Galveston Independent School Dist. v. Jaco, 14-08-00271-CV.
| Citation | 278 S.W.3d 477 |
| Decision Date | 20 January 2009 |
| Docket Number | No. 14-08-00271-CV.,14-08-00271-CV. |
| Parties | GALVESTON INDEPENDENT SCHOOL DISTRICT, Appellant, v. Brent JACO, Appellee. |
| Court | Texas Court of Appeals |
William S. Helfand, Barbara E. Roberts, Houston, for appellant.
Syd Phillips, Houston, for appellee.
Panel consists of Chief Justice HEDGES and Justices GUZMAN and BROWN.
In this accelerated interlocutory appeal, Galveston Independent School District ("the District") challenges the denial of its plea to the jurisdiction. The District claims sovereign immunity from a lawsuit in which Brent Jaco alleges that the District took adverse personnel action against him in violation of the Texas Whistleblower Act. Because the District failed to present arguments that, if true, would deprive the trial court of subject-matter jurisdiction, we affirm.
Brent Jaco was employed by the District as Director of Athletics and Extracurricular Activities. On or about November 9, 2005, Jaco learned that a student on the Ball High School football team was in violation of a University Interscholastic League ("UIL") rule regarding parent residency. Jaco discussed the possible UIL violation with school officials, and with the District's approval, he submitted a written report to the UIL on November 9, 2005 regarding the violation. As a result of the violation, Ball High School's football team was barred from participating in the playoffs.
On December 16, 2005, the District reassigned Jaco to the position of athletic trainer.1 On January 6, 2006, Jaco appealed the transfer through the District's administrative grievance process. After a hearing, the District reinstated Jaco's job position as Director of Extracurricular Activities, but not Director of Athletics. Thereafter, the District did not offer Jaco his previous position of Director of Athletics or Director of Extracurricular Activities for the 2006-07 school year. Instead, on May 1, 2006, the District offered Jaco a term contract as a teacher.
On April 4, 2006, Jaco filed suit against the District, alleging violations under the Texas Whistleblower's Act ("the Act"). See TEX. GOV'T CODE ANN. §§ 551.001-.010 (Vernon 2004). The District initially filed a no-evidence and traditional summary-judgment motion, which the trial court denied, and we dismissed the District's interlocutory appeal for want of jurisdiction. Galveston Indep. Sch. Dist. v. Jaco, No. 14-07-00313-CV, 2007 WL 5473075 (Tex. App.-Houston [14th Dist.] Nov. 15, 2007, no pet.) (mem.op.). The District then filed a plea to the jurisdiction in which it asserted that (a) the District's actions do not constitute an adverse employment act, (b) the UIL rule is not a law, and (c) the UIL is not an "an appropriate law enforcement authority" as that term is used in section 554.002(a) of the Texas Government Code. See TEX. GOV'T CODE ANN. § 554.002. The trial court denied the plea, and this interlocutory appeal ensued.
In three issues, the District challenges the trial court's denial of its plea to the jurisdiction, arguing that (a) the pleadings and evidence show no waiver of immunity from suit, (b) Jaco admitted he did not report a violation of law to an appropriate law enforcement agency, and (c) Jaco admitted he never suffered a material adverse employment action.2
Because jurisdiction is a question of law, the trial court's ruling on a plea to the jurisdiction is subject to de novo review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the trial court's jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003). To determine if the plaintiff has met that burden, "we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties." Id. (quoting Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex.2001)); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993) (). We do not consider the merits of the plaintiff's case, but focus instead on the pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). We construe the pleadings liberally in favor of conferring jurisdiction. Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.2002) (per curiam). Nevertheless, a waiver of immunity must be clear and unambiguous. Tooke v. City of Mexia, 197 S.W.3d 325, 332-33 (Tex.2006). Thus, we determine whether the plaintiff has pleaded a claim for which a governmental unit has waived immunity by reading the pleadings broadly and the alleged waiver narrowly. City of Houston v. Clear Channel Outdoor, Inc., 233 S.W.3d 441, 445 (Tex.App.-Houston [14th Dist.] 2007, no pet.). 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 plaintiff should be afforded the opportunity to amend. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex.2004). If, on the other hand, the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. City of Carrollton v. Singer, 232 S.W.3d 790, 795 (Tex.App.-Fort Worth 2007, pet. denied) (citing Miranda, 133 S.W.3d at 227).
