the University of Texas Medical Branch at Galveston D/B/A John Sealy Hospital ("UTMB") v. Kevin Barrett, M.D.

112 S.W.3d 815, 2003 Tex. App. LEXIS 6700

Opinions

EN BANC MAJORITY OPINION ON REHEARING

SCOTT BRISTER, Chief Justice.

Kevin Barrett, M.D. sued his employer, the University of Texas Medical Branch at Galveston (UTMB) alleging violations of the Texas Whistleblower Act.¹ The Act required Dr. Barrett to initiate a grievance before filing suit.² In a prior interlocutory appeal, we found there was some evidence he did, albeit imperfectly.³

The Act also required Dr. Barrett to wait 60 days after filing his grievance before filing a lawsuit.⁴ It is undisputed he did not, waiting only 27 days. UTMB has again filed an interlocutory appeal, arguing the trial court should have dismissed the case for lack of subject-matter jurisdiction because of the premature filing.⁵ A panel of this Court agreed.⁶ We granted Dr. Barrett’s motion for rehearing en banc, and now reach the opposite conclusion for the reasons set out below. Accordingly, we withdraw our opinion of December 12, 2002, and issue the following as the opinion of the Court en banc.

First, section 554.0035 of the Whistleblower Act, entitled ‘‘Waiver of Immunity,” is unconditional:

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.

This is all the Whistleblower Act says about sovereign immunity; there are no other conditions.⁷ Applying the proper standard of review,⁸ we cannot add conditions when the Legislature did not. A plain reading of the provision shows it is not “narrowly tailored”;⁹ it fits all claims alleged under the chapter — big or little, early or late. Because Dr. Barrett alleged a violation and sought relief allowed by the Act, sovereign immunity was waived.

Second, it is clear that every deadline and procedure found throughout the Act is not jurisdictional. For example, the Act contains its own venue provision,¹⁰ which the Texas Supreme Court has held is not jurisdictional.¹¹ In University of Houston v. Elthon,12 we held the Act’s limitations provision (requiring suit within 90 days of a violation) is a plea in bar that must be raised by motion for summary judgment, not by a plea to the jurisdiction.¹³ If a claimant must meet every prerequisite in the Act before sovereign immunity is waived, these cases cannot be correct.

Third, in Essenburg v. Dallas County,14 the Texas Supreme Court drew a distinction between “exhaustion” and “presentment” statutes:

• statutes requiring exhaustion of administrative remedies confer primary jurisdiction upon an administrative agency; failure to comply requires dismissal for want of jurisdiction.

• statutes requiring presentment give a governmental defendant notice and an opportunity to settle claims without litigation; failure to comply requires only an abatement.¹⁵

As we have recognized before (including the first appeal in this case), the Whistle-blower Act (1) does not require claimants to exhaust grievance procedures, and (2) was enacted to give government entities an opportunity to settle claims before litigation.¹⁶ It does not involve an administrative agency with primary jurisdiction to adjudicate specialized disputes (the “hallmark of a jurisdictional statute,” according to the Texas Supreme Court¹⁷). Thus, the Act’s 60-day waiting period can only fall in Essenburg’s “presentment” category.¹⁸

Our dissenting colleagues correctly point out that the Act does not mention abatement. But of course it does not mention dismissal for want of jurisdiction, either. The statute simply does not say what penalty applies to suits filed too early. But as noted above, Essenburg does.

Everyone agrees the purpose of the "Whistleblower Act’s 60-day waiting period is to encourage parties to resolve disputes short of litigation. Abatement ensures the parties have that window of opportunity.¹⁹ Dismissal merely ensures they go away — usually permanently, as the Act’s very short limitations deadlines will pass before most jurisdictional pleas can be filed and heard.

