Gregg County v. Farrar

• Decision Date: 06 November 1996
• Docket Number: No. 03-95-00273-CV,03-95-00273-CV
• Citation: 933 S.W.2d 769
• Parties: 12 IER Cases 432 GREGG COUNTY, Texas, Appellant, v. Douglas E. FARRAR, Appellee.
• Court: Texas Court of Appeals

Page 769

933 S.W.2d 769

12 IER Cases 432

GREGG COUNTY, Texas, Appellant, v. Douglas E. FARRAR, Appellee.

No. 03-95-00273-CV.

Court of Appeals of Texas Austin.

Nov. 6, 1996.

Rehearing Overruled Dec. 12, 1996.

Kathryn L. Shilling, Fletcher & Springer, L.L.P., Dallas, Ann Clarke Snell, Bickerstaff, Heath, Smiley, Pollan Kever & McDaniel, L.L.P., Austin, for appellant.

D. Douglas Brothers, Brothers & Associates, Austin, for appellee.

Before CARROLL, C.J., and KIDD and B.A. SMITH, JJ.

BEA ANN SMITH, Justice.

This is an appeal from judgment on a jury verdict in a suit brought by Douglas Farrar against Gregg County under the Texas Whistleblower Act. ¹ After a trial resulting in a verdict for the plaintiff, the trial court first granted the county's motion for judgment notwithstanding the verdict, then reconsidered and vacated that order, entering judgment on the jury's findings. The jury awarded Farrar $18,000 for lost wages and mental anguish, plus attorneys' fees and costs.

The county contends that the trial court lacked jurisdiction over Farrar's claims because he failed to present them to the county commissioner's court pursuant to section 81.041(a) of the Local Government Code or, alternatively, because Farrar failed to exhaust the applicable grievance procedures as required by the Whistleblower Act. The county further argues that the trial court erred in (1) excluding evidence at trial of the grievance committee's hearing and decision; (2) vacating the judgment notwithstanding the verdict because there was no evidence of retaliation by Gregg County; and (3) assessing sanctions against Gregg County for denying certain requests for admissions which were freely admitted at trial.

We conclude that the presentment requirement of Local Government Code section 81.041(a) does not apply in this situation. However, we believe that the language of and policy underlying the Whistleblower Act required Farrar to utilize all grievance procedures, including an appeal to the county commissioner's court. Because he failed to do so, the district court lacked jurisdiction over his claims. Accordingly, we will reverse the judgment of the trial court and dismiss the cause.

FACTUAL AND PROCEDURAL BACKGROUND

Douglas Farrar began his employment with Gregg County in Precinct Four as a class A road operator. By the time James Johnson became county commissioner in January 1991, Farrar had been elevated to road superintendent, the highest position in the commissioner's precinct. Upon taking office, Commissioner Johnson began implementing new work policies and procedures, in addition to remodeling various precinct facilities and cleaning up work sites. In late January the new commissioner asked Farrar to remove several barrels located on a porch at the precinct yard. Commissioner Johnson testified that, because Farrar was reluctant to remove the barrels without knowing their contents, he ordered Farrar to determine what was in the barrels. Farrar testified that Johnson wanted him to dump the barrels into a pit at the airport. He also testified that after he contacted a laboratory about testing the contents of the barrels, Commissioner Johnson determined that the tests were too expensive and again asked Farrar to remove the barrels. Soon after the commissioner's first request, Farrar informed the county health officer that Commissioner Johnson had asked him to dump barrels containing unknown substances. Later in June, Farrar reported the incident to the Gregg County district attorney during a grand jury investigation into whether the county under a prior administration had improperly used county equipment and materials.

After returning from vacation on July 8, Farrar learned that the barrels had been removed to the airport. On July 22, Commissioner Johnson informed Farrar that he was being demoted from road superintendent to class B operator. The next day Farrar met with the commissioner to protest the demotion. When his efforts were unsuccessful, Farrar instituted a grievance hearing pursuant to the Gregg County employee manual. After a hearing on August 8, the grievance committee affirmed the demotion but informed Farrar that he was entitled to appeal the decision to the county commissioner's court by presenting a written request within seven days. Farrar made no such appeal. ²

Farrar filed suit against the county on October 31, 1991, alleging violations of the Whistleblower Act and the Hazard Communication Act, wrongful demotion, intentional discrimination, breach of contract, negligence, conspiracy, and violation of public policy. The court granted the county's motion for summary judgment on all causes of action except Farrar's claim that the county demoted him and eventually terminated his employment in retaliation for reporting a violation of law. The court denied the county's second motion for summary judgment asserting that the statute of limitations had expired and proceeded to trial on the whistleblower claims. The jury found that Gregg County wrongfully demoted Farrar from road superintendent to class B operator in retaliation for Farrar's reporting a violation of law to a law enforcement authority. The trial court first granted the county's motion for judgment notwithstanding the verdict, then reconsidered and vacated that order, rendering judgment on the jury verdict. After a post-trial hearing, the court granted Farrar's motion for sanctions against the county for abuse of discovery.

