engaged in a Beverly Kearney, Appellee personal relationship with a former student athlete in approximately 2002. Kearney admitted NO. 03-14-00500-CV to the relationship and was subsequently placed on administrative leave pending an investigation. TEXAS COURT OF APPEALS, THIRD After meeting with University attorneys in DISTRICT, AT AUSTIN November 2012, she became concerned that she would be fired. On December 6, 2012, Kearney May 3, 2016 met with University attorneys and raised complaints alleging past incidents of race and sex FROM THE DISTRICT COURT OF TRAVIS discrimination for which she had not filed charges COUNTY, 126TH JUDICIAL DISTRICT of discrimination. On December 28, 2012, NO. D-GN-13-003908, HONORABLE Kearney alleges, University officials informed her ORLINDA NARANJO, JUDGE PRESIDING that she was going to be fired because of the undisclosed relationship with the student athlete. MEMORANDUM OPINION On January 5, 2013, Kearney resigned in lieu of termination. Beverly Kearney brought suit against the University of Texas at Austin, her former On March 8, 2013, Kearney filed a charge of employer, pursuant to the Texas Commission on discrimination with the Texas Workforce Human Rights Act (TCHRA), alleging Commission (TWC).2 See Tex. Lab. Code § constructive discharge based on disparate 21.0015 (providing for transfer of duties treatment and retaliation. See Tex. Lab. Code §§ 21.051(1), .055. In this interlocutory appeal, the Page 3 University challenges the trial court's denial of its plea to the jurisdiction on the grounds that under TCHRA from Human Rights Commission Kearney failed to exhaust her administrative to civil rights division of TWC), .201 (providing remedies and failed to assert a viable that person claiming to be aggrieved by unlawful discrimination or retaliation claim. See Tex. Civ. employment practice may file administrative Prac. & Rem. Code § 51.014(a)(8). For the reasons complaint). She received her right-to-sue letter that follow, we affirm the trial court's order in from TWC on October 30, 2013, and filed suit on part and reverse in part. November 14, 2013. See id. § 21.252 (complainant who receives notice that complaint is not Page 2 dismissed or resolved is entitled to request right- to-sue letter from TWC); Rice v. Russell-Stanley, BACKGROUND1 L.P., 131 S.W.3d 510, 513 (Tex. App.—Waco 2004, pet. denied) (holding that plaintiff's entitlement Kearney, who is African-American, was the to right-to-sue letter exhausts administrative head coach of the University's women's track and remedies and ends exclusive jurisdiction of TWC). field team for approximately 21 years during In her petition, Kearney alleged facts related to which time she had much success and received the claims of prior harassment and discrimination considerable recognition. Kearney alleges that she that she reported to University attorneys on has won more competitions than any other December 6, 2012. She also alleged that she was African-American coach in the history of all informed of the report of her relationship with the NCAA sports and at the time of her termination student athlete, she was placed on administrative was the only African-American head coach in any leave, and an investigation was conducted. She sport in the history of the University. In October alleged that after she reported claims of prior race Univ. of Tex. At Austin v. Kearney, NO. 03-14-00500-CV (Tex. App. May 03, 2016)

and sex discrimination during the investigation, S.W.3d 384, 391 (Tex. App.—Houston [14th Dist.] she was informed she would be fired and resigned 2014, pet. denied). One such waiver can be found in lieu of resignation. Kearney asserted that other under the TCHRA, which provides in relevant University employees who were white males and part that an employer may not, on the basis of who had been involved in relationships with race or sex, discharge an employee. See Tex. Lab. students or direct subordinates had not been Code § 21.051; Mission Consol. Indep. Sch. Dist. subjected to meaningful disciplinary action or v. Garcia, 253 S.W.3d 653, 660 (Tex. 2008) termination. Kearney identified by name a former (Garcia I) (holding that "the TCHRA clearly and football coach and a former volleyball coach unambiguously waives immunity"). The TCHRA's employed from 1997 to 2000, who Kearney waiver of immunity applies only in those suits in alleges married his former student athlete. She which the plaintiff actually alleges a violation also listed without names other coaches, current within the scope of the statute. Mission Consol. and former law school professors, current and Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 former undergraduate professors, a department (Tex. 2012) (Garcia II); Glover, 436 S.W.3d at chairman, and a high level administrator. 391. Because sovereign Kearney alleged that she was singled out as an African-American female and treated differently Page 5 for having a relationship with a student when she was terminated. She asserted causes immunity deprives a trial court of subject matter jurisdiction, it is properly asserted in a plea to the Page 4 jurisdiction. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 223, 226 (Tex. 2004). of action under sections 21.051 and 21.055 of the TCHRA for constructive discharge based on The University filed a plea to the jurisdiction disparate treatment and retaliation. See Tex. Lab. arguing that Kearney had failed to allege facts Code §§ 21.051(1), .055. that establish a prima facie case under the TCHRA. Thus, the University challenges only the The University filed a plea to the jurisdiction sufficiency of Kearney's pleadings. The arguing that Kearney's claims of constructive determination of whether the pleadings contain discharge based on disparate treatment and factual allegations affirmatively demonstrating retaliation were founded on "stale allegations" the trial court's subject matter jurisdiction that had not been administratively exhausted and presents a question of law that we review de novo. that her claim of retaliation also fails because the Id. at 226. To make this determination, we look to alleged adverse employment action occurred the pleader's intent, construe the pleadings before any protected activity, making it liberally in favor of jurisdiction, and accept the impossible for Kearney to establish causation. The allegations in the pleadings as true. Westbrook v. University's plea to the jurisdiction was based Penley, 231 S.W.3d 389, 405 (Tex. 2007); solely on legal arguments applied to the face of Miranda, 133 S.W.3d at 226. Although a plaintiff Kearney's petition, and the University offered no has the burden to plead facts showing evidence. The trial court denied the plea, and the jurisdiction, she is not "required to marshal University filed this appeal. evidence and prove her claim to satisfy this jurisdictional hurdle." Garcia II, 372 S.W.3d at STANDARD OF REVIEW 637; see City of El Paso v. Marquez, 380 S.W.3d 335, 340 (Tex. App.—El Paso 2012, no pet.). As a political subdivision of the state, the "While a plaintiff must plead the elements of her University is immune from suit unless the statutory cause of action—here the basic facts that legislature has waived immunity. See Prairie make up a prima facie case—so that the court can View A&M Univ. v. Chatha, 381 S.W.3d 500, 512 determine whether she has sufficiently alleged a (Tex. 2012); College of Mainland v. Glover, 436 TCHRA violation, she will only be required to Univ. of Tex. At Austin v. Kearney, NO. 03-14-00500-CV (Tex. App. May 03, 2016)

submit evidence if the defendant presents that Kearney communicated to University officials evidence negating one of those basic facts."3 on December 6, 2012, prior to Kearney's Garcia II, 372 S.W.3d at 637. If the pleadings termination on December 28, 2012, Kearney's affirmatively negate the existence of jurisdiction, counsel conceded that those prior acts are then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to Page 7 amend. Miranda, 133 S.W.3d at 227. not actionable and serve merely as background Page 6 facts in support of her current claims. Kearney repeats this position in her appellate brief.4 DISCUSSION Both Kearney's disparate treatment and Exhaustion of Remedies retaliation claims stem from her alleged constructive discharge, and the University does In its first issue, the University contends that not dispute that Kearney filed a charge of Kearney has not stated a prima facie case of discrimination within 180 days of the date of the disparate treatment or retaliation because she alleged constructive discharge—December 28, bases her claims on events for which she did not 2012. The record does not support, and the exhaust administrative remedies. Before filing University does not urge, that Kearney has failed suit in state court under the TCHRA, an employee to exhaust her administrative remedies as to the must first exhaust her administrative remedies by only claims she now asserts. We overrule the filing a complaint with the TWC within 180 days University's first issue. of the alleged discriminatory act, and failure to do so is a jurisdictional defect. See Tex. Lab. Code § Retaliation Claim 21.202(a); City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex. 2008) (describing "unique and In its second issue, the University argues that comprehensive provisions" established in Chapter Kearney has failed to state a prima facie claim for 21 and concluding that noncompliance with TWC retaliation because her own allegations negate procedures "deprives courts of subject-matter one of the required elements of a retaliation jurisdiction" over employment discrimination claim. To state a prima facie case for retaliation, disputes); Lueck v. State, 325 S.W.3d 752, 761-62 an employee must allege that (1) she engaged in (Tex. App.—Austin 2010, pet. denied). The University cites Kearney's allegations of Page 8 harassment and discrimination prior to the investigation that resulted in her termination and an activity protected by Chapter 21 of the Labor argues that she cannot sue for those acts because Code, (2) the employer took adverse action they occurred prior to September 9, 2012, which against her, and (3) a causal connection exists was 180 days before she filed suit. However, between the employee's protected activity and the Kearney's petition refers to the arguably stale alleged adverse employment decision. Tex. Lab. offensive acts not as causes of action, but rather in Code § 21.055; Anderson v. Houston Cmty. Coll. support of her current claims for constructive Sys., 458 S.W.3d 633, 647 (Tex. App.—Houston discharge based on disparate treatment and [1st Dist.] 2015, no pet.); Herbert v. City of Forest retaliation. Further, Kearney's counsel expressly Hill, 189 S.W.3d 369, 376 (Tex. App.—Fort Worth stated at the hearing on the University's plea to 2006, no pet.). Protected activities are listed in the jurisdiction that "Kearney is . . . suing the section 21.055 of the Labor Code and include (1) University . . . solely for the constructive opposing a discriminatory practice, (2) making or discharge that occurred between December 28, filing a charge, (3) filing a complaint, or (4) 2012 and January 5, 2013." Explaining that the testifying, assisting, or participating in any allegations of prior acts were the same allegations Univ. of Tex. At Austin v. Kearney, NO. 03-14-00500-CV (Tex. App. May 03, 2016)

manner in an investigation, proceeding, or fired her for having a relationship with a student hearing. Tex. Lab. Code § 21.055. athlete, she cannot show a but-for causal connection between her complaints of prior To establish causation, the employee must discrimination and her alleged constructive establish "a 'but for' causal nexus between the discharge. See Kingsaire, Inc. v. Melendez, 477 protected activity and the prohibited conduct." S.W.3d 309, 313 (Tex. 2015) (if employee's Anderson, 458 S.W.3d at 648. In other words, the termination was required by uniform plaintiff must prove that she would not have enforcement suffered an adverse employment action "but for" engaging in the protected activity. Id. Page 10 (characterizing causation element as requiring plaintiff to show that absent protected activity, of reasonable policy, it cannot be case that adverse employment action would not have termination would have occurred when it did but happened when it did); Navy v. College of the for employee's assertion of compensation claim or Mainland, 407 S.W.3d 893, 901 (Tex. App.— other protected conduct); Long, 88 F.3d at 305 Houston [14th Dist.] 2013, no pet.); Martinez v. n.4. Even if Kearney had asserted her retaliation Daughters of Charity Health Servs., No. 03-05- claim in the alternative, her alleged protected 00264-CV, 2006 Tex. App. LEXIS 10327, at *11- activity—reporting complaints of prior 12 (Tex. App.—Austin Nov. 30, 2006, no pet.) harassment and discrimination—occurred after (mem. op.); see University of Tex. Sw. Med. Ctr. she had been suspended and the investigation v. Nassar, 133 S. Ct. 2517, 2533 (2013) that ultimately led to her alleged constructive (concluding that plaintiff making retaliation claim discharge had been initiated. Because the adverse brought under Title VII must establish that employment action had already begun before protected activity was but-for cause of alleged Kearney raised her complaints of prior adverse action by employer); see also In re United harassment and discrimination, even if her Servs. Auto. Ass'n, 307 S.W.3d 299, 308 (Tex. complaints were a substantial element leading to 2010) (orig. proceeding) (because one of the her constructive discharge, Kearney cannot primary goals of the TCHRA is to coordinate state establish that she would not have been fired but and federal employment discrimination law, we for her complaints. See Long, 88 F.3d at 305 n.4. may look to analogous Consequently, as a matter of law, Kearney cannot establish the required causation element of Page 9 retaliation. See id.; Anderson, 458 S.W.3d at 648; Navy, 407 S.W.3d at 901. federal law as authority in interpreting the TCHRA). "Even if a plaintiff's protected conduct Further, because Kearney's pleadings is a substantial element in a defendant's decision affirmatively negate causation as to her retaliation to terminate an employee, no liability for unlawful claim, they affirmatively negate jurisdiction as to retaliation arises if the employee would have been that claim, and merely pleading more facts in terminated even in the absence of the protected support of her retaliation claim will not cure her conduct." Long v. Eastfield Coll., 88 F.3d 300, pleading defects. See Texas A&M Univ. Sys. v. 305 n.4 (5th Cir. 1996). Koseoglu, 233 S.W.3d 835, 839-40 (Tex. 2007) (merely pleading more facts in support of breach The University contends that Kearney's of contract claim against university would not pleadings negate causation. We agree. To support overcome university's immunity from breach of her disparate treatment claim, Kinney pleaded, contract suit absent statutory waiver); Miranda, and on appeal relies on, the allegation that the 133 S.W.3d at 227. Accordingly, Kearney need not University singled her out and fired her for having be afforded an opportunity to amend her a consensual relationship with a student athlete.5 pleadings. See Koseoglu, 233 S.W.3d at 840 Having affirmatively asserted that the University (pleader must be given opportunity to amend only Univ. of Tex. At Austin v. Kearney, NO. 03-14-00500-CV (Tex. App. May 03, 2016)

if it is possible to cure pleading defect); Miranda, Page 12 133 S.W.3d at 227. We sustain the University's second issue. "essentially comparable violation histories." Ysleta, 177 S.W.3d at 917-18; Petteway, 373 Page 11 S.W.3d at 789.