Like mandatory notice requirements in the Texas Deceptive Trade Practices Act²⁰ and the Medical Liability and Insurance Improvement Act article 4590i,²¹ noncompliance with the Whistleblower Act’s 60-day waiting period requires abatement instead of dismissal if a claimant jumps the gun. Thus, when Dr. Barrett did so, abatement was the proper remedy to allow UTMB to investigate and try to settle the claim. Because six years have passed since he filed suit, UTMB has had more than a fair opportunity to do so; neither dismissal nor abatement is warranted.²²

Several intermediate appellate courts have stated that an employee’s failure to initiate a grievance is a jurisdictional defect.²³ Pursuant to the Act, an employee must initiate a grievance before filing suit:

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.²⁴

But again, this mandatory section does not say what the consequences are if an employee fails to comply. No court has explained why a grievance could not be ordered during an abatement, or why the grievance requirement in section 554.006 limits the unconditional waiver of immunity in section 554.0035, when neither section says so. Accordingly, we disapprove of any language in our previous cases suggesting noncompliance is jurisdictional.

We also recognize the Fourth Court of Appeals has held that failure to wait 60 days before filing suit is jurisdictional.²⁵ The 60-day provision is stated in terms that are elective, not mandatory:

If a final decision is not rendered before the 61st day after the date procedures are initiated under Subsection (a), the employee may elect to: (1) exhaust the applicable procedures under Subsection (a), 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 under Subsection (a), in which event the employee must sue within the time remaining under Section 554.005 to obtain relief under this chapter.²⁶

Again, there is nothing here to suggest sovereign immunity is waived only after the stated deadline, or that subject-matter jurisdiction suddenly pops into existence at that point. And unlike section 554.006(a), this section does not even state that an employee “must” wait until the deadline passes to sue.²⁷ Accordingly, we respectfully decline to follow Mann.

A few final words about dictum — obiter or otherwise. The rule stated in this opinion is: filing too early is not jurisdictional, but requires abatement unless waived by delay. Subject-matter jurisdiction, of course, cannot be waived.²⁸ By deciding this case based on waiver, it is hard to see why our jurisdictional conclusion is unnecessary.

Undoubtedly, the State may place conditions on its consent to be sued, but it did not do so here. The deadlines in the Whistleblower Act have important purposes, but there is no indication those include tossing whistleblowers out of court permanently if they file suit too early. Though compliance with the Act’s 60-day waiting period is mandatory, noncompliance should result in abatement (if timely raised), not dismissal for want of subject-matter jurisdiction. Accordingly, we grant Dr. Barrett’s motion for rehearing en banc, and affirm the trial court’s order.

En Banc Majority Opinion delivered by Chief Justice BRISTER and Joined by Justices HUDSON, FOWLER, EDELMAN, FROST and GUZMAN. En Banc Dissenting Opinion filed by Justice ANDERSON and joined by Justice SEYMORE. Justice YATES also filed an En Banc Dissenting Opinion.

1

. See Tex. Gov’t Code § 554.001-.010.

2

. See § 554.006(a).

3

. See Barrett v. The Univ. of Tex. Med. Branch at Galveston, No. 14-01-00529-CV, 1999 WL 233341 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (not designated for publication).

4

. See Tex Gov't Code § 554.006(d).

5

. See Tex. Civ. Prac. & Rem.Code § 51.014(a)(8) (allowing interlocutory appeal if trial court denies plea to the jurisdiction by governmental unit).

6

. See Univ. of Tex. Med. Branch at Galveston v. Barrett, No. 14-01-00529-CV, 2002 WL 31769264 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (not designated for publication).

7

. The "to the extent” clause limits damages to those allowed by the Act. See Tex. Gov’t Code § 554.003 (capping recovery of nonpecuniary losses and barring punitive damages).

8

. Whether a trial court has subject-matter jurisdiction is a question of law subject to de novo review. See Texas Natural Resource Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). Statutes waiving sovereign immunity are strictly construed. See Brainard v. State, 12 S.W.3d 6, 28 (Tex. 1999). We construe a statute to give effect to legislative intent, based on the actual language used. See Am. Home Prods. Corp. v. Clark, 38 S.W.3d 92, 95 (Tex.2000).

9

. Post at 820.

10

. See Tex. Gov't Code § 554.007.

