Hillman v. Nueces Cnty.

• Decision Date: 15 March 2019
• Docket Number: No. 17-0588,17-0588
• Citation: 579 S.W.3d 354
• Parties: Eric D. HILLMAN, Petitioner, v. NUECES COUNTY, Texas and Nueces County District Attorney's Office, Respondents
• Court: Texas Supreme Court

579 S.W.3d 354

Eric D. HILLMAN, Petitioner,

v.NUECES COUNTY, Texas and Nueces County District Attorney's Office, Respondents

No. 17-0588

Supreme Court of Texas.

Argued October 31, 2018

Opinion delivered: March 15, 2019

Amie Augenstein, Christopher John Gale, Gale Law Group, PLLC, Corpus Christi, for Petitioner

Jeffrey R. Pruitt, Jenny Cron, Laura Garza Jimenez, Nueces County Attorney's Office, Corpus Christi, for Respondents

Justice Boyd delivered the opinion of the Court.

A former assistant district attorney filed this suit alleging that the county wrongfully terminated his employment because he refused his supervisor's order to withhold exculpatory evidence from a criminal defendant. The trial court dismissed the suit for lack of jurisdiction, and the court of appeals affirmed. Because we agree with those courts that governmental immunity bars the suit, we also affirm.

I.Background¹

Eric Hillman served as an assistant district attorney in Nueces County for two years. While preparing to prosecute a defendant charged with intoxicated assault and leaving the scene of an accident, Hillman discovered and interviewed a witness who said she was with the defendant the night of the incident and he was not intoxicated. Because the police report did not identify this witness, Hillman told his supervisor that he needed to disclose the witness to the defendant's attorney. The supervisor disagreed and instructed Hillman not to disclose the witness. Believing that he was legally required to disclose the witness, Hillman called the State Bar Ethics Hotline and the Texas Center for Legal Ethics for advice. Both told him he should disclose the information.

Three days before the defendant's trial, the victim confirmed to Hillman that the witness had been present at the scene. Hillman relayed this information to his supervisor and informed her that he had decided to disclose the witness to the defense attorney. On the day of trial, Hillman was fired for "failing to follow instructions." He alleges he was fired solely for refusing to withhold exculpatory evidence.

Hillman sued the County, the District Attorney's Office, and then-District Attorney Mark Skurka, in his official capacity (collectively, the County), seeking actual damages for lost wages and benefits, mental anguish, pain and suffering, and loss of earning capacity, and exemplary damages. The County moved to dismiss on the ground that governmental immunity bars Hillman's claims. The trial court agreed and dismissed the case, and the court of appeals affirmed, 559 S.W.3d 183, 187 (Tex. App.—Corpus Christi–Edinburg 2017).

II.Governmental Immunity

Sovereign immunity—usually called governmental immunity when referring to political subdivisions—protects governmental entities against suits and legal liabilities. City of Houston v. Hous. Mun. Emps. Pension Sys. , 549 S.W.3d 566, 575 (Tex. 2018) ; see also Reata Constr. Corp. v. City of Dallas , 197 S.W.3d 371, 374 (Tex. 2006). The County pleaded immunity from both suit and liability in this case, but only immunity from suit implicates the courts' jurisdiction. State v. Lueck , 290 S.W.3d 876, 880 (Tex. 2009). Because the trial court dismissed this case for lack of jurisdiction, we focus here solely on governmental immunity from suit. Because Hillman filed suit seeking money damages against a county and its department and official, governmental immunity bars this suit unless immunity has been waived. See City of Houston , 549 S.W.3d at 575.

Like every court of appeals that has addressed the issue,² the court of appeals concluded here that governmental immunity applies to Hillman's wrongful-termination claim and has not been waived. Presenting three alternative grounds for reversal, Hillman argues that (1) this Court abrogated or waived the County's immunity from this type of suit in Sabine Pilot Service, Inc. v. Hauck , 687 S.W.2d 733 (Tex. 1985), in which we recognized a cause of action for wrongful termination of an at-will employee for refusal to perform an illegal act, (2) the Texas legislature waived the County's immunity through the Michael Morton Act, or (3) we should abrogate or waive the County's immunity from such suits today. Although Hillman and his supporting amici³ bolster these grounds with serious and important policy concerns, we ultimately find the grounds themselves unconvincing.