Disparate Treatment Claim The University contends that, as a matter of law, Kearney cannot show that she was treated In its reply brief, the University asserts for less favorably than similarly situated members of the first time that Kearney cannot establish one of the opposing class because the other employees the elements of disparate treatment. Because this she has cited were employed in different argument challenges the trial court's jurisdiction, capacities by different departments with different on interlocutory appeal, "we must address [this supervisors and at different, i.e., much earlier, argument] regardless of whether [the University] periods of time from Kearney. It also argues that raised [it] in the trial court." See Glover, 436 her reference to the former volleyball coach S.W.3d at 394; see also Dallas Metrocare Servs. regarding his alleged conduct between 1997 and v. Juarez, 420 S.W.3d 39, 41 (Tex. 2013) (per 2000 is a "vague allusion" to a "far-flung curiam) (court of appeals erred when it concluded incident[]" that cannot suffice as proof of a that it could not consider jurisdictional similarly situated individual during the relevant arguments raised for first time on appeal). To time period. As for the former football coach, the establish a prima facie case for disparate University argues that Kearney's conduct and that treatment, and thus to establish jurisdiction, of the former football coach are not comparable Kearney must have pleaded that (1) she is a because, in contrast with Kearney's ongoing member of a protected class, (2) she is qualified relationship, the former football coach "was for her position, (3) she was terminated, and (4) disciplined, but not fired, after a one-night stand she was treated less favorably than similarly with a UT student (who was not a student-athlete situated members of the opposing class. Garcia playing on his team and not under his II, 372 S.W.3d at 637 (to "satisfy [the] supervision)." Consequently, the University jurisdictional hurdle[,] . . . a plaintiff must plead contends, Kearney cannot show that the elements of her statutory cause of action—here misconduct of the two coaches was of comparable the basic facts that make up the prima facie seriousness or nearly identical. See Ysleta, 177 case"); Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d at 917-18. The University also argues that S.W.3d 915, 917 (Tex. 2005) (setting out elements Kearney cannot show that she and the former of disparate treatment claim). The University football coach had essentially comparable challenges only the fourth element—whether violation histories, as required. See Petteway, 373 Kearney can show she was treated less favorably S.W.3d at 789.6 than similarly situated members of the opposing class. Employees are similarly situated if their Page 13 circumstances are comparable in all material respects, including similar standards, supervisors, We do not find the University's arguments and conduct. Ysleta, 177 S.W.3d at 917; persuasive. While it may appear from the face of University of Tex. Med. Branch at Galveston v. Kearney's pleadings that some of the University Petteway, 373 S.W.3d 785, 789 (Tex. App.— employees alleged to be similarly situated or were Houston [14th Dist.] 2012, no pet.). The employed in different capacities in different misconduct of the disciplined and undisciplined departments and under different supervisors employees must be of "comparable seriousness" from Kearney, we cannot determine from the and "nearly identical," and the plaintiff and other pleadings alone whether "other coaches within employees must have the University's Athletic Department," in particular the former football coach—or for that Univ. of Tex. At Austin v. Kearney, NO. 03-14-00500-CV (Tex. App. May 03, 2016)

matter, the former volleyball coach, whose the University now makes factual assertions that employment overlapped with Kearney's—were it contends show that the former football coach, subject to different employment standards or the former volleyball coach, and the others are ultimate supervisors from Kearney.7 Nor can we not employees who are similarly situated to determine from the pleadings whether the former Kearney, it offered no evidence in support of its football coach's or the former volleyball coach's plea to the jurisdiction. However, as our sister conduct was of comparable seriousness or nearly court has observed, an argument that employees identical to that of Kearney or whether Kearney alleged to have been treated more favorably than and the former football coach or Kearney and the the plaintiff are not similarly situated to the former volleyball coach had comparable violation plaintiff challenges the existence of jurisdictional histories. facts. See Glover, 436 S.W.3d at 394. When a plea to the jurisdiction challenges the existence of Kearney alleged in her petition that she is an jurisdictional facts, we may consider relevant African-American woman, qualified for her evidence submitted by the parties and must do so former position, and that when she was when necessary to resolve the jurisdictional issue. terminated, she was treated less favorably than Miranda, 133 S.W.3d at 227; Bland Indep. Sch. other coaches who were white males, in particular Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000); the former football coach and the former Good Shepherd Med. Ctr., Inc. v. State, 306 volleyball coach. She alleged that the former S.W.3d 825, 831 (Tex. App.—Austin 2010, no football coach and other coaches were involved pet). with students or direct subordinates, that the former volleyball coach married his former Because the University produced no evidence student athlete, and that none of the white males in support of its plea to the jurisdiction and has was subjected to termination or even "meaningful asserted this challenge for the first time in its disciplinary actions." Thus, looking to Kearney's reply brief, there is no evidence in the record intent, construing her pleadings liberally in favor of jurisdiction, and accepting Page 15

Page 14 indicating that Kearney and the former football coach or Kearney and the former volleyball coach the allegations in the pleadings as true, we were not subject to similar standards and conclude that Kearney has pleaded the elements supervisors, that their conduct was not of of her statutory cause of action, i.e., the basic facts comparable seriousness or nearly identical, or of a prima facie case, and has sufficiently alleged a that they did not have comparable violation TCHRA violation. See Garcia II, 372 S.W.3d at histories. Instead, the University asserts only 637; Westbrook, 231 S.W.3d at 405; Ysleta, 177 arguments as to what the evidence would show S.W.3d at 917; Miranda, 133 S.W.3d at 226. She had it offered any. However, the arguments of is not "required to marshal evidence to prove her counsel are not evidence. In re Doe 3, 19 S.W.3d claim to satisfy [the] jurisdiction hurdle" until the 300, 305 (Tex. 2000); Banda v. Garcia, 955 University presents evidence negating one of S.W.2d 270, 272 (Tex. 1997) ("Normally, an those basic facts. See Garcia II, 372 S.W.3d 637. attorney's statements must be made under oath to constitute evidence."). Thus, the University asks As reflected in the clerk's record and as us to determine jurisdictional facts in the absence explained in its opening brief, the University of any record evidence whatsoever. Consequently, based its plea to the jurisdiction "solely on legal there is no evidence of the facts it now urges us to arguments applied to the Petition's face" and rely on in determining that Kearney cannot show "reserve[d] the right to challenge Ms. Kearney's she was treated less favorably than similarly factual allegations and present evidence to the situated employees. We cannot do so. See Sabine contrary at a later stage, if necessary." Although Offshore Serv., Inc. v. City of Port Arthur, 595 Univ. of Tex. At Austin v. Kearney, NO. 03-14-00500-CV (Tex. App. May 03, 2016)

S.W.2d 840, 841 (Tex.1979) (per curiam) (review based on gender and race and retaliation, and the limited to evidence properly in appellate record); University does not dispute that statement. see also Carlton v. Trinity Universal Ins. Co., 32 S.W.3d 454, 458 (Tex. App.—Houston [14th Dist.] 3. Although "[t]here is no prima facie case 2000, pet. denied) (parties cannot rely on matters requirement in the text of the TCHRA[,] . . . [t]he outside record in making arguments to appellate mechanics of the prima facie case . . . are products court). We conclude that Kearney has pleaded a of caselaw . . . consistently applied to TCHRA prima facie case of disparate treatment and that cases by [the Texas Supreme Court]." Mission the University has not produced evidence to Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d negate any of the elements of that claim. See 629, 638 (Tex. 2012) (Garcia II). Ysleta, 177 S.W.3d at 917-18; Petteway, 373 4. Relying on National Railroad Passenger S.W.3d at 789.8 Corporation v. Morgan, 536 U.S. 101, 113 (2002), the University argues Kearney cannot rely on "the Page 16 'background evidence' idea" to "save stale CONCLUSION allegations like the exhausted claims in Ms. Kearney's Petition." However, as discussed, Because Kearney has affirmatively negated Kearney has judicially admitted that her prior the required elements of her constructive claims are not actionable, see Texas Dep't of Pub. discharge claim based on retaliation, we reverse Safety v. Stanley, 34 S.W.3d 321, 322 (Tex. the district court's denial of the University's plea App.—Fort Worth 2000, no pet.) (statements to the jurisdiction as to the retaliation claim. We made by counsel at hearing on behalf of client can affirm the trial court's denial of the University's be considered judicial admissions), and has plea to the jurisdiction as to Kearney's claim of expressly waived any such claims in her appellate constructive discharge based on disparate brief. Further, although the U.S. Supreme Court treatment. in Morgan held that time-barred discrete acts cannot support a timely claim for hostile work /s/_________ environment, it also expressly stated that Title VII Melissa Goodwin, Justice of the Civil Rights Act of 1964 and its subsequent amendments do not "bar an employee from using Before Chief Justice Rose, Justices Goodwin and the prior acts as background evidence in support Bourland of a timely claim[,]" as Kearney does here. Morgan, 536 U.S. at 113; see Tex. Lab. Code § Affirmed in Part; Reversed and Remanded in Part 21.001(1) (TCHRA was enacted to "provide for the execution of the policies of Title VII of the Civil Filed: May 3, 2016 Rights Act of 1964 and its subsequent amendments"); In re United Servs. Auto. Ass'n, -------- 307 S.W.3d 299, 308 (Tex. 2010) (orig. proceeding) (we may look to federal law Footnotes: interpreting analogous Title VII provisions as 1. Because the University's plea to the authority). jurisdiction was based solely on legal arguments 5. As discussed above, to make a prima facie applied to the face of Kearney's petition, we take showing of retaliation, the plaintiff must establish the factual background as set forth in the parties' that (1) she engaged in an activity protected by pleadings and briefs. Chapter 21 of the Labor Code, (2) the employer 2.Although the record before us does not took adverse action against her, and (3) a causal contain a copy of the charge of discrimination, connection exists between the employee's Kearney states that she alleged discrimination protected activity and the alleged adverse Univ. of Tex. At Austin v. Kearney, NO. 03-14-00500-CV (Tex. App. May 03, 2016)

employment decision. See Tex. Lab. Code § 7. Although the University argues that the 21.055; Anderson v. Houston Cmty. Coll. Sys., former volleyball coach's conduct and the 458 S.W.3d 633, 647 (Tex. App.—Houston [1st University's response were too remote in time for Dist.] 2015, no pet.). Once the plaintiff meets this him to be a similarly situated employee, it offers requirement, the burden shifts to the defendant to no authority indicating how close in time to a demonstrate a legitimate, nondiscriminatory plaintiff's alleged adverse employment decision reason for the adverse employment action. Navy the allegedly more favorable decision must have v. College of the Mainland, 407 S.W.3d 893, 900 been made. See Tex. R. App. P. 38.1(i) (appellant's (Tex. App.—Houston [14th Dist.] 2013, no pet.). brief must contain appropriate citations to The plaintiff then assumes the burden of proving authorities). that the stated reason was pretextual. Id. 8. The cases the University cites in support of

Ordinarily, we would not reach the its argument are distinguishable in that the alternating burden-shifting analysis in reviewing defendants in those cases produced evidence to a plea to the jurisdiction. See McDonnell Douglas negate the plaintiffs' claims that other employees Corp. v. Green, 411 U.S. 792, 802 (1973) (if were similarly situated. See, e.g., Ysleta Indep. plaintiff establishes prima facie case and survives Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. plea to jurisdiction, burden would then shift to 2005) (appeal from jury trial with evidence and employer to "articulate some legitimate, testimony showing that conduct of other nondiscriminatory reason for the employee's employees was not of comparable seriousness); rejection"). In this case, however, even assuming University of Tex. Med. Brand at Galveston v. that Kearney met her initial burden by pleading Petteway, 373 S.W.3d 785, 786, 789 (Tex. App.— that she was terminated in retaliation for raising Houston [14th Dist.] 2012, no pet.) (reversing complaints of discrimination, she also alleged that denial of plea to jurisdiction where defendant the reason for her termination was her produced evidence that other employees did not undisclosed relationship with a student athlete. have comparable violation histories); Romo v. Thus, Kearney not only did not argue that the Texas Dep't of Transp., 48 S.W.3d 265, 272-73 University's nondiscriminatory reason was (Tex. App.—San Antonio 2001, no pet.) (affirming pretextual, but alleged it herself and relies on it as summary judgment for defendant where a basis for her disparate treatment claim. plaintiff's evidence failed to show prima facie case because, unlike plaintiff, other employee was 6. The University also appears to argue in a supervisor and where defendant offered single sentence that Kearney cannot show that undisputed testimony that plaintiff had less she was less favorably treated than the former education and experience than other employee); football coach because "she herself left UT before Grice v. Alamo Cmty. Coll. Dist., No. 04-12- it was clear what discipline she would receive." In 00524-CV, 2013 Tex. App. LEXIS 4999, at *1, addition, the University states in its reply brief *14-15 (Tex. App.—San Antonio Apr. 24, 2013, no that "[t]he fourth element [of a disparate pet.) (mem. op.) (affirming summary judgment in treatment claim] is the only one critical to favor of defendant where evidence showed understanding UT's jurisdictional argument." To plaintiff and other employees were not similarly the extent the University attempts by this situated with regard to supervisory argument to challenge Kearney's allegation that responsibilities); City of San Antonio ex rel. City she was terminated, the third element of a Pub. Serv. Bd. v. Gonzalez, No. 04-08-00829-CV, disparate treatment claim, the University has 2009 Tex. App. LEXIS 9701, at *8, *14-15 (Tex. failed to fully brief the issue and has therefore App.—San Antonio Dec. 23, 2009, pet. denied) waived it. See Tex. R. App. P. 38.1(i) (appellant's (mem. op.) (reversing judgment on jury verdict in brief must contain clear and concise argument for favor of plaintiff where evidence established contentions made with citation to authorities and conduct of other employees was not of record). comparable seriousness); see also Garcia II, 372 Univ. of Tex. At Austin v. Kearney, NO. 03-14-00500-CV (Tex. App. May 03, 2016)

S.W.3d at 642 (involving plea to jurisdiction in which defendant produced evidence negating one element of plaintiff's prima facie case); College of Mainland v. Glover, 436 S.W.3d 384, 390, 394 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (treating as plea to jurisdiction motion for summary judgment based on jurisdictional grounds and reversing denial where record evidence showed plaintiff's and other employees' circumstances were not nearly identical).

