IN THE SUPREME COURT OF TEXAS
════════════
No. 03-0827
The University of Texas
Medical Branch at Galveston
d/b/a John Sealy Hospital ("UTMB"),
Petitioner,
v.
Kevin Barrett, M.D.,
Respondent
════════════════════════════════════════════════════
On Petition for Review from
the
Court of Appeals for the Fourteenth District
of Texas
PER CURIAM
Justice Brister did not participate in
the decision.
We previously
denied the petition for review in this case. In its motion for rehearing, petitioner
urges us to resolve the conflict in the courts of appeals over the single issue
here presented. We agree that the
conflict should be resolved and grant the motion for rehearing to do so.
Before suing
under the Texas Whistleblower Act,
a public employee must timely initiate his employer’s grievance or appeal
procedures relating to employee discipline. Then, as section 554.006(d) states:
If a final decision is not rendered before the 61st day after
the date [such] procedures are initiated . . . , the employee may
elect to:
(1) exhaust the
applicable procedures . . . , in which event the employee must
sue not later than the 30th day after the date those procedures are exhausted to
obtain relief under this chapter; or
(2) terminate
procedures . . . , in which event the employee must sue within
the time remaining under Section 554.005 to obtain relief under this
chapter.
Dr. Kevin
Barrett sued his former employer, the University of Texas Medical Branch at
Galveston, only 27 days after initiating grievance procedures complaining of the
termination of his employment. UTMB
filed a plea to the jurisdiction, asserting that Barrett’s failure to wait 60
days before suing deprived the trial court of jurisdiction over his action. The trial court denied the plea, and a
divided court of appeals, sitting en banc, affirmed. We agree that the plea was properly
denied.
Section
554.006 does not require that grievance or appeal procedures be exhausted before
suit can be filed; rather, it requires that such procedures be timely initiated
and that the grievance or appeal authority have 60 days in which to render a
final decision. We need not decide
here whether the failure to meet these requirements deprives the court of
jurisdiction over the action.
Whether the purpose of the requirements is, as the court of appeals
concluded, to allow an opportunity for resolution of disputes before going to
court, or instead, as UTMB argues, to deny a court jurisdiction over an action
unless the requirements have been satisfied, the purpose is adequately protected
by abating a prematurely filed action until the end of the 60-day period,
provided that the procedures have been timely initiated and can continue for the
required 60 days or until a final decision is rendered, whichever occurs
first. To the extent other cases have
suggested
or held
to the contrary, we disapprove them.
Accordingly,
we grant petitioner’s motion for rehearing, grant the petition for review,
and without hearing oral argument,
affirm the judgment of the court of appeals.
Opinion
delivered: March 11, 2005
IN THE SUPREME COURT OF TEXAS
IN THE SUPREME COURT OF TEXAS
════════════
No. 03-0827
The University of Texas
Medical Branch at Galveston
d/b/a John Sealy Hospital ("UTMB"),
Petitioner,
v.
Kevin Barrett, M.D.,
Respondent
════════════════════════════════════════════════════
On Petition for Review from
the
Court of Appeals for the Fourteenth District
of Texas
PER CURIAM
Justice Brister did not participate in
the decision.
We previously
denied the petition for review in this case. In its motion for rehearing, petitioner
urges us to resolve the conflict in the courts of appeals over the single issue
here presented. We agree that the
conflict should be resolved and grant the motion for rehearing to do so.
Before suing
under the Texas Whistleblower Act,
a public employee must timely initiate his employer’s grievance or appeal
procedures relating to employee discipline. Then, as section 554.006(d) states:
If a final decision is not rendered before the 61st day after
the date [such] procedures are initiated . . . , the employee may
elect to:
(1) exhaust the
applicable procedures . . . , in which event the employee must
sue not later than the 30th day after the date those procedures are exhausted to
obtain relief under this chapter; or
(2) terminate
procedures . . . , in which event the employee must sue within
the time remaining under Section 554.005 to obtain relief under this
chapter.
Dr. Kevin
Barrett sued his former employer, the University of Texas Medical Branch at
Galveston, only 27 days after initiating grievance procedures complaining of the
termination of his employment. UTMB
filed a plea to the jurisdiction, asserting that Barrett’s failure to wait 60
days before suing deprived the trial court of jurisdiction over his action. The trial court denied the plea, and a
divided court of appeals, sitting en banc, affirmed. We agree that the plea was properly
denied.