In its first issue, the District argues that the trial court's denial of its plea is erroneous because the District's substantive arguments, addressed here in its second and third issues, are jurisdictional. The District contends in its second issue that the trial court erred in denying its plea to the jurisdiction because "Jaco admits he did not report a violation of law to an appropriate law enforcement agency, which is fatal to his assertion of a waiver of governmental immunity and, generally, his claim." This statement encompasses the District's three subsidiary arguments that (a) Jaco admits he did not make a "report," (b) the UIL's parental residency rule is not a "law," and (c) the UIL is not the appropriate agency to which a violation should reported. The District argues in its third issue that no adverse employment action occurred because it merely changed Jaco's title and he accepted a contract as a teacher the following year. Before reaching the merits of these arguments, we must first determine if they raise jurisdictional issues.
Although the District attempts to analogize a claim under the Whistleblower Act to a claim under the Texas Tort Claims Act ("the TTCA"), there are significant differences between the two. The TTCA creates a statutory scheme in which immunity to suit and immunity to liability are coextensive. TEX. CIV. PRAC. & REM.CODE ANN. § 101.025(a) (Vernon 2005) (); Miranda, 133 S.W.3d at 224. Consequently, the elements of a TTCA claim can be considered jurisdictional, because evidence that challenges an element of the claim necessarily challenges the trial court's subject-matter jurisdiction. A party therefore can demonstrate the trial court's lack of jurisdiction over a TTCA claim by establishing that the claim lacks merit. Miranda, 133 S.W.3d at 226-27; Prairie View A & M Univ. v. Brooks, 180 S.W.3d 694, 703 (Tex.App.-Houston [14th Dist.] 2005, no pet.).
Under the Whistleblower Act, however, the waiver of immunity from suit is broader than the waiver of immunity from liability. See Montgomery County, Tex. v. Park, 246 S.W.3d 610, 613 n. 2 (Tex.2007). This cause of action is created by section 554.0035 of the Texas Government Code, entitled "Waiver of Immunity," which provides as follows:
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.
TEX. GOV'T CODE ANN. § 554.0035 (Vernon 2004). As explained by our sister court in Texas Department of Human Services v. Okoli, the first sentence of section 554.0035 waives immunity from suit, and the second sentence waives immunity from liability. 263 S.W.3d 275, 278 (Tex.App.-Houston [1st Dist.] 2007, pet. filed) (citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696-97, nn. 5-6 (Tex.2003)). Moreover, we previously have construed this statute and concluded that a public employee successfully invokes the subject-matter jurisdiction of the trial court by alleging a violation and seeking relief allowed by the Whistleblower Act. Univ. of Tex. Med. Branch at Galveston v. Barrett, 112 S.W.3d 815, 817 (Tex.App.-Houston [14th Dist.] 2003) (), aff'd on other grounds, 159 S.W.3d 631 (2005) (per curiam). The public employer's waiver of immunity to such a suit is unconditional. Id. ().
Here, Jaco adequately invoked the trial court's subject-matter jurisdiction and established waiver of immunity. His status as a public employee is undisputed, and in his Third Amended Original Petition, Jaco alleges the following:
On or about November 9, 2005, Plaintiff became aware of an ineligible student playing on the Ball High School football team. Ball High School is part of the GISD. The student was in violation of a University Interscholastic League ("UIL") parent residency rule. Plaintiff reported...
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