-------- University of Texas Med. Branch v. Hohman, 6 S.W.3d 767 (Tex. App. 1999)

Page 767 jurisdiction, based on sovereign immunity. William Mileski, M.D., and Martha Shelver, R.N., 6 S.W.3d 767 (Tex.App.-Houston[1st Dist.] employees of UTMB, bring their interlocutory 1999) appeals from the trial court's denial of their UNIVERSITY OF TEXAS MEDICAL motions for summary judgment, based on official BRANCH AT GALVESTON; WILLIAM immunity.1 MILESKI, M.D.; AND MARTHA SHELVER, R.N., Appellants BACKGROUND V. STEPHANIE HOHMAN, R.N. AND LISA Appellees, Stephanie Hohman and Lisa LIPPERT, R.N., Appellees Lippert (the nurses), are registered nurses who NO. 01-98-01382-CV worked in the emergency room at UTMB. Dr. In The Court of Appeals For The First Mileski was the chief of trauma and co-director of District of Texas emergency services, and Shelver was the nurse November 24, 1999 manager for the emergency room nurses. Dr. Mileski was hired to upgrade emergency room On Appeal from the 122nd District Court procedures so UTMB would qualify as a level one Galveston County, Texas, Trial Court Cause No. trauma center. 97CV0005 In their petition, the nurses allege that, after Page 768 Mileski took over the emergency room, they noticed a pattern of classifying patients as [Copyrighted Material Omitted] "trauma evaluation" patients, which resulted in the patients being "subjected to a myriad of Page 769 painful, unwanted, and at times unnecessary procedures, to which the patients refused, [Copyrighted Material Omitted] resisted, and/or to which they unknowingly submitted based on false information that the Page 770 procedure was necessary to preserve their health." The nurses voiced their concerns to the UTMB [Copyrighted Material Omitted] administration, the Texas Department of Health, the Board of Nurse Examiners, and the UTMB Page 771 police. They contend that as a result of their Panel consists of Justices Hedges, Andell, reports, UTMB retaliated against them to such a and Price.* degree that they were forced to resign.

OPINION ON REHEARING The nurses then filed suit, alleging violations of the Whistleblower Act as well as certain other HEDGES, Justice. common-law torts.

On this day, the Court considered appellant's PLEAS TO THE JURISDICTION motion for rehearing. The motion is DENIED. However, we withdraw our opinion of August 31, A. Standard of Review 1999, and issue this opinion in its stead. Our When a lawsuit is barred by sovereign judgment of August 31, 1999 remains unchanged. immunity, dismissal with prejudice for want of University of Texas Medical Branch at jurisdiction is proper. Liberty Mut. Ins. Co. v. Galveston (UTMB) brings this interlocutory Sharp, 874 S.W.2d 736, 739 (Tex. App.-Austin appeal from the denial of its plea to the 1994, writ denied). "In deciding whether to grant University of Texas Med. Branch v. Hohman, 6 S.W.3d 767 (Tex. App. 1999)

a plea to the jurisdiction, the trial court must look The Whistleblower Act provides: solely to the allegations in the petition." Id. Our task is not to determine whether the plaintiffs (a) A state or local governmental entity may ultimately win or lose upon judicial review; not suspend or terminate the employment of, or rather, our task is to examine the petition, to take take other adverse personnel action against, a as true the facts pleaded, and to determine public employee who in good faith reports a whether those facts support jurisdiction in the violation of law by the employing governmental trial court. The allegations in those pleadings are entity or another public employee to an to be appropriate law enforcement authority.

Page 772 TEX. GOV'T CODE ANN. 554.002(a) (Vernon Supp. 1999) (emphasis added). construed in favor of the plaintiff. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, "Adverse personnel action" is defined as an 446 (Tex. 1993). "action that affects a public employee's compensation, promotion, demotion, transfer, B. Sovereign Immunity on Whistleblower work assignment, or performance evaluation." Claims TEX. GOV'T CODE ANN. 554.001(3) (Vernon Supp. 1999). In issue number one, UTMB contends that the trial court erred in denying its plea to the We disagree with UTMB's analysis. The issue jurisdiction on the nurses' whistleblower claims. is not whether there was an Specifically, UTMB contends that it is entitled to sovereign immunity on these claims because the Page 773 nurses (1) suffered no "adverse personnel action" as that term is defined by the Whistleblower Act; "adverse personnel action." The issue is whether a (2) failed to bring their Whistleblower claims constructive discharge is a "termination." We within the applicable statute of limitations; and believe that it is. (3) failed to exhaust their administrative remedies. In Nguyen v. Technical & Scientific Application, Inc., 981 S.W.2d 900, 901 (Tex. The Whistleblower Act contains a waiver of App.-Houston [1st Dist.] 1998, no pet.), this Court the state's sovereign immunity. TEX. GOV'T was asked to decide whether an employee who CODE ANN. 554.035 (Vernon Supp. 1999). Thus, was constructively discharged, but not fired, had a the issue this Court must decide is whether the Sabine Pilot3 cause of action. We held that a nurses' pleadings state a cause of action falling constructive discharge was sufficient to fulfill the within the Whistleblower Act's waiver of "firing" requirement of the Sabine Pilot exception, sovereign immunity. noting, "[w]e doubt the Texas Supreme Court intended to permit employers to avoid liability by 1. Is constructive discharge an "adverse coercing resignations from, rather than firing, personnel action" or "termination"? their employees who refused to break the criminal law." Id. at 902. UTMB first contends that the nurses' pleadings are inadequate to state a claim under Although the Whistleblower Act is a statutory the Whistleblower Act because the petition cause of action for wrongful discharge, rather concedes that they resigned and were not fired.2 than a common-law exception to the UTMB argues that a "constructive discharge" is employment-at-will doctrine, we nonetheless find not an "adverse personnel action" as defined by the reasoning of Nguyen persuasive. The the Whistleblower Act. We disagree. legislature could not have intended to provide a University of Texas Med. Branch v. Hohman, 6 S.W.3d 767 (Tex. App. 1999)

cause of action to employees who were fired for TEX. GOV'T CODE ANN. 554.005 (Vernon reporting violations of the law, while at the same 1994). time excluding employees who were coerced into resigning. UTMB argues that limitations began to run from the instant the nurses believed they were "Constructive discharges" have been held to being retaliated against. Pointing to several meet the termination or firing element in several discreet acts leading up to the nurses' other types of cases. See Junior v. Texaco, Inc., resignations, UTMB contends that the nurses 688 F.2d 377, 378 n.3 (5th Cir. 1982) have filed their suit too late.4 The nurses respond (constructive discharge is legal substitute for that their suits were timely because they were discharge element in discrimination cases under filed within 90 days of the date they were Title VII of Civil Rights Act of 1964); see also constructively discharged. We must decide what Passons v. University of Tex., 969 S.W.2d 560, action is "the alleged violation" of the 562 (Tex. App.-Austin 1998, no pet.) (constructive Whistleblower Act: the first of the alleged discharge meets discharge element of TEX. LAB. CODE ANN. 21.051 (Vernon 1996)); see also Page 774 Davila v. Lockwood, 933 S.W.2d 628, 630 (Tex. App.-Corpus Christi 1996, no pet.) (assuming retaliatory acts or the constructive discharge. constructive discharge met discharge requirement under TEX. LAB. CODE ANN. 451.001 (Vernon Having held that constructive discharge is a 1996), which prohibits firing for filing worker's "termination" under the Whistleblower Act, it compensation claim). follows that "the alleged violation" giving rise to the nurses cause of action is, necessarily, the We hold that by pleading that they were constructive discharge itself. Therefore, the constructively discharged, the nurses have met nurses were required to bring their suit within 90 the "termination" requirement of the days of the date they were allegedly constructively Whistleblower Act. A question of fact remains for discharged. the jury to decide whether the nurses were, in fact, constructively discharged. A constructive discharge occurs when an employer makes conditions so intolerable that an 2. Statute of limitations employee reasonably feels compelled to resign. Passons, 969 S.W.2d at 562; Davila, 933 S.W.2d UTMB also argues that even if pleading a at 630. In Davila, the court held that the plaintiff's constructive discharge is sufficient under the claim for constructive discharge arose at the time Whistleblower Act, the nurses filed their petition that he tendered his resignation because, by that outside the applicable statute of limitations, date, he had decided that "conditions were so which provides: intolerable that he felt compelled to resign." Id; see also Stroud v. VBFSB Holding Corp, 917 Except as provided by Section 554.006, a S.W.2d 75, 80-81 (Tex. App.-San Antonio 1996, public employee who seeks relief under this writ denied) (Sabine Pilot cause of action alleging chapter must sue not later than the 90th day after constructive discharge accrued when plaintiff the date on which the alleged violation of this tendered resignation). chapter: The record in this case shows that Lippert (1) occurred; or tendered her resignation on October 23, 1996, which was to take effect November 6, 1996. (2) was discovered by the employee through Hohman tendered two letters of resignation, one reasonable diligence. dated October 28, 1996, and one dated November 1, 1996. Both provide an effective date of University of Texas Med. Branch v. Hohman, 6 S.W.3d 767 (Tex. App. 1999)

November 15, 1996. The record does not show [is] available under the grievance policy once an Lippert's last day of work, though presumably it individual ceases to be a UTMB employee." was in November 1996; Hohman's last day of Nonetheless, a copy of this letter is being sent to work was November 3, 1996. the UTMB official in charge of grievances in order to provide continuing notice of her grievance Regardless of when the nurses actually left against UTMB and provide the University with an the employment of UTMB, we hold that their opportunity to respond and remedy the situation constructive discharge claims accrued on the if it so desires. If you have any questions, please dates they submitted their resignations. By those do not hesitate to call me. dates, they were aware that conditions had become intolerable and that they felt compelled to No administrative remedial action was taken resign. Both nurses filed suit on January 6, 1997, by UTMB. within 90 days of the date they tendered their resignations. Thus, their Whistleblower claims are Page 775 timely. UTMB contends that this letter came too late. 3. Exhaustion of Administrative Remedies Specifically, UTMB points to several of the earlier alleged retaliatory acts, and contends that Finally, UTMB argues that the nurses cannot grievances should have been filed then.5 However, assert whistleblower claims because they did not as we stated in the previous section, the "alleged initiate administrative appeal procedures. A violation" in this case is not any one particular public employee must initiate action under the retaliatory act, but the constructive discharge grievance or appeal procedures of the employing itself. Thus, the nurses had 90 days from their state entity relating to suspension or termination constructive discharges (or, in this case, the date of employment before suing under the of their resignations) to initiate a grievance Whistleblower Act. See TEX. GOV'T CODE ANN. procedure. The December 3, 1996 letter to the 554.006(a) (Vernon Supp. 1999). The employee UTMB official in charge of grievances fell within must invoke the applicable grievance or appeal the 90 day period. procedures not later than the ninetieth day after the date on which the alleged violation occurred. UTMB also argues that the letter was not a See TEX. GOV'T CODE ANN. 554.006(b) (Vernon clear intent to invoke the grievance procedure. Supp. 1999). When a party sues under a statutory We disagree. When it is unclear whether the cause of action, the party must comply with the employer has a post-termination grievance administrative prerequisites, which are procedure, or it is unclear what the procedure is, jurisdictional. Gregg County v. Farrar, 933 and the terminated employees timely notify the S.W.2d 769, 777 (Tex. App.-Austin 1996, writ employer that they are invoking the grievance denied). Under the Whistleblower Act, the procedure, terminated employees have legislature intended that the governmental entity adequately implicated the grievance procedures. be afforded the opportunity to correct its errors See Beiser v. Tomball Hosp. Auth., 902 S.W.2d by resolving disputes before facing litigation. Id. 721, 724 (Tex. App.-Houston [1st Dist.] 1995, writ at 775. denied). In this case, the letter was sufficient to put UTMB on notice that the nurses were seeking On December 3, 1996, the nurses' attorney some type of administrative relief in connection sent a letter to UTMB that informed UTMB of the with their alleged constructive discharges. nurses' constructive discharge claims, and provided in pertinent part: We hold that the nurses timely and effectively initiated administrative remedies under the I understand that UTMB's employment Whistleblower Act. manual provides that "no remedy or corrective University of Texas Med. Branch v. Hohman, 6 S.W.3d 767 (Tex. App. 1999)

4. Conclusion the legislature has by clear and unambiguous language waived Because the nurses have (1) initiated a grievance and filed suit in a timely manner, and Page 776 (2) properly pled a cause of action under the Whistleblower Act, the waiver of sovereign immunity for claims of retaliation under the immunity in the Whistleblower Act applies. Thus, Nurse Reporting Act. the trial court properly denied UTMB's plea to the jurisdiction on the nurses' whistleblower claims. The Nurse Reporting Act provides in pertinent part: We overrule issue one. No person shall suspend, terminate, or C. Sovereign Immunity as to Claims under otherwise discipline or discriminate against a the Nurse Reporting Act person reporting, without malice, under [the Act]. A person has a cause of action against an In issue three, UTMB contends that the trial individual, organization, agency, facility, or other court erred in denying its plea to the jurisdiction person that suspends or terminates the on Hohman's claim that she was retaliated against employment of the person or otherwise for making a report under the Nurse Reporting disciplines or discriminates against the person for Act.6 Specifically, UTMB contends that the Nurse reporting under [the Act]. Reporting Act does not contain a clear and unambiguous waiver of sovereign immunity. In TEX. REV. CIV. STAT. ANN. art. 4525a, 11 issue four, defendant Shelver contends that, in (Vernon Supp. 1999) (emphasis added). her official capacity, she is also entitled to immunity on Hohman's claims under the Nurse The nurses argue that by using the word Reporting Act. A suit against a government "agency" in the statute, the Legislature manifested employee in her official capacity is, in all respects, its clear intent to waive the State's sovereign a suit against the State; therefore, the employee immunity. We disagree. sued in her official capacity is shielded by sovereign immunity. See Whitehead v. University In one section of the Nurse Reporting Act, the of Tex. Health Sciences Ctr. San Antonio, 854 statute specifically imposes a duty on "state S.W.2d 175, 180 (Tex. App.-San Antonio 1993, no agencies" to report nurses who fail to conform to writ). Accordingly, we will discuss issues three the minimum standards of acceptable nursing and four together. practice. See TEX. REV. CIV. STAT. ANN. art. 4525a, 4 (Vernon Supp. 1999). Another section of 1. Does the Nurse Reporting Act Contain a the Act imposes duties on "each hospital, health Waiver of Sovereign Immunity? science center, nursing home, home health agency, other health-care facility, state agency, The waiver of governmental immunity is a political subdivision, school of professional matter addressed to the Legislature. City of nursing, temporary nursing service, or person LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. that employs, hires, or contracts for the services 1995). To waive the State's sovereign immunity, of registered nurses" to report the identity of the Legislature must do so by clear and nurses it disciplines or fires for chemical unambiguous language. Id.; Duhart v. State, 610 dependency problems. See TEX. REV. CIV. STAT. S.W.2d 740, 742 (Tex. 1980). The same rule ANN. art. 4525a, 2(a), (b) (Vernon Supp. 1999) applies to the waiver of immunity for other (emphasis added). Thus, in at least two sections governmental entities. Barfield, 898 S.W.2d at of the Nurse Reporting Act, the legislature was 291. The issue the Court must decide is whether careful to clearly reference "state agencies." In fact, section 2 makes a distinction between "state University of Texas Med. Branch v. Hohman, 6 S.W.3d 767 (Tex. App. 1999)

agencies" and "home health agencies." However, The remaining issues concern the propriety section 11, which creates a cause of action for of the trial court's denial of Dr. Mileski's and nurses who suffer retaliation, uses the generic Nurse Shelver's motions for summary judgment, term "agency." "Agency" is not defined by the Act. which are based on official immunity.