Section
554.006 does not require that grievance or appeal procedures be exhausted before
suit can be filed; rather, it requires that such procedures be timely initiated
and that the grievance or appeal authority have 60 days in which to render a
final decision. We need not decide
here whether the failure to meet these requirements deprives the court of
jurisdiction over the action.
Whether the purpose of the requirements is, as the court of appeals
concluded, to allow an opportunity for resolution of disputes before going to
court, or instead, as UTMB argues, to deny a court jurisdiction over an action
unless the requirements have been satisfied, the purpose is adequately protected
by abating a prematurely filed action until the end of the 60-day period,
provided that the procedures have been timely initiated and can continue for the
required 60 days or until a final decision is rendered, whichever occurs
first. To the extent other cases have
suggested
or held
to the contrary, we disapprove them.
Accordingly,
we grant petitioner’s motion for rehearing, grant the petition for review,
and without hearing oral argument,
affirm the judgment of the court of appeals.
Opinion
delivered: March 11, 2005
47 Tex. Sup. Ct. J. 1188 (Sept. 10,
2004).
Tex. Gov’t
Code §§ 554.001-.010.
Id. § 554.006(a)-(c):
“(a)
A public employee must initiate action under the grievance or appeal
procedures of the employing state or local governmental entity relating to
suspension or termination of employment or adverse personnel action before suing
under this chapter.
“(b)
The employee must invoke the applicable grievance or appeal procedures
not later than the 90th day after the date on which the alleged violation of
this chapter:
A(1)
occurred;
or
“(2)
was discovered by the employee through reasonable
diligence.
“(c)
Time used by the employee in acting under the grievance or appeal
procedures is excluded, except as provided by Subsection (d), from the period
established by Section 554.005.”
112 S.W.3d 815 (Tex. App.CHouston [14th Dist.] 2003) (en banc opinion by Brister,
C.J.; dissenting opinions by Anderson, J., and by Yates, J.) (interlocutory
appeal after reversal and remand in Barrett v. University of Texas Med.
Branch at Galveston, No.
14‑01‑00981‑CV, 1999 Tex. App. LEXIS 2947
(Tex. App.‑Houston [14th Dist.] 1999, pet. denied) (not designated for
publication)).
Hubenak v. San
Jacinto Gas Transmission Co., 141 S.W.3d 172, 184 (Tex. 2004) (“Rather, the
statute’s goal C avoidance of protracted litigation C can be accomplished by requiring an abatement of the
proceeding until the requirement that the parties ‘are unable to agree’ has been
satisfied.”) (citing Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958,
961-962 (Tex. 1999); Hines v. Hash, 843 S.W.2d 464, 469 (Tex. 1992);
State v. $435,000, 842 S.W.2d 642, 645 (Tex. 1992) (per curiam); Schepps v.
Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex. 1983)); American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 805 (Tex. 2001) (“If a claim is not within a court’s jurisdiction, and the
impediment to jurisdiction cannot be removed, then it must be dismissed; but if
the impediment to jurisdiction could be removed, then the court may abate
proceedings to allow a reasonable opportunity for the jurisdictional problem to
be cured.”).
Watson v. Dallas Indep.
Sch. Dist., 135 S.W.3d 208, 224-227 (Tex.
App.CWaco 2004, no pet.) (stating that the requirements of
section 554.006 are jurisdictional, but concluding that the plaintiff satisfied
them); Harris County v. Lawson, 122 S.W.3d 276, 281-284 (Tex.
App.CHouston [1st Dist.] 2003, pet. denied) (en banc)
(suggesting that the requirements of section 554.006 are jurisdictional, but
holding that the plaintiff satisfied them).
Bellows v. Hendrick,
No. 13-03-00445-CV, 2004 WL 1854240, at *2 (Tex. App.CCorpus Christi Aug. 19, 2004, pet. filed [no. 04-0973])
(mem. op.); City of San Antonio v. Marin, 19
S.W.3d 438, 441-442 (Tex. App.CSan Antonio 2000, pet. denied) (holding that the trial
court lacked jurisdiction of an action filed during the 60-day period provided
by section 554.004(d)).
See Tex.
Gov’t Code § 22.225(c) (regarding the Supreme Court’s jurisdiction over
interlocutory appeals); Long v. Humble Oil & Ref. Co., 380 S.W.2d
554, 555 (Tex. 1964) (regarding the Supreme Court’s jurisdiction to determine
whether appellate court had jurisdiction).