DISCUSSION

A. Presentment

In points of error one and two, the county contends that the trial court lacked jurisdiction because Farrar failed to present his claim to the Gregg County Commissioner's Court before bringing suit as required by Local Government Code section 81.041(a), which provides

[a] person may not sue on a claim against a county unless the person has presented the claim to the commissioner's court and the commissioner's court has neglected or refused to pay all or part of the claim.

Tex.Loc. Gov't Code Ann. § 81.041(a) (West 1988). The county asserts that this statute is jurisdictional in nature, so that failure to present a claim in the commissioner's court renders void the trial court's judgment. ³ The county relies on Bowles v. Wade, 913 S.W.2d 644 (Tex.App.--Dallas 1995, writ denied), in which the Dallas Court of Appeals reversed a judgment against the county because the plaintiff had failed to present his claim to the county before filing suit. The court held that "satisfaction of section 81.041 is necessary before a litigant has standing to invoke a trial court's subject matter jurisdiction." Id. at 648.

We hold that section 81.041 does not govern suits against counties under the Whistleblower Act. In rejecting the county's argument, we follow the reasoning of cases holding that section 81.041(a) does not apply to suits brought against counties under the Texas Tort Claims Act. See Harris County v. Dillard, 841 S.W.2d 552, 557 (Tex.App.--Houston [1st Dist.] 1992), rev'd on other grounds, 883 S.W.2d 166 (Tex.1994); Rosales v. Brazoria County, 764 S.W.2d 342 (Tex.App.--Texarkana 1989, no writ); Harris County v. Dowlearn, 489 S.W.2d 140, 146 (Tex.Civ.App.--Houston [14th Dist.] 1973, writ ref'd n.r.e.). The courts in those cases concluded that the notice provision of the Texas Tort Claims Act constituted the exclusive notice requirement for bringing suit under that statute. See Dowlearn, 489 S.W.2d at 146.

Like the Texas Tort Claims Act, the Whistleblower Act creates a cause of action under which public entities may be sued. See Travis County v. Colunga, 753 S.W.2d 716, 718 (Tex.App.--Austin 1988, writ denied). The purpose of section 81.041(a) is "to advise the commissioners court of [a] claim and afford it an opportunity to investigate and adjust it without litigation." Bowles, 913 S.W.2d at 650. Although the Whistleblower Act does not contain a notice provision, the statute provides that before suit is brought

[a]n employee of a local governmental body must exhaust any applicable grievance or appeal procedures adopted by the employing local governmental body to resolve disputes concerning the suspension or termination of an employee's employment or an allegation of unlawful discrimination.

See Former Tex.Rev.Civ.Stat.Ann. art. 6252--16a, § 3(d). The supreme court has stated that requiring exhaustion of remedies before suing under an anti-discrimination statute "encourages compliance through voluntary resolution, conference, conciliation and persuasion--informal processes other than litigation." See Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 486 (Tex.1991) (person claiming violation of Commission on Human Rights Act must exhaust that statute's remedies before bringing suit for the violation). The exhaustion requirement of the Whistleblower Act thus apprises the governmental entity of a claim against it and serves the same purpose as the notice requirement of section 81.041.

When two statutes concern the same subject matter, generally the more specific statute will control over the statute of more general application. See Stinnett v. Williamson County Sheriff's Dept., 858 S.W.2d 573, 576 (Tex.App.--Austin 1993, writ denied) (Human Rights Act which provides recourse for retaliation against employee who files a complaint alleging discrimination is more specific than Whistleblower Act which protects generally against retaliation for reporting any violation of law). Section 81.041 applies generally to claims against counties, whereas the Whistleblower Act creates a specific cause of action against the county. Therefore, because the exhaustion requirement of the Whistleblower Act inherently provides the county with the requisite notice, it supplants the general presentment requirement of section 81.041(a). ⁴ Accordingly, Farrar was not required to comply with section 81.041(a) before suing the county under the Whistleblower Act. We overrule points of error one and two.

B. Exhaustion

In its third...