Language in a statute is presumed to be A. Standard of Review selected and used with care, and every word or phrase in a statute is presumed to be intentionally Summary judgment is proper when a movant used with a meaning and purpose. Chastain v. establishes that there is no genuine issue of Koonce, 700 S.W.2d 579, 582 (Tex. 1985). material fact and that the movant is entitled to Similarly, every word omitted from a statute must judgment as a matter of law. Randall's Food be presumed to have been excluded for a reason. Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 Cameron v. Terrell & Garrett, Inc., 618 S.W.2d (Tex.1995); Bangert v. Baylor College of Med., 881 535, 540 (Tex. 1981). Therefore, we must presume S.W.2d 564, 566 (Tex. App.-Houston [1st Dist.] that the legislature intentionally omitted the 1994, writ denied). In reviewing the summary modifying term "state" from the term "agency" in judgment, we indulge every reasonable inference section 11 of the Nurse Reporting Act. Thus, we in favor of the nonmovant and resolve any doubts find no clear intent to provide a cause of action in its favor. Randall's Food Mkts., Inc., 891 against "state agencies" for retaliation claims S.W.2d at 644; Bangert, 881 S.W.2d at 565-66. under the Nurse Reporting Act. Defendants are entitled to summary judgment if they conclusively establish all elements of an 2. Conclusion affirmative defense as a matter of law. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 The term "agency" is used ambiguously in (Tex. 1991); Bangert, 881 S.W.2d at 566. section 11; it could refer to "state agencies," "home health agencies," or both. We hold that B. Sovereign Immunity for Claims against there is no clear and unambiguous waiver of Mileski and Shelver in their Official Capacities sovereign immunity in section 11 of the Nurse Reporting Act.7 In issues six and seven, Mileski and Shelver contend that the trial court erred by denying their The trial court erred by denying UTMB's plea motions for summary judgment on the nurses' to the jurisdiction on Hohman's claims under the claims against Mileski and Shelver in their official Nurse Reporting Act. Furthermore, to the extent capacities of (1) wrongful discharge, (2) that Shelver was acting in her official capacity, she defamation, (3) intentional infliction of emotional enjoys the same governmental immunity as distress, (4) conspiracy, and (5) invasion of UTMB on Hohman's claims under the Nurse privacy. Reporting Act. See Bagg v. University of Tex. Med. Branch at Galveston, 726 A suit against government employees in their official capacities is, in all respects, a suit against Page 777 the State; thus, employees sued in their official capacities are shielded by sovereign immunity. S.W.2d 582, 586 (Tex. App.-Houston [14th Dist.] See Whitehead, 854 S.W.2d at 180; Bagg, 726 1987, writ ref'd n.r.e.). S.W.2d at 586. Thus, the issue we must decide is whether UTMB has sovereign immunity from We sustain issues three and four. these claims. If it does, such immunity also protects Mileski and Shelver in actions brought MOTIONS FOR SUMMARY JUDGMENT against them in their official capacities.

1. Intentional Torts University of Texas Med. Branch v. Hohman, 6 S.W.3d 767 (Tex. App. 1999)

Defamation, conspiracy, intentional infliction C. Official Immunity for Claims against of emotional distress, and invasion of privacy are Mileski and Shelver in their Individual Capacities intentional torts. See Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 617 (Tex. 1996) (civil In issues two, five, and eight, Mileski and conspiracy); Twyman v. Twyman, 855 S.W.2d Shelver contend that they are entitled to official 619, 621-22 (Tex. 1993) (intentional infliction of immunity on the nurses' claims against them in emotional distress); Billings v. Atkinson, 489 their individual capacities. Specifically, in issues S.W.2d 858, 860-61 (Tex. 1973) (invasion of five and eight, Shelver contends that she is privacy); City of Hempstead v. Kmiec, 902 S.W.2d entitled to official immunity on (1) Hohman's 118, 122 (Tex. App.-Houston [1st Dist.] 1995, no claims against her under the Nurse Reporting Act writ) (defamation). and (2) Lippert's claims against her for invasion of privacy. In issue two, both Mileski and Shelver The Texas Tort Claims Act provides that argue that they are entitled to official immunity sovereign immunity exists for intentional torts. on the nurses' claims for wrongful discharge, TEX. CIV. PRAC. & REM. CODE ANN. 101.057 defamation, intentional infliction of emotional (Vernon 1997). Therefore, UTMB, as a state distress, and civil conspiracy. agency, cannot be held liable for intentional torts of its employees. Similarly, Mileski and Shelver, To show entitlement to official immunity, a in their official capacities, cannot be held liable defendant must show that his or her action was for intentional torts. (1) a discretionary function, (2) performed in good faith, and (3) within the scope of his 2. Wrongful Discharge under Sabine Pilot authority. Kassen v. Hatley, 887 S.W.2d 4, 8-9 (Tex. 1994). Official immunity is an affirmative Under Sabine Pilot Service, Inc. v. Hauck, defense. City of Lancaster v. Chambers, 883 687 S.W.2d 733 (Tex. 1985), employees fired for S.W.2d 650, 653 (Tex. 1994). We must determine refusing to perform an illegal act may sue their whether Mileski and Shelver conclusively employers for wrongful discharge. However, the established each element of the defense, and, if Sabine Pilot exception to the doctrine of so, whether the nurses produced evidence raising employment at will does not supercede the State's a fact issue on any element of the defense. See right to assert sovereign immunity. Carroll v. Kassen, 887 S.W.2d at 8. Black, 938 S.W.2d 134, 135 (Tex. App.-Waco 1996, writ denied.) Because no Sabine Pilot cause Because we conclude the issue of good faith is of action can be asserted against the State, dispositive, we will address that element first. The government officials sued in their official test for good faith of a government official is capacities are similarly protected. See id. at 134. whether, under the same or similar circumstances, reasonable government employees Page 778 could have believed that their actions were lawful, based on the information they possessed at the 3. Conclusion time of the conduct. Chambers, 883 S.W.2d at 656; Murillo v. Vasquez, 949 S.W.2d 13, 16 (Tex. Because the State would be entitled to assert App.-San Antonio 1997, writ denied). If the sovereign immunity to the nurses' claims of defendants prove good faith as a matter of law, wrongful discharge, civil conspiracy, defamation, the burden of production shifts to the plaintiff to and intentional infliction of emotional distress, raise a fact question on the element. In order to Mileski and Shelver, when sued in their official controvert summary-judgment proof on the capacities, have the same immunity. element of good faith, the plaintiffs must show that "no reasonable person in the defendant's Accordingly, we sustain issues six and seven. position could have thought the facts were such University of Texas Med. Branch v. Hohman, 6 S.W.3d 767 (Tex. App. 1999)

that they justified [the] defendant's acts." Mileski's evidence suggests the actions Chambers, 883 S.W.2d at 657. allegedly taken against the nurses were not in retaliation for their complaints, but were in fact 1. Mileski based on his good faith belief that they had conflicts in performing procedures required of an Mileski's affidavit provided the following emergency room nurse. Mileski denied knowing evidence on the issue of official immunity: or speaking about Lippert and denied ever threatening to "get rid of the nurses." 7. I remember meeting Ms. Hohman at an ethics round table discussion in August 1996. I In their response, the nurses submitted the questioned her regarding some of the statements following evidence: she made during the discussion, because based on her statements, it was my opinion that she 1. Nurse Hohman's affidavit, which provided: appeared to have a conflict about performing "UTMB management persons and their some of the procedures required in the trauma subordinates persisted in making statements to setting. I did not impugn her skills as a nurse, other UTMB employees attacking me and other because I had no knowledge of her skills and it is nurses who made the reports. When Mileski not my responsibility to evaluate nursing skills. I threatened the nurses that had caused him never attempted "to get rid of her" or made any trouble in the Spring, 1997, and threatened to get statements to that effect to any intern, resident, or their licenses, I knew that he was referring to Ms. anyone else. [Lippert] and I. Ms. [Lippert] and I publicly revealed our concerns and made official reports to 8. I did discuss with the Nurse Manager, the appropriate agencies. I was frightened when I Martha Shelver, what appeared to be Ms. learned about Dr. Mileski's threats to get my Hohman's apparent conflict with her role in the license because I believe he is capable of such crash room, as it was my goal to develop an malicious actions." efficient, skilled trauma team that would work well together to ensure that optimum quality of 2. Nurse Lippert's affidavit, which provided: care was provided to every trauma patient. "When Dr. Mileski told a UTMB nurse in the Spring, 1997, that he was going to "get those 9. Until she filed this lawsuit, I did not know bitches" that had caused trouble for him and/or Lisa [Lippert]. I never made any verbal or written get their licenses, I knew he was talking about Ms. statement about her, defamatory or otherwise. Hohman and myself. I had been quoted in the newspaper and had filed suit against Dr. Mileski Page 779 by that time. I was very frightened when I heard about Dr. Mileski's threats against me because I 10. Any comments I made regarding Ms. knew that he could, and was capable of, causing Hohman were based on my personal observations even more severe damage to my career than had and reports received from other doctors and on already occurred while I was employed there." my good faith belief that my statements were true. 3. Nurse Sharon Atwell's deposition, in which 11. All actions taken in regard to Plaintiffs, if she testified: "Dr. Mileski threatened the licenses any, were taken within the course and scope of my of the nurses that were causing trouble for him as employment, using my discretionary judgment, he put it. He said that he was going to have their and in good faith. licenses."

12. At all times, I conducted myself as a Mileski's statement that his actions were reasonably prudent Chief of Trauma Services and taken in good faith was a conclusory statement Co-Director of Emergency Medicine. University of Texas Med. Branch v. Hohman, 6 S.W.3d 767 (Tex. App. 1999)

and may not be considered as summary judgment as Nurse Manager responsible for supervising 90- of good faith.8 Thomas v. 100 nurses caring for emergency and trauma patients. Page 780 Shelver's evidence suggests that her actions Collins, 960 S.W.2d 106, 113 (Tex. App.-Houston could not have been in retaliation for reports filed [1st Dist.] 1997, pet. denied). However, Dr. by the nurses because she did not know about the Mileski's summary judgment proof indicates that reports until after the nurses quit. a reasonable official in Mileski's place could have believed that the actions against the nurses were The nurses filed the following evidence in justified because they had a conflict with response: performing procedures required of ER nurses. Thus, Dr. Mileski carried his summary judgment 1. Hohman's affidavit, which provides: "I burden to show good faith. contacted the Texas Board of Nurse Examiners seeking information about the appropriate course The burden then shifted to the nurses to of action. I also reported the incidents and pattern show that no reasonable person in Dr. Mileski's and practice of patient abuse and rights violations position could have believed that the that I had observed to Ms. Kim Flores of the circumstances justified the actions taken against Board of Nurse Examiners. I told Shelver, Jackie them. To meet this burden, the nurses introduced Aoughsten (Shelver's assistant) in late August, summary judgment evidence to show that 1996, and on separate occasions to Stephanie Mileski's actions were taken in retaliation for DeJohng (UTMB charge nurse), Lisa [Lippert], "causing trouble for him" by reporting what they Sharon Atwell, Hollie Walker and other UTMB believed to be criminal and ethical violations in Emergency Room nurses that I had contacted and the emergency room at UTMB. This evidence made a report to the Texas Board of Nurse presents a question of fact for a jury to resolve on Examiners. After I told Ms. Shelver about the the issue of Dr. Mileski's good faith. report, I was retaliated against, including being placed on notice of suspension, changed work 2. Shelver schedules, harassment, chart audits, monitoring and verbal harassment." In support of her motion for summary judgment, Shelver presented the following 2. Lippert's affidavit, which provided: "I was evidence on the element of "good faith." subjected to retaliatory actions following my reports of patient abuse to UTMB Nursing 11. I [Shelver] did not learn that any reports Administration and the Texas Department of about allegations of patients' rights violations had Health in August, 1996, all of which became so been made to agencies outside of UTMB until I intolerable that I was forced to resign. I told read about it in the media in late November 1996, Stephanie DeJohng, UTMB charge nurse, about weeks after the Plaintiffs were no longer working the anonymous report to the Texas Department of at UTMB. I had no knowledge of the assault Health shortly after I made the report in August, complaint filed the UTMB police department 1996. After I told Ms. DeJohng about my report to prior to the initiation of this lawsuit. the Texas Dept. of Health in August, 1996, I was subjected to the following unwarranted and 12. I had no knowledge that a report had been retaliatory actions, made to the board of Nurse Examiners until this lawsuit was filed. Page 781

13. All actions taken in regard to the Plaintiffs verbal reprimands, admonishments, and threats were done in good faith, using my best judgment by Martha Shelver . . . ." University of Texas Med. Branch v. Hohman, 6 S.W.3d 767 (Tex. App. 1999)

3. Lippert's affidavit also provided: "The fact as they relate to Mileski and Shelver in their that Stephanie Hohman had made a report to the official capacities. Finally, we reverse and remand Texas Board of Nurse Examiners was a matter of all claims against Mileski and Shelver in their common knowledge in the Emergency individual capacities because there is a question Department. I was aware of it and Ms. Hohman of fact on the element of good faith. and I did not even work on the same shift." --------------- In contrast to Shelver's affidavit, the nurses' evidence suggests that Shelver did, in fact, know Notes: about the reports before the alleged acts of retaliation occurred. Accordingly, we hold that *. The Honorable Frank C. Price, former justice, there is a fact question on the issue of Shelver's Court of Appeals, First District of Texas at good faith. Houston, participating by assignment.