11

. See Wichita County, Tex. v. Hart, 917 S.W.2d 779, 783 (Tex.1996).

12

. 9 S.W.3d 351 (Tex.App.-Houston [14th Dist.] 1999, pet. dism’d w.o.j.).

13

. Id. at 356; see also Tex Gov’t Code § 554.005; accord, Tex. Dept. of Mental Health and Mental Retardation v. Olofsson, 59 S.W.3d 831, 833 (Tex.App.-Austin 2001, no pet.); Castleberry Indep. Sch. Dist. v. Doe, 35 S.W.3d 777, 782 (Tex.App.-Fort Worth 2001, pet. dism’d w.o.j.). Contra, Tex. S. Univ. v. Carter, 84 S.W.3d 787, 791-92 (Tex.App.Houston [1st Dist.] 2002, no pet.).

14

. 988 S.W.2d 188 (Tex.1998) (per curiam).

15

. Id. at 189.

16

. See Fort Bend Indep. Sch. Dist. v. Rivera, 93 S.W.3d 315, 319 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Barrett, 1999 WL 233341, at *4.

17

. Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 249 (Tex.2002).

18

. Our dissenting colleagues say this is an “exhaustion” statute because sovereign immunity is involved. They appear to be the first to add this qualifier to the Essenburg criteria. By relying on Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483 (Tex.1991), a case involving an exhaustion statute, they again appear to miss the distinctions that Essenburg requires.

19

. Our dissenting colleagues are correct that if a governmental entity does not move for abatement of a prematurely filed suit, it will not be abated. As long as they are not jurisdictional, parties may agree to waive their procedural rights. See, e.g., In re Bruce Terming Co., 988 S.W.2d 702, 704 (Tex.1998) (holding party may waive right to arbitration by substantially invoking judicial process to opponent's detriment).

20

. See Hines v. Hash, 843 S.W.2d 464, 468 (Tex. 1992) (holding failure to comply with 30-day pre-suit notice provision in DTPA required abatement rather than dismissal). Our dissenting colleagues are incorrect that Hines is distinguishable because the DTPA has the word “abatement” in the statute — the word was added in 1995 to conform the statute to the Hines holding from three years earlier. See Act of Sept. 1, 1995, 74th Leg., R.S., ch. 414, § 6, 1995 Tex. Gen. Laws 2993.

21

. See Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex. 1983) (holding failure to comply with 60-day pre-suit notice provision in article 4590i required abatement rather than dismissal).

22

. See Hines, 843 S.W.2d at 468 (holding defendant waives abatement unless requested very soon after answer).

23

. See, e.g., City of Weatherford v. Catron, 83 S.W.3d 261, 266 (Tex.App.Fort Worth 2002, no pet.); Carter, 84 S.W.3d at 791-92; Johnson v. The City of Dublin, 46 S.W.3d 401, 405 (Tex.App.-Eastland 2001, pet. denied); Gregg County v. Farrar, 933 S.W.2d 769, 111 (Tex.App.-Austin 1996, writ denied); see also Rivera, 93 S.W.3d at 320 (analyzing grievance requirement as if it were jurisdictional without expressly holding it was).

24

. Tex. Gov’t Code § 554.006(a).

25

. See City of San Antonio v. Marin, 19 S.W.3d 438, 441 (Tex.App.-San Antonio 2000, no pet.). It is significant that the City requested abatement in Marin, not dismissal. But because the employees in that case had abandoned their grievance and the American Arbitration Association had closed the file, there was nothing left to abate the case for.

26

. Tex. Gov't Code § 554.006(d) (emphasis added).

27

. In Univ. of Tex. Med. Branch at Galveston v. Hohman, the First Court of Appeals found the trial court had jurisdiction under the Whistleblower- Act, even though the facts recited show the employees did not wait 60 days after initiating grievance procedures before filing suit. 6 S.W.3d 767, 774-75 (Tex.App.-Houston [1st Dist.] 1999, pet. dism’d w.o.j.).

28

. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.2000).