A. Sabine Pilot

Texas—"steadfastly an at-will employment state"—generally permits both employers and employees to terminate their relationship at any time for any reason unless they contractually agree otherwise. Ritchie v. Rupe , 443 S.W.3d 856, 885–86 (Tex. 2014). The law recognizes, however, a number of exceptions to this rule. One "very narrow exception to the employment-at-will doctrine," which we adopted in Sabine Pilot , prohibits employers from terminating at-will employees "for the sole reason that the employee refused to perform an illegal act." 687 S.W.2d at 735. An employer who terminates an employee solely for that reason is liable to the employee for all resulting "reasonable tort damages, including punitive damages." Safeshred, Inc. v. Martinez , 365 S.W.3d 655, 661 (Tex. 2012).

Sabine Pilot involved claims against a private-sector employer, and this Court's very brief opinion never mentioned the duties or obligations of government employers. Noting that the Court did not expressly limit the exception to private employers or declare it inapplicable to government employers, Hillman argues that Sabine Pilot prohibits all employers—government as well as private—from terminating at-will employees solely for refusing to perform an illegal act. This argument reads too much into Sabine Pilot . Nothing in that opinion indicates anything regarding government employers. Because we simply did not consider or address whether the exception applies to government employers in Sabine Pilot , it provides no controlling principle on that issue here. See In re Tex. Dep't of Transp. , 218 S.W.3d 74, 77 (Tex. 2007) ("Because we did not address the question in Wilson, we do not consider Wilson controlling.") (referring to Wilson v. Tex. Parks & Wildlife Dep't , 886 S.W.2d 259, 261 (Tex. 1994) ).

Hillman suggests that even if Sabine Pilot did not resolve the issue, we can and should clarify today that the Sabine Pilot exception applies to government employers. See Sabine Pilot , 687 S.W.2d at 735 ("[T]his court is free to judicially amend a judicially created doctrine."). We have no problem holding that the exception applies to all Texas employers, in the sense that they all have a common-law-tort duty not to terminate at-will employees solely because the employee refuses to perform an illegal act. But holding that the Sabine Pilot exception applies to government employers does not help Hillman. Hillman's problem is not that the duty does not apply to government employers, but that immunity bars any suit for a government employer's breach of that duty.

Governmental immunity protects all governmental entities against suits and liabilities for their governmental actions, even when acting as employers. See City of Galveston v. State , 217 S.W.3d 466, 469 (Tex. 2007) (discussing the "heavy presumption in favor of immunity" for government actions). The legislature has provided a limited waiver of that immunity for certain tort and breach-of-contract actions.⁴

These statutes do not create tort or contractual duties or impose them on governmental entities. Those common-law duties preexist the statutes and apply to governmental entities as to anyone else, but immunity bars suits for breach of those duties. See City of Tyler v. Likes , 962 S.W.2d 489, 494 (Tex. 1997) (characterizing governmental immunity as "a bar to a suit that would otherwise exist").

Instead of creating or imposing duties, the statutes waive the immunity that would otherwise protect the government, removing the barrier that precludes suits or liability for breach of those preexisting common-law duties. So although we can say that the common-law-tort duty we recognized in Sabine Pilot applies to all Texas employers, Hillman still cannot pursue this suit for the County's alleged breach of that duty unless the legislature has waived the County's governmental immunity. Because Sabine Pilot did not involve a governmental defendant and did not address governmental immunity or its waiver, it does not support Hillman's argument that the trial court had jurisdiction over his claim.

B. The Michael Morton Act

More than fifty-five years ago, the United States Supreme Court held that the Constitution's due-process clause prohibits criminal prosecutors from suppressing material evidence that is "favorable to an accused." Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Just over five years ago, the Texas legislature statutorily addressed " Brady violations" by passing the Michael Morton Act. See Act of May 16, 2013, 83d Leg., R.S., ch. 49 (S.B. 1611) (codified at TEX. CRIM. PROC. CODE § 39.14) (amending subsection (a) and adding subsections (c) through (n) to section 39.14). The Michael Morton Act expressly requires prosecutors to

disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.

TEX. CODE CRIM. PROC. § 39.14(h). Prosecutors must disclose such information whenever they discover it, whether "before, during, or after trial." Id. § 39.14(k).

Hillman contends that the Michael Morton Act required him to disclose the witness's information in the case he was prosecuting, so the County wrongfully terminated him for refusing to perform an illegal act. But even accepting these assertions as true,⁵ the issue here is not whether Hillman has pleaded a valid Sabine Pilot claim, but whether the Act waives the County's governmental immunity against that claim.

To waive...