1. We have jurisdiction over UTMB's appeal Shelver also contends that Hohman's claim pursuant to TEX. CIV. PRAC. & REM. CODE against her individually under the Nurse ANN. 51.014(a)(8) (Vernon Supp. 1999), which Reporting Act must fail because Hohman did not allows a governmental unit to appeal an order state a claim under the Act. Specifically, Shelver denying its plea to the jurisdiction. We have argues that Hohman never filed a written report, jurisdiction over Mileski's and Shelver's appeals but only made an oral report to the board of pursuant to TEX. CIV. PRAC. & REM. CODE nursing examiners. ANN. 51.014(a)(5) (Vernon Supp. 1999), which allows an individual who is an employee of the However, in Clark v. Texas Home Health, state to appeal the denial of a summary judgment Inc., 971 S.W.2d 435, 437 (Tex. 1998), the court based on an assertion of immunity. held that a written report was not a prerequisite to receiving protection against retaliation under 2. The nurses' petition alleges retaliation in the section 11 of the Nurse Reporting Act. Thus, following paragraphs: Hohman did state a claim under the Nurse Reporting Act. Because we have already held that Defendants retaliated against Plaintiffs for there was a question of fact regarding Shelver's reporting the illegal acts and violations, and for good faith on this claim, summary judgment was refusing to participate and go along with the not appropriate. illegal acts. Forms of retaliation include, but are not limited to, threats or notices of suspension, We overrule issues two, five, and eight. reprimands, poor performance reviews inconsistent with performance, verbal CONCLUSION harassment, threats, and failure to promote. Hohman and Gray [Lippert] repeatedly prepared Because we have held that the nurses and presented the appropriate management staff properly pled a cause of action under the with "issues and concerns" reports, outlining Whistleblower Act, and that the Act waives inappropriate patient care treatment as discussed sovereign immunity from suit, we affirm the trial herein. Gray was harassed and intimidated on a court's ruling denying the UTMB's plea to the daily basis, which included, but is not limited to, jurisdiction on those claims. In light of our denial of lunch and restroom breaks, holding that the Nurse Reporting Act does not chastisement for going to the bathroom during a contain a waiver of sovereign immunity from suit, shift, false accusations of improper conduct, we dismiss those claims as they relate to UTMB or failure to appoint Gray as charge nurse thus Shelver when sued in her official capacity. denying her valuable experience, verbal Because no cause of action for intentional torts harassment, threats, and withholding of will lie against the State, we dismiss those claims evaluations thus holding up merit and promotion University of Texas Med. Branch v. Hohman, 6 S.W.3d 767 (Tex. App. 1999)

raises. Plaintiffs were treated in a demeaning and 6. See TEX. REV. CIV. STAT. ANN. art. 4525a threatening manner because they brought their (Vernon Supp. 1999). complaints to the attention of management. 7. For examples of clear and unambiguous .... waivers of sovereign immunity, see (1) the Texas Tort Claims Act, which states "[s]overeign Because of those reports and the nurses' actions immunity to suit is waived and abolished to the in attempting to halt the illegal acts and the extent of liability created by this chapter." TEX. improperly instituted invasive and overly CIV. PRAC. & REM. CODE ANN. 101.025(a) aggressive procedures, the nurses were subjected (Vernon 1997) and (2) the Whistleblower Act, to retaliation such as reprimands, sudden work which states "a public employee who alleges a shift changes, written reprimands, frequent violation of this chapter may sue the employing personal confrontations with management level state or local governmental entity for the relief personnel, attempts to discredit the nurses provided by this chapter. Sovereign immunity is professionally, poor performance reviews, verbal waived and abolished to the extent of liability for harassment, threats and additional adverse the relief allowed under this chapter for a employment conditions. violation of this chapter." TEX. GOV'T CODE ANN. 554.035 (Vernon Supp. 1999). The illegal and unethical conduct and harassment continued despite their complaints until both 8. Conceding that Mileski had limited, direct Plaintiffs were forced to resign under the pressure involvement with the nurses, they nonetheless of continued violations of patients' rights, alleged that he was responsible for the following constant harassment and personal attacks, the acts of retaliation by his subordinates: futility of the internal grievance process, severely detrimental work conditions, and mounting * verbal reprimands, admonishments, and threats retaliation to which no reasonable person would continue to subject themselves. * derogatory comments attacking quality of their nursing care 3. Under Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 734 (Tex. 1985), an employee fired * placed on notice of suspension for refusing to perform an illegal act can sue for * given adverse performance review wrongful discharge. * humiliated in front of peers by challenging their 4. UTMB argues that Hohman's limitations began competence to run with the July 29, 1996 personnel evaluation, which means her suit should have * threatened with being "eliminated" by hospital been filed on or before October 28, 1996. UTMB official if continued reports were made argues that Lippert's limitations began to run on September 6, 1996, when she was reprimanded * singled out for monitoring of patients' charts for being inattentive to a patient, which means that her suit should have been filed by December * unnecessary schedule changes 5, 1996. Both nurses filed suit on January 6, 1997. * false accusations of harming a patient 5. For instance, UTMB argues that Lippert never * written up and reprimanded for speaking out on invoked the grievance procedure before resigning patient violations and, the only time Hohman filed a grievance from a notice of intent to suspend, she received the * nursing licenses placed in jeopardy relief she requested. * transferred out of trauma to less challenging areas of work University of Texas Med. Branch v. Hohman, 6 S.W.3d 767 (Tex. App. 1999)

* denied a grievance procedure

* designated as non-rehirable and denied pay by letter status

* performance review withheld

* denied possibility of promotion

* placed on "action plan" for alleged documentation deficiencies

* falsely accused in writing of improper conduct

* denied breaks during work hours

The acts of retaliation allegedly began in early 1996, shortly after Mileski assumed control of the emergency room and implemented new procedures, escalated in August 1996, after the nurses began reporting what they believed to be criminal and ethical violations of patients' rights, and culminated in the nurses' resignations in November 1996. The nurses allege that the retaliation continued even after their 1996 resignations when, in the spring 1997, Mileski threatened to "get their licenses."

--------------- Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

484 S.W.3d 440 on the plea and dismissing her constitutional claims sua sponte. Vicki Ward, Appellant v. In her first issue, Ward argues the trial court Lamar University and Texas State erred in dismissing her claims under the University System, Appellees Whistleblower Act because her amended petition and testimony sufficed to defeat a plea to the NO. 14–14–00097–CV jurisdiction. We hold the trial court erred in dismissing Ward's whistleblower claims against Court of Appeals of Texas, Houston (14th Lamar University because there is evidence that Dist.). she met the Act's grievance requirement and that Lamar took an adverse personnel action against Substitute Majority and Dissenting her. The court properly dismissed Ward's Opinions filed January 12, 2016 whistleblower claims against the Texas State University System, however, because there is no Iain Gordon Simpson, Houston, TX, Larry Watts, evidence it took such an action. Missouri City, TX, for Appellant. In her second issue, Ward asserts the trial court Esteban Soto, Austin, TX, Eric L. Vinson, Austin, erred by dismissing her free speech retaliation TX, for Appellees. claim against Lamar and the System under the Declaratory Judgments Act and the Texas Panel consists of Chief Justice Frost and Justices Constitution because no basis existed for the Christopher and Busby court's dismissal. As to Lamar, we agree that the trial court erred in dismissing this claim sua SUBSTITUTE MAJORITY OPINION sponte. With respect to the System, however, we J. Brett Busby, Justice hold that the claim was properly dismissed on the same ground as the whistleblower claims: lack of We issued majority and dissenting opinions in evidence of an adverse personnel action. We this case on May 12, 2015. We affirmed the trial affirm in part, reverse in part, and remand the court's order of dismissal in part, reversed it in case for further proceedings. part, and remanded for further proceedings. Appellees subsequently filed a motion for [484 S.W.3d 444] rehearing, and appellant filed a response. These BACKGROUND filings narrowed the scope of the issues before us and raised a new issue of mootness that requires Appellant Vicki Ward filed a petition alleging that further consideration. We therefore grant the appellees had violated the Texas Whistleblower motion, withdraw our previous opinions, and Act by taking adverse personnel action against her issue substitute opinions. after she reported in good faith a violation of law to an appropriate law enforcement authority. Tex. Appellant Vicki Ward sued appellees Lamar Gov't Code Ann. §§ 554.001, et seq. Appellees University and the Texas State University System filed a plea to the jurisdiction, seeking dismissal for retaliating against her in violation of the Texas of Ward's claims. Ward then filed an amended Whistleblower Act. Appellees filed a plea to the petition, adding a second cause of action. jurisdiction. Subsequently, Ward filed an Specifically, Ward's amended petition sought a amended petition, adding a claim for a declaratory judgment that appellees had violated declaratory judgment that appellees violated Sections 3, 3a, 8, and 19 of Article One of the several sections of the Texas Constitution. After a Texas Constitution. hearing, the trial court issued an order dismissing Ward's claims under the Whistleblower Act based Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

To support her claims, Ward alleged the following would be given a severance package to resign. He facts in her amended petition. Ward worked as an told her he was an attorney and could help "settle Associate Vice President for Finance at Lamar things" because Ward was not a "good fit." He University Beaumont. Lamar University is a part further told her that she was an employee at will. of the Texas State University System. Ward was Ward asked Gomez if he was threatening to fire responsible for Lamar's finance operations, her. He replied that he was only an attorney and including procurement. While reviewing payment could not fire anyone. He repeated his severance requests, Ward noticed suspicious financial package proposal, and Ward again asked Gomez if transactions within certain departments of he was threatening to fire her. He said "no" but Lamar. Ward reported her concerns to Lamar's reiterated that Ward was an employee at will. Police Chief, Jason Goodrich. Over the next Gomez said, "Remember, I can help you. If not, I several months, an investigation was conducted. will call HR and they will send you a letter." Ward The investigation produced a report, co-authored responded that she could not make a decision at by Ward, that documented the transactions. The that point report was forwarded to James Simmons, who was at that time President of Lamar.1 Eventually, [484 S.W.3d 445] the report was leaked to a television station, and the station began running stories concerning the and did not understand why she was being contents of the report. threatened because she was merely safeguarding Lamar. Gomez ended the conversation by saying, Ward alleged that after the report was leaked, "Well, I will be sending you a letter and Simmons "indicated he was interested in hurting contacting HR." He then hung up. It is [her] as author of the report more than he was undisputed that Ward was not terminated interested in correcting the corruption uncovered following this conversation and remains in the report." Ward lost the ability to approve employed by Lamar as Associate Vice President and review procurement documents. When she for Finance. asked Simmons about this limitation of her duties, he allegedly replied, "Stop looking at During a hearing on appellees' plea to the departments and their spending, [sic] you have jurisdiction, Ward testified that her former caused enough trouble." Ward also alleged that procurement responsibility had allowed her to she lost authority over her department. Priscilla identify the malfeasance. She also testified that Parsons was named Senior Associate Vice the number of people under her supervision had President of Finance. During a meeting, Simmons been reduced. Ward had overseen between 45 and allegedly stated that Ward had no authority in the 50 employees, but after the report was filed, Finance Department. approximately 15 people were removed from her supervision. Furthermore, Parsons ran meetings Ward alleged that she then initiated an appeal to outside Ward's presence, and Ward now had to the Chancellor of the System as well as to report to Parsons, whereas before Ward reported Simmons and Dr. Cruse Melvin, whom Simmons directly to the Vice President for Finance. Ward's had appointed as one of her superiors. No formal job title remained the same, however, and her pay grievance or appeal policy was identified by any of increased from $100,000 to $104,000. the parties, either in their pleadings or at the hearing. Because the plea to the jurisdiction was filed before Ward's amended petition, it did not Ward subsequently received a phone call from address Ward's constitutional claims. At the Fernando Gomez, the Vice Chancellor of the hearing on the plea, appellees' counsel declared System, informing her that her appeal had been that the court could dismiss the entirety of the received. During the conversation, he allegedly complaint on its own motion for failing to allege a told her "she would have to go." Gomez said Ward constitutional violation but offered to file another Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

plea addressing Ward's constitutional claims if Ranjel, 407 S.W.3d at 887. The court must take as the court desired. The court did not respond to true all evidence favorable to the nonmovant and this offer at the hearing, and no motion or plea indulge every reasonable inference and resolve seeking dismissal of those claims appears in the any doubts in the nonmovant's favor. Miranda, record. Following the hearing, the trial court 133 S.W.3d at 228. If the evidence raises a fact issued an order dismissing Ward's claims under question on jurisdiction, the trial court cannot the Texas Constitution sua sponte and granting grant the plea, and the issue must be resolved by appellees' plea to the jurisdiction as to Ward's the trier of fact. Id. at 227–28. On the other hand, claims under the Texas Whistleblower Act. This if the evidence is undisputed or fails to raise a fact appeal followed.2 question, the trial court must rule on the plea as a matter of law. Id. at 228. This standard generally ANALYSIS mirrors that of a summary judgment. Id.

I. The trial court erred in dismissing B. Applicable law Ward's whistleblower claims against Lamar but properly dismissed those Both in the trial court and on appeal, Lamar and claims against the System. the System advance several arguments to support the dismissal of Ward's whistleblower claims.3 A. Standard of review First, they contend that Ward failed to initiate a grievance procedure before filing suit as required In her first issue, Ward contends the trial court by the Whistleblower Act. On appeal, they submit erred in dismissing her claims under the Texas an appeals policy and ask that we take judicial Whistleblower Act because she presented both notice of it. Second, they contend Ward's allegations and evidence sufficient to defeat identified personnel actions are not "materially appellees' plea to the jurisdiction. If a adverse" as a matter of law. Third, they argue governmental unit has immunity from suit, a trial Ward's claims against the System fail because court lacks subject-matter jurisdiction over a suit Lamar, not the System, was her employer during against the unit. City of Houston v. Ranjel, 407 the relevant time period, and furthermore there is S.W.3d 880, 887 (Tex.App.—Houston [14th Dist.] no evidence that the System took any adverse 2013, no pet.). A challenge to a trial court's personnel action against Ward. subject-matter jurisdiction may be asserted by a plea to the jurisdiction. Tex. Dep't of Parks & The Texas Whistleblower Act provides that a Wildlife v. Miranda, 133 S.W.3d 217, 225–26 "state or local governmental entity may not (Tex.2004). We review a trial court's decision on a suspend or terminate the employment of, or take plea to the jurisdiction de novo. State Dep't of other adverse personnel action against, a public Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d employee who in good faith reports a violation of 322, 327 (Tex.2002). law by the employing governmental entity or another public employee to an appropriate law A plaintiff has the burden to allege facts enforcement authority." Tex. Gov't Code Ann. § demonstrating jurisdiction, and we construe the 554.002(a) (West 2012). A "personnel action" is pleadings liberally in the plaintiff's favor. one that affects a public employee's Miranda, 133 S.W.3d at 226. When the compensation, promotion, demotion, transfer, governmental unit challenges the existence of work assignment, or performance evaluation. Id. jurisdictional facts, and the parties submit § 554.001(3). evidence relevant to the jurisdictional challenge, we must consider that evidence when necessary to An adverse personnel action is one that "would be resolve the jurisdictional issues raised. likely to dissuade a reasonable, similarly situated worker from making a report under the Act." [484 S.W.3d 446] Montgomery County v. Park, 246 S.W.3d 610, Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

614 (Tex.2007). The supreme court has explained S. Univ., 116 S.W.3d 323, 325 (Tex.App.— that this objective materiality standard, which is Houston [14th Dist.] 2003, pet. denied). The Act, derived from federal employment law, allows however, does not dictate what actions are claims based on retaliatory actions "likely to required to "initiate" the appeals process. Moore deter" reporting of governmental violations of law v. Univ. of Houston–Clear Lake, 165 S.W.3d 97, while weeding out "petty slights" and "minor 102 (Tex.App.— Houston [14th Dist.] 2005, no annoyances." Id. The standard also bars trivial pet.) ; see City of Austin v. Ender, 30 S.W.3d 590, claims resulting from a plaintiff's unusual 594 (Tex.App.—Austin 2000, no pet.). The statute subjective feelings, while allowing claims arising also does not require the use of particular words, from the particular circumstances of the nor does it require the employee to state that his challenged action. Id. at 614–15. Nonexclusive grievance or appeal is based on the Whistleblower factors to consider in determining materiality Act. Moore, 165 S.W.3d at 102 ; Ender, 30 S.W.3d include whether the allegedly adverse personnel at 594. action negatively affected the employee's (1) prestige; (2) opportunity for advancement; (3) In the absence of a standard created by an working conditions; (4) pay or income; or (5) employee manual detailing the required contents ability to obtain outside employment. Id. at 615. of a public employee's grievance or appeal, the The presence or absence of any of these factors is notice given to an employer must provide fair not dispositive. Id. The effects of a challenged notice that the employee desires to appeal the action must be considered as a whole and in light employer's personnel decision and fair notice of of all the circumstances, and an act that would be the decision made by the employer from which immaterial in some situations is material in the employee desires to appeal. Montgomery others. Id. County Hosp. Dist. v. Smith, 181 S.W.3d 844, 850 (Tex.App.—Beaumont 2005, no pet.). By being [484 S.W.3d 447] given such a notice, the employer will be aware that its employee has appealed from its The Act waives the employing entity's immunity disciplinary decision and will know which of its from an employee's suit alleging a violation of the employment decisions are being made the subject Act. Tex. Gov't Code Ann. § 554.0035. Before of its appeal process. Id. filing suit, however, the Act requires an employee to "initiate action under the grievance or appeal C. There is a fact issue regarding whether procedures of the employing state or local Ward initiated a grievance as required by governmental entity relating to suspension or the Act. termination of employment or adverse personnel action." Id. § 554.006(a). The employee must To support their contention that Ward failed to initiate the grievance procedures within 90 days initiate the required grievance or appeal after the alleged violation occurred or was procedures before filing suit, Lamar and the discovered by the employee through reasonable System first present a policy that they contend diligence. Id. § 554.006(b). This provision affords details the steps Ward was required to take in the governmental entity an opportunity to correct order to initiate a grievance. They argue that we its errors by resolving disputes before facing may take judicial notice of the policy on appeal litigation, as the expense of litigation is borne despite their failure to introduce the policy in the ultimately by the public. Fort Bend Indep. Sch. trial court in support of their plea to the Dist. v. Rivera, 93 S.W.3d 315, 318 (Tex.App.— jurisdiction. By its express terms, however, this Houston [14th Dist.] 2002, no pet.). alleged policy does not apply to administrative staff members such as Ward. Accordingly, we An employee is not relieved of the requirement to need not decide whether this inapplicable policy initiate a grievance or appeal by the lack of a is a proper subject for judicial notice. formal procedure. Berry v. Bd. of Regents of Tex. Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

Appellees also point to an affidavit—filed with which the employee desires to appeal. Smith, 181 their plea—of Bertha Fregia, Lamar's Vice S.W.3d at 850. President for Human Resources, in which she states that Ward never filed a grievance or appeal. As noted above, Ward contended that she also Appellees contend this assertion is directed her appeal to Lamar's then-President uncontroverted evidence of the existence of a Simmons and to Dr. Cruse Melvin, who was grievance procedure and Ward's failure to operating as her direct superior at Lamar. "To the comply. But Ward's amended petition, which was extent the steps in such a [grievance or appeal] filed after appellees' plea, asserts that she procedure are unclear, as in this case, an initiated an appeal to the Chancellor of the employee's request to ranking officials of the System, Simmons, and Dr. Cruse Melvin. employer to invoke the procedure (i.e., whatever Furthermore, Ward testified about her appeal and it may be) can hardly be denied effect." Berry, 116 stated that in her appeal letter, S.W.3d at 325. For these reasons, we conclude there is a fact issue regarding whether Ward [484 S.W.3d 448] initiated an appeal before filing suit, and therefore the plea cannot be sustained based on which is not part of the record, she asked the Ward's failure to satisfy the Act's grievance Chancellor to intervene in Simmons' retaliatory requirement. acts. She argues that the complaints in her letter and the return phone call from System official D. There is a fact issue regarding whether Gomez suffice to fulfill the requirement to initiate Lamar took materially adverse personnel an appeals process before filing suit. action against Ward, but a lack of evidence that the System took such action. The record lacks information regarding the relationship between the System and Lamar, so it We next consider appellees' argument that the is unclear whether addressing an appeal to the plea was properly granted because the personnel Chancellor of the System suffices to comply with actions alleged by Ward are not materially the requirement that the employee provide notice adverse as a matter of law. In City of El Paso v. to the employer. Given that Simmons—the subject Parsons, a firefighter was transferred from his of Ward's grievance—was president of Lamar, a position at the training academy after he reported letter to the System may have been the best the fire chief's submission of false reports informal avenue available to Ward to initiate a concerning employee continuing-education grievance. See Upton County, Tex. v. Brown, 960 requirements. 353 S.W.3d 215, 221 (Tex.App.—El S.W.2d 808, 813–14 (Tex.App.—El Paso 1997, no Paso 2011, no pet.). The firefighter lost his pet.) (holding in absence of formal procedure a responsibility as training chief, and other county employee's phone call to the county firefighters were removed from his supervision. commissioner sufficed to fulfill Whistleblower Id. He retained his job title, however, and Act's requirement to initiate a grievance received pay increases. Id. The court of appeals procedure before filing suit). In any event, held the evidence legally sufficient for a jury to appellees did not offer evidence that the conclude the firefighter's transfer constituted an Chancellor is an improper recipient of a grievance adverse personnel action. Id. at 228. or appeal. Considering Ward's testimony regarding the letter to the System Chancellor and In her amended petition and testimony, Ward the phone call she received from a System official alleged that Lamar removed her procurement in response, we conclude there is some evidence responsibility, 15 people from her supervision, that appellees had fair notice of Ward's desire to and her authority over the department. While her appeal her employer's personnel decision and fair pay and job title remained the same, as Parsons notice of the decision made by the employer from shows, such factors are not dispositive. See also Harrison v. Corr. Corp. of Am., 476 Fed.Appx. Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

40, 45 (5th Cir.2012) (collecting Fifth Circuit implied threats of termination she received cases acknowledging that lateral reassignment to during the phone call with Gomez. Ward was a position with equal pay could amount to a never terminated, however. Unfulfilled threats to materially adverse action fire do not constitute actionable adverse employment decisions. Elgaghil v. Tarrant [484 S.W.3d 449] County Junior Coll., 45 S.W.3d 133, 142–43 (Tex.App.—Fort Worth 2000, pet. denied) ; see in some circumstances); Kessler v. Westchester also Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d County Dept. of Soc. Services, 461 F.3d 199, 202, 520, 531 (7th Cir.2003) ("An unfulfilled threat, 210 (2d Cir.2006) (finding a fact issue where a which results in no material harm, is not transfer stripped employee of many of his earlier materially adverse.").4 Accordingly, we hold the management responsibilities, even though the trial court properly dismissed Ward's employee was never disciplined, suspended, or whistleblower claim against the System. We written up and his salary, benefits, and hours therefore sustain Ward's first issue in part and were not decreased). Moreover, she no longer overrule it in part. reported directly to the Vice President for Finance; instead, she reported to the new Senior II. The trial court erred in dismissing sua Associate Vice President, an individual with no sponte Ward's free speech retaliation previous finance experience. Such an action is claim against Lamar, but it properly some evidence that she lost job prestige. See Gray dismissed that claim against the System. v. City of Galveston, No. 14–12–00183–CV, 2013 WL 2247386, at *9 (Tex.App.—Houston [14th In her second issue, Ward contends the trial court Dist.] May 21, 2013, no pet.) (holding appellant's erred in dismissing sua sponte her free speech reassignment from a "command position" to an retaliation claim under the Declaratory "investigative position," where he reported to an Judgments Act and the Texas Constitution officer with a lower rank and no longer served as a because no ground existed for dismissal. As noted "direct report" to the Chief of Police, supported a above, Ward amended her petition after Lamar conclusion that appellant was transferred to a less and the System filed their plea to the jurisdiction. prestigious position). Ward's amended petition added allegations that, among other things, both Lamar and the System Moreover, Ward testified that she lost her retaliated against her for exercising her right to procurement duties, which were the duties that free speech under the Texas Constitution. had allowed her to discover the transactions she Invoking the Declaratory Judgments Act, Ward reported. Removing the very authority that sought a declaration that appellees violated allowed a whistleblower to find wrongdoing in the Article I, Section 8 of the Texas Constitution, as first place is some evidence of an action that well would likely dissuade a reasonable, similarly situated worker from making a report under the [484 S.W.3d 450] Act. See Park, 246 S.W.3d at 614–15. Under the circumstances, taking all of Ward's allegations as as an injunction requiring appellees to restore her true, we hold the pleadings and testimony were former job duties and refrain from violating her sufficient to raise a fact question as to whether constitutional rights and retaliating against her. she suffered adverse employment actions at the Ward also alleged that appellees violated Article I, hands of Lamar. Miranda, 133 S.W.3d at 227–28. Sections 3, 3a, and 19 of the Texas Constitution, The trial court thus erred in dismissing Ward's which guarantee equal rights, equality based on whistleblower claims against Lamar. sex, and due course of law.

With respect to the System, however, the only The Texas Constitution's Bill of Rights includes adverse employment actions Ward alleges are the the following provision: Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

Every person shall be at liberty to Lamar and the System argue for the first time on speak, write or publish his opinions rehearing that Ward's free speech retaliation on any subject, being responsible for claim under the Declaratory Judgments Act and the abuse of that privilege; and no the Texas Constitution became moot because she law shall ever be passed curtailing resigned her position at Lamar after the trial the liberty of speech or of the press. court's dismissal but before any party filed a brief In prosecutions for the publication in this case. None of the parties mentioned a of papers, investigating the conduct resignation in their briefs, and no resignation is of officers, or men in public included in our record. Appellees attached a copy capacity, or when the matter of a resignation letter to their motion for published is proper for public rehearing. information, the truth thereof may be given in evidence. And in all Although issues implicating our jurisdiction indictments for libels, the jury shall generally may not be waived by failing to raise have the right to determine the law them promptly, we take this opportunity to and the facts, under the direction of emphasize that such issues should always be the court, as in other cases. brought to the court's attention at the earliest possible time. Any other practice would waste Tex. Const. art. I, § 8. Because this provision party and court resources and would create expressly guarantees an affirmative right to opportunities for unfairness and manipulation. speak, the supreme court has held that it provides No party should feel free to gamble on winning a greater rights than the First Amendment to the favorable ruling on the merits while concealing a Constitution of the United States in the context of jurisdictional flaw or holding a jurisdictional prior restraints on speech, though it has not trump card to play in the event of a loss. See Tex. extended that holding to other contexts. Compare Disciplinary Rules Prof'l Conduct R. 3.01–3.04, Davenport v. Garcia, 834 S.W.2d 4, 8–9 reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, (Tex.1992), with Tex. Dep't of Transp. v. Barber, app. A (West Supp.2015) (Tex. State Bar R. art. X, 111 S.W.3d 86, 106 (Tex.2003), and Commission § 9). for Lawyer Discipline v. Benton, 980 S.W.2d 425, 434 (Tex.1998). Ward argues that we may not consider the resignation letter because it is not in our record. The trial court dismissed Ward's claims under the But appellate courts have a duty to assess their Declaratory Judgments Act and the Texas own jurisdiction sua sponte, Constitution "[o]n its own motion," stating that Ward's petition "fail[s] to articulate facts which, if [484 S.W.3d 451] believed, would support such a claim." Ward argues that no legal grounds existed for the M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 dismissal. We agree as to her free speech (Tex.2004), and we may ascertain facts necessary retaliation claim against Lamar but disagree as to to the exercise of our jurisdiction. Tex. Gov't Code her free speech retaliation claim against the § 22.220(c) (West Supp.2015) ("Each court of System. On rehearing, Ward disavows any appeals may, on affidavit or otherwise, as the intention to seek reversal of the trial court's order court may determine, ascertain the matters of fact dismissing her other constitutional claims. that are necessary to the proper exercise of its Accordingly, we do not address those claims. jurisdiction."). Texas Rule of Appellate Procedure 10.2 provides the mechanism for ascertaining A. Ward's free speech retaliation claim is jurisdictional facts when—as here—they are not in not moot. the record and not within the court's knowledge in its official capacity. Under that rule, the attorney signing the motion may state the fact if it Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

is within his personal knowledge; otherwise, the 450 S.W.3d 203, 218–223 (Tex.App.—Houston motion "must be supported by affidavit or other [14th Dist.] 2014, pet. denied) (holding a party satisfactory evidence." Tex. R.App. P. 10.2. Here, could seek fees where trial court lacked there is no indication that the attorney who filed jurisdiction over opposing party's declaratory appellees' motion for rehearing (as well as claim from its inception). appellees' brief) had personal knowledge of Ward's resignation, and appellees' motion for In Hallman, the supreme court held that a rehearing includes no affidavit substantiating declaratory judgment suit regarding an insurer's Ward's resignation or authenticating the letter.5 duty to defend did not become moot on appeal when the insurer provided the requested defense We need not decide whether appellees' failure to because there was still a live dispute over the comply with Rule 10.2 dooms their mootness insured's entitlement to attorney's fees under the argument, however, because that argument fails Declaratory Judgments Act. 159 S.W.3d at 642– even if the resignation letter is considered. 43. The trial court had ruled that the insurer had Appellees argue that Ward's resignation moots no duty to defend, and the her free speech retaliation claim seeking declaratory and injunctive relief because Ward's [484 S.W.3d 452] requested injunctive relief is no longer available. See Robinson v. Alief Indep. Sch. Dist., 298 supreme court explained that a different answer S.W.3d 321, 324 (Tex.App.—Houston [14th Dist.] on that merits question would require a remand 2009, pet. denied) ("The mootness doctrine for the trial court to reconsider whether an award precludes a court from rendering an advisory of fees to the insured was appropriate. Id. at 643. opinion in a case where there is no live Similarly, the trial court dismissed Ward's free controversy."). Ward counters that her speech retaliation claim in this case, and Ward declaratory claim is not moot because she sought apparently resigned thereafter. If Ward is correct attorney's fees, and a party need not prevail to that this dismissal was erroneous, then further recover attorney's fees under the Declaratory proceedings may show that an award of attorney's Judgments Act. See Tex. Civ. Prac. & Rem. Code fees is appropriate under the Declaratory Ann. § 37.009 (West 2015) ("In any proceeding Judgments Act.6 Accordingly, as in Hallman, we under this chapter, the court may award costs and address the merits of the free speech retaliation reasonable and necessary attorney's fees as are dispute. See id.7 equitable and just."). B. Appellees offered no viable ground for We agree that Ward's claim is not moot because dismissing Ward's free speech retaliation she sought attorney's fees under the Declaratory claim against Lamar. Judgments Act. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex.2005) (citing Although the trial court stated the ground for its Camarena v. Tex. Emp't Comm'n, 754 S.W.2d ruling dismissing Ward's free speech retaliation 149, 151 (Tex.1988) ); Hansen v. JP Morgan claim, we may consider in the interest of judicial Chase Bank, N.A., 346 S.W.3d 769, 773–75 economy other grounds for dismissal that were (Tex.App.—Dallas 2011, no pet.) ("[A] case under preserved for review.8 As discussed in Part I of the Declaratory Judgments Act remains a live this opinion, one of the grounds for dismissal controversy, even if all requests for substantive raised in appellees' plea was that Ward did not declaratory relief become moot during the suffer an adverse employment action. Thus, we action's pendency, as long as a claim for consider whether this ground could also provide a attorneys' fees under the Act remains pending."); basis for dismissing Ward's free speech retaliation Labrado v. County of El Paso, 132 S.W.3d 581, claim. See City of Dallas v. Turley, 316 S.W.3d 589–591 (Tex.App.—El Paso 2004, no pet.) ; cf. 762, 774 (Tex.App.—Dallas 2010, pet. denied) Devon Energy Prod. Co. v. KCS Resources, LLC, (analyzing whether grounds raised in plea to Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

jurisdiction supported dismissal of claims added In the absence of such authority, courts should in amended petition filed after plea). rely on the adversary system of justice, which depends on the parties to frame the issues for [484 S.W.3d 453] decision and assigns to courts the role of neutral arbiter of the matters that the parties present. In their briefs on appeal, both parties look to Greenlaw v. United States, 554 U.S. 237, 243, 128 federal decisions addressing the elements of a S.Ct. 2559, 171 L.Ed.2d 399 (2008).10 One First Amendment retaliation claim for guidance rationale for this system is that the parties and on the elements of Ward's free speech retaliation their counsel usually know far better than the claim under the Texas Constitution. One of those courts what is best for them, so they are federal elements is an adverse employment responsible for advancing the facts and decision. See, e.g., Juarez v. Aguilar, 666 F.3d arguments entitling them 325, 332 (5th Cir.2011). Because the parties have not argued that the elements of the claim differ [484 S.W.3d 454] under the Texas Constitution, we will analyze Ward's claim using the federal requirement of an to relief. Id. at 244, 128 S.Ct. 2559.11 Resolving adverse employment decision. See Price v. Tex. disputes only on grounds raised by the parties Alcoholic Beverage Comm'n, No. 01–12–1164– also serves judicial economy,12 keeps courts CV, 2014 WL 3408696, at *5 (Tex.App.—Houston within their constitutionally assigned role as [1st Dist.] July 10, 2014, pet. denied) (mem.op.). impartial and "neutral arbiter[s]," id. at 243, 128 S.Ct. 2559,13 and enables courts to make well- As we explained in Part I, the pleadings and informed decisions based on full adversary testimony are sufficient to raise a fact question presentation and testing of the arguments on regarding whether Ward suffered an adverse either side of the issue at hand. employment decision at the hands of Lamar, but Ward has not alleged any actionable adverse The parties have not addressed—either in the trial employment decision by the System. Accordingly, court or on appeal—whether Texas courts we affirm the trial court's dismissal of Ward's free recognize a claim under the Texas Constitution to speech retaliation claim against the System under enjoin an adverse employment action taken in the Declaratory Judgments Act and Article I, retaliation for the exercise of free speech rights, Section 8 of the Texas Constitution. nor have they addressed whether appellees are immune from suit on such a claim.14 The trial Because appellees' plea to the jurisdiction does court should have allowed the parties to develop not support dismissal of Ward's first amendment these issues through the adversary process; it retaliation claim against Lamar, we next examine erred by dismissing Ward's free speech retaliation the trial court's stated non-jurisdictional reason claim against Lamar without a legal basis for for dismissing that claim. The trial court's order doing so. We sustain Ward's second issue in part specifies that the dismissal of Ward's and reverse the trial court's dismissal of her free constitutional claims was for failure to plead facts speech retaliation claim against Lamar under the supporting the claims.9 But there was no motion Declaratory Judgments Act and Article I, Section or other procedural vehicle available to the trial 8 of the Texas Constitution. court authorizing it to dismiss these claims, and neither the trial court nor appellees identify any CONCLUSION authority for dismissing a claim sua sponte on this basis. Cf. Tex.R.App. P. 91a.1 (requiring For the foregoing reasons, we affirm the trial motion to dismiss cause of action on the grounds court's dismissal of Ward's whistleblower claims that it has no basis in law or fact). and her free speech retaliation

[484 S.W.3d 455] Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

claim against the Texas State University System, Ward nor the Lamar Parties notified this court of reverse the trial court's dismissal of Ward's Ward's resignation until seventeen months later, whistleblower claims and her free speech when the Lamar Parties moved for rehearing, retaliation claim against Lamar University, and after the parties had filed their appellate briefs remand the case to the trial court for further and this court had issued its opinion on original proceedings consistent with this opinion. submission. The Lamar Parties attached to their rehearing motion a copy of Ward's resignation (Frost, C.J., dissenting). letter. In response, Ward admits that this document is her letter of resignation. Yet, Ward SUBSTITUTE DISSENTING OPINION asserts that this letter cannot serve as the basis of this court's decision because the resignation letter Kem Thompson Frost, Chief Justice was not presented to the trial court and is not part of the clerk's record or reporter's record in this I respectfully dissent. appeal. Ward's complaints lack merit because this court may consider matters not submitted to the Appellant Vicki Ward filed various claims relating trial court and not contained in the clerk's record to her alleged employment at both appellee or reporter's record for the purpose of Lamar University and appellee Texas State determining whether this court has lost University System (collectively the "Lamar jurisdiction because an issue has become moot.2 Parties"). Shortly after perfecting this appeal, Though it would have been better for the Lamar Ward resigned her employment. This resignation Parties to have submitted an affidavit or other renders moot Ward's claims for injunctive and evidence declaratory relief against the Lamar Parties based on alleged workplace retaliation against Ward for [484 S.W.3d 456] exercising her free-speech rights. Therefore, this court should vacate the trial court's judgment and establishing Ward's resignation, Ward has dismiss this appeal as to these free-speech admitted that this document is her resignation retaliation claims rather than addressing the letter, and based on this admission, this court merits of Ward's appeal as to these claims. may conclude that Ward has resigned and is no longer employed by the Lamar Parties. Ward's resignation moots her claims for declaratory and injunctive relief regarding Because Ward has resigned her employment, alleged retaliation against her for there is no longer any threat that Ward will suffer exercising her free-speech rights. adverse personnel actions in retaliation for her exercise of her free-speech rights under the Texas In her live pleading in the trial court, Ward Constitution. Unlike the remedies Ward seeks for alleged both Lamar Parties employed her. Ward her claims under the Texas Whistleblower Act, asserted various claims against the Lamar Parties, which contains a waiver of governmental including claims under the Texas Whistleblower immunity, Ward does not seek money damages Act, and claims for declaratory and injunctive based on the alleged adverse personnel actions in relief based on alleged adverse personnel actions retaliation for Ward's exercising her free-speech by the Lamar Parties against Ward in retaliation rights. Rather, Ward seeks only declaratory and for exercising her free-speech rights under the injunctive relief. Ward asserts that these claims Texas Constitution.1 are not moot because Ward sought attorney's fees under the Declaratory Judgments Act and this Less than two months after Ward perfected this request for fees "breathes life" into her claims for appeal from the trial court's order dismissing all declaratory and injunctive relief under Allstate of her claims against the Lamar Parties, Ward Insurance Company v. Hallman.3 resigned her employment. Nonetheless, neither Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

In Hallman, an insured and her insurer filed [484 S.W.3d 457] claims against each other seeking declaratory relief on the issue of whether the insurer had a Ward's request in the trial court for attorney's fees duty to defend and indemnify the insured.4 Both under the Declaratory Judgments Act does not parties sought attorney's fees under the preclude her claims for declaratory and injunctive Declaratory Judgments Act.5 On cross-motions relief regarding her free-speech rights from for summary judgment, the trial court granted the becoming moot.10 Thus, Ward's claims against the insurer's motion, denied the insured's motion, Lamar Parties for declaratory and injunctive relief denied each party's attorney's-fee request, and based on alleged free-speech retaliation have rendered a final judgment.6 On appeal, the become moot.11 insured challenged the trial court's denial of her attorney's-fee request, and the court of appeals The majority should not equate a failure to reversed the summary judgment, concluding that prove Ward's resignation with a potential the trial court should have granted the insured's remand under the Hallman case. motion regarding the coverage issue and that the case should be remanded for the trial court to The majority concludes that it need not decide determine whether to grant the insured's request whether the Lamar Parties have proved that Ward for attorney's fees.7 While the case was pending in resigned her employment because any resignation the Supreme Court of Texas, the coverage issues by Ward would not moot the claims in question that were the subject of the declaratory relief under the Hallman case.12 Even if the Hallman became moot.8 Nonetheless, the high court case did apply, this court still would have to concluded that the appeal had not become moot determine whether Ward resigned her because there remained a live controversy as to employment because the scope of remand would whether the insurer should be ordered to pay the be different as to Ward's claims against Lamar insured's attorney's fees and because the high University. If Ward has not resigned or if the court needed to resolve the coverage issue to Lamar Parties have not sufficiently established determine whether the case should be remanded this resignation, then, under the majority's to the trial court for reconsideration of the fee analysis, this court should be reversing the trial request, as the insured requested on appeal and [484 S.W.3d 458] as the court of appeals ordered.9

court's order as to the claims against Lamar In Ward's case, the trial court did not rule on University for declaratory and injunctive relief summary-judgment motions; instead, it granted based on alleged free-speech retaliation and the Lamar Parties' jurisdictional plea and remanding generally for further proceedings dismissed all of Ward's claims. Ward first pleaded because neither the requests for declaratory and her claims for declaratory and injunctive relief injunctive relief nor the related attorney's fee two days before the trial court conducted a request would be moot.13 On the other hand, if hearing on the Lamar Parties' plea to the this court determines that Ward has resigned, jurisdiction and two days before the trial court even if Hallman applies, the only issue to be rendered a final order dismissing all of Ward's determined on remand would be whether the trial claims. Within three months, Ward had resigned court would like to exercise its discretion to award her employment, before any of the appellate attorney's fees under the Declaratory Judgments briefs were filed in this case. Unlike the Hallman Act in light of the new circumstance that its scenario, when Ward filed her appellate brief, she dismissal of those claims has been determined on did not challenge the trial court's dismissal of her appeal to have been erroneous.14 Therefore, this request for attorney's fees under the Declaratory court should decide whether Ward has resigned Judgments Act. On this record, Hallman is not on her employment.15 point and Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

According to the majority, Ward has not admitted under Hallman, the only further proceedings that the document attached to the rehearing regarding this claim against Lamar University motion is her resignation letter.16 Because the that are not moot is a remand for the trial court to Lamar Parties have not proved up the resignation determine whether to exercise its discretion to letter or otherwise submitted evidence of Ward's award attorney's fees under the Declaratory resignation, without such an admission, this court Judgments Act in light of the new circumstance would have no basis to conclude that Ward that this court has determined the trial court resigned her employment.17 In that event, under erred in dismissing this claim.22 Rather than the majority's analysis, this court would be recognize the limited nature of this remand, the reversing the trial court's order as to the claims majority holds that Ward's free-speech retaliation against Lamar University for declaratory and claim is not moot and generally remands for injunctive relief based on alleged free-speech further proceedings on this claim against Lamar retaliation and remanding generally for further University. The majority thus incorrectly proceedings on the merits because neither the concludes that, under Hallman, because Ward requests for declaratory and injunctive relief nor requested attorney's fees under the Texas the related attorney's-fee request would be Declaratory Judgments Act, there remains a live moot.18 According to the majority, even though controversy as to Ward's entitlement on remand Ward has not admitted that the document is her to declaratory and injunctive relief against Lamar resignation letter, this court need not address University based on alleged free-speech whether the Lamar Parties have proved that Ward retaliation.23 resigned because the outcome of the mootness inquiry is the same whether or not Ward is In deciding cases, the appellate court has an employed by the Lamar Parties.19 Because the obligation to the trial court and to the litigants to answer to the mootness inquiry differs depending state clearly the action taken. When remanding on Ward's employment status, and because the for the trial court to undertake further majority concludes Ward has not admitted that consideration of the case, the appellate court the document is her resignation letter, this court should set forth what is expected. Yet, the must determine whether the Lamar Parties have majority takes the unusual posture that it need proved that Ward has resigned her employment.20 not specify what proceedings on remand would be consistent with the majority opinion. The reason The majority should clarify what the majority gives for not doing so is that the proceedings the trial court should conduct parties did not brief the on remand regarding the free-speech- retaliation claims against Lamar [484 S.W.3d 459] University. issue.24 This court's duty to render the correct The majority reverses the trial court's dismissal judgment does not turn on the parties' briefing.25 order as to the claims against Lamar University But, even if it did, the parties briefed the for declaratory and injunctive relief based on mootness issue, and answering this question is alleged free-speech retaliation and remands for necessary to determine the mootness issue.26 further proceedings consistent with the majority opinion. The majority concludes that, under Because the majority does not address what Hallman,"Ward's claim is not moot because she further proceedings the trial court should sought attorney's fees under the Declaratory conduct, it may not be clear to the trial court Judgments Act" and because, if the trial court whether this court has concluded that a live erred in dismissing Ward's free-speech retaliation controversy remains as to whether, on remand, claim, "then further proceedings may show that Ward is entitled to declaratory and injunctive an award of attorney's fees is appropriate under relief against Lamar University based on alleged the Declaratory Judgments Act."21 But, even free-speech retaliation. The parties and the trial Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

court might have questions about what is otherwise would have been inconsistent with that expected based on today's decision: court's precedent. See Tex. R. App. P. 41.3

• May the trial court allow discovery 3 Because the plea to the jurisdiction did not on Ward's moot requests for challenge other elements of a whistleblower declaratory and injunctive relief claim, such as Ward's status a public employee because the merits of these claims who in good faith reported a violation of law, the need to be determined so that the status of Lamar and the System as governmental trial court may decide whether an entities, or the existence of a causal link between award of attorney's fees under the the report of illegal conduct and the identified Declaratory Judgments Act is personnel actions (see City of Fort Worth v. appropriate? Zimlich, 29 S.W.3d 62, 67 (Tex.2000) ), we do not address those issues. • May the trial court consider any 4 Because Ward failed to allege an adverse summary-judgment motions filed employment action committed by the System, we regarding these moot requests? need not consider appellees' argument that the Texas Whistleblower Act does not apply to the • May the trial court conduct a trial System because it was not the employing entity. on any fact issues regarding these moot requests so that the court may 5 Our dissenting colleague contends that we determine whether an award of should consider the letter because Ward admits attorney's fees under the its authenticity in her response to appellees' Declaratory Judgments Act is motion for rehearing. But Ward's response states appropriate? in part that the letter "purports to be Ward's resignation." Considering Ward's response as a The majority's failure to address these matters whole, we disagree that it includes an unequivocal leaves uncertainty as to how this court has admission that the letter is authentic. resolved the mootness issue. The need for clarity and precision on this point comes into sharper 6 Our dissenting colleague contends that we focus when considering the potential costs and should be very specific regarding the nature of the delays the lack of it might spawn. Speaking clearly proceedings to be conducted on remand, and she now might curtail litigation expenses, conserve argues that those proceedings should have a judicial resources, and enhance efficiency. particular scope. Post, at 457–58. But the parties have neither addressed this issue nor made any -------- such arguments. Thus, for the same reasons discussed in Part II.B. below, we leave this issue Notes: for the trial court to resolve in the first instance in 1 Simmons is no longer President of Lamar, light of the parties' adversary presentation and though he remains employed by Lamar as a testing and proper introduction of any relevant tenured professor. evidence.

2 Pursuant to its docket-equalization powers, the 7 Our dissenting colleague contends that Hallman

Supreme Court of Texas transferred this appeal is not on point because Ward is not appealing the from the Ninth Court of Appeals to this Court. See denial of a motion for summary judgment seeking Tex. Gov't Code Ann. § 73.001 (West 2013). We attorneys' fees, and she cites our sister court's must decide this case in accordance with the decision in Tesco Corporation v. Steadfast precedent of the Ninth Court of Appeals under Insurance Company, No. 01–13–91–CV, ––– principles of stare decisis if our decision S.W.3d ––––, 2015 WL 456466 (Tex.App.— Houston [1st Dist.] Feb. 3, 2015, pet. filed). We Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

disagree that this factual difference provides a not the same as a failure of jurisdiction. E.g., basis for distinguishing Hallman or any of the Dubai Petrol. Co. v. Kazi, 12 S.W.3d 71, 75–77 other cases cited above. In Tesco, the parties filed (Tex.2000). The trial court did not say that the motions for summary judgment, but Tesco's petition failed to allege facts demonstrating the motion was only partial and did not address the court's subject-matter jurisdiction, nor did it say attorneys' fees it had requested in its petition. Id. why any such failure could not be remedied by at ––––, 2015 WL 456466 at *1. After the trial affording Ward an opportunity to amend. Cf. court granted its opponent's motion for summary Miranda, 133 S.W.3d at 226–27. judgment, Tesco did not attack the denial of 10 See also United States v. Burke, 504 U.S. 229, attorney's fees in its appellate brief. Id. at ––––, 2015 WL 456466 at *4. For these reasons, the 246, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992) (Scalia, First Court held there was no live issue regarding J., concurring in the judgment) ("The rule that attorney's fees. Id. In contrast, Ward had no points not argued will not be considered is more opportunity to file a motion for summary than just a prudential rule of convenience; its judgment in this case because the trial court observance, at least in the vast majority of cases, dismissed her free speech retaliation claim distinguishes our adversary system from the seeking declaratory and injunctive relief sua inquisitorial one"); McNeil v. Wisconsin, 501 U.S. sponte on the pleadings. Ward's brief devotes an 171, 181 n. 2, 111 S.Ct. 2204, 115 L.Ed.2d 158 issue and an entire section of argument to (1991) ("What makes a system [of justice] attacking the dismissal of this claim, and we see adversarial rather than inquisitorial is ... the no reason why this global challenge should not presence of a judge who does not (as an inquisitor include a challenge to the dismissal of her request does) conduct the factual and legal investigation for attorney's fees based on this claim. See Tex. R. himself, but instead decides on the basis of facts App. P. 38.1(f) ; Perry v. Cohen, 272 S.W.3d 585, and arguments pro and con adduced by the 587 (Tex.2008). parties.").

11 See also Castro v. United States, 540 U.S. 375, 8 Cf. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d

623, 626 (Tex.1996) (holding in summary 386, 124 S.Ct. 786, 157 L.Ed.2d 778 (Scalia, J., judgment context that appellate court "may concurring in part and concurring in judgment); consider other grounds that the movant preserved Dennis v. United States, 384 U.S. 855, 875, 86 for review and trial court did not rule on in the S.Ct. 1840, 16 L.Ed.2d 973 (1966) ("In our interest of judicial economy"); City of Mont adversary system, it is enough for judges to judge. Belvieu v. Enter. Products Operating, LP, 222 The determination of what may be useful to [a S.W.3d 515, 519 (Tex.App.—Houston [14th Dist.] party] can properly and effectively be made only 2007, no pet.) (limiting appellate review of order by an advocate"). sustaining plea to jurisdiction to matters 12 See Martinez v. State, 91 S.W.3d 331, 336 n. 12 presented to trial court); Britton v. Tex. Dep't of (Tex.Crim.App.2002). Crim. Justice, 95 S.W.3d 676, 681 (Tex.App.— Houston [1st Dist.] 2002, no pet.) (looking to 13 See also Greenlaw, 554 U.S. at 244, 128 S.Ct. summary judgment practice for guidance in 2559 (" ‘[Courts] do not, or should not, sally forth reviewing pleas to jurisdiction based on multiple each day looking for wrongs to right. We wait for grounds). the cases to come to us, and when they do we normally decide only questions presented by the 9 Specifically, the trial court stated that the parties.’ " (quoting United States v. Samuels, 808 "claims under the Texas Constitution contained in F.2d 1298, 1301 (8th Cir.1987) (R. Arnold, J., the Amended Petition fail to articulate facts concurring in denial of reh'g en banc)); Smith v. which, if believed, would support such a claim." Horn, 120 F.3d 400, 409 (3d Cir.1997) In other words, the trial court concluded that (explaining that when courts decide cases on Ward's petition failed to state a claim, which is grounds they raise sua sponte, they "come Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

dangerously close to acting as advocates for [a law shall ever be passed curtailing the liberty of party] rather than as impartial magistrates"). The speech or of the press"). Due Process Clause of the Federal Constitution 2 Tex. Gov't Code § 22.220(c) (West Supp. 2015) and the Due Course of Law Clause of the Texas Constitution require judges to be neutral and ("Each court of appeals may, on affidavit or detached. U.S. Const. amend. V ; Tex. Const. art. otherwise, as the court may determine, ascertain I, § 19 ; Tex. Const. art. I, § 13 ; see Concrete Pipe the matters of fact that are necessary to the & Prods. of Cal., Inc. v. Constr. Laborers Pension proper exercise of its jurisdiction."); Waco Indep. Trust, 508 U.S. 602, 617–18, 113 S.Ct. 2264, 124 Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 L.Ed.2d 539 (1993) ; Earley v. State, 855 S.W.2d (Tex.2000) ; In re C.M.D., 287 S.W.3d 510, 513– 260, 262 (Tex.App.—Corpus Christi 1993, no 14 (Tex.App.—Houston [14th Dist.] 2009, no pet.). pet.).

3 See 159 S.W.3d 640, 642–43 (Tex.2005). 14 We are aware that courts have allowed public

employees to sue their employers for damages 4 See id. at 641. under 42 U.S.C. § 1983 when the employees suffer adverse employment consequences for exercising 5 See id. their First Amendment right to speak on matters of public concern. E.g., Connick v. Myers, 461 6 See id. at 642.

U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ; 7 See id. Baker v. Gregg County, 33 S.W.3d 72, 79 (Tex.App.—Texarkana 2000, pet. dism'd). But 8 See id. Ward has not sued under section 1983, Texas has no comparable state statute, and there is no 9 See id. at 642–43. implied private right of action for damages arising under the free speech provision of the Texas 10 See Tesco Corp. v. Steadfast Ins. Co., No. 01–

Constitution. See City of Beaumont v. Bouillion, 13–00091–CV, ––– S.W.3d ––––, –––– – –––– 896 S.W.2d 143, 147 (Tex.1995). The trial court , 2015 WL 456466, at *3–4 (Tex.App.—Houston and the parties have not addressed whether [1st Dist.] Feb. 3, 2015, pet. filed) (mem. op.). injunctive relief is available in this circumstance 11 See id. to remedy violations of the Texas Constitution, cf. City of Elsa v. M.A.L., 226 S.W.3d 390, 392 12 See ante at 451–52. (Tex.2007) (per curiam), or whether appellees' sovereign immunity is waived in this 13 As to the claims against the Texas State circumstance under the Declaratory Judgments University System for declaratory and injunctive Act. Cf. City of El Paso v. Heinrich, 284 S.W.3d relief based on alleged adverse personnel actions 366, 372–73 (Tex.2009) ("[Under the Declaratory in retaliation for Ward's exercise of her free- Judgments Act], the governmental entities speech rights, the majority affirms the trial court's themselves—as opposed to their officers in their dismissal order. official capacity—remain immune from suit."). We therefore do not decide those questions here. 14 See Hallman, 159 S.W.3d at 642–43 ; AVE, Inc.

v. Comal County, No. 03–05–00183–CV, 2008 1 See Tex. Gov't Code Ann. § 554.001, et seq. WL 2065857, at *3–4 (Tex.App.—Austin May 14, (West 2012); Tex. Const. art. I, § 8 (West, 2008, no pet.) (holding that issues as to whether Westlaw through 2015 R.S.) (providing that declaratory relief should be granted had become "[e]very person shall be at liberty to speak, write moot and would be dismissed for lack of or publish his opinions on any subject, being jurisdiction, but that, under Hallman, the entire responsible for the abuse of that privilege; and no appeal was not moot because there still was a live controversy as to whether appellee was entitled to Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App. 2016)

recover attorney's fees under the Declaratory Judgments Act and therefore issues regarding attorney's fees were not moot and would be decided) (mem. op.).

15 See Hallman, 159 S.W.3d at 642–43 ; AVE, Inc.,

2008 WL 2065857, at *3–4.

16 See ante at 451, n. 5.

17 See id. Given the jurisdictional nature of the mootness inquiry, the Lamar Parties still would be free to submit additional proof that Ward has resigned her employment in a subsequent filing in this appeal.

18See Hallman, 159 S.W.3d at 642–43 ; AVE, Inc., 2008 WL 2065857, at *3–4.

19 See 451–52.

20 Seeante at 451–52; Hallman, 159 S.W.3d at 642–43 ; AVE, Inc., 2008 WL 2065857, at *3–4.

21 Ante at 451–52;

22 See Hallman, 159 S.W.3d at 642–43 ; AVE, Inc., 2008 WL 2065857, at *3–4.

23 See AVE, Inc., 2008 WL 2065857, at *3–4.

24 See ante at 451–52, n. 6.

25 See Garza v. Cantu, 431 S.W.3d 96, 108–10 (Tex.App.—Houston [14th Dist.] 2013, pet. denied) (remanding case to the trial court for a new trial because that was the proper appellate disposition based on the appellant's meritorious issue, even though appellant did not brief or request a remand for a new trial).

26 See AVE, Inc., 2008 WL 2065857, at *3–4.

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