State v. Lueck

Decision Date26 June 2009
Docket NumberNo. 06-1034.,06-1034.
Citation290 S.W.3d 876
PartiesThe STATE of Texas and the Texas Department of Transportation, Petitioners, v. George LUECK, Respondent.
CourtTexas Supreme Court

Walter C. Brocato, Office of Attorney General, Kristina Weber Silcocks, Office of the Attorney General, Greg W. Abbott, Attorney General of Texas, Kent C. Sullivan, First Assistant Attorney General, Edward D. Burbach, Gardere Wynne Sewell LLP, Rafael Edward Cruz, Office of Attorney General, David S. Morales, Office of the Attorney General, Austin, TX, Ryan D. Clinton, Hankinson Levinger, Dallas, TX, for Petitioner.

Gregory C. Douglass, Gregory C. Douglass, P.C., Austin, TX, for Respondent.

Justice GREEN delivered the opinion of the Court.

Under the Texas Whistleblower Act, sovereign immunity is waived when a public employee alleges a violation of Chapter 554 of the Government Code. TEX. GOV'T CODE § 554.0035. A violation under Chapter 554 occurs when a governmental entity retaliates against a public employee for making a good-faith report of a violation of law to an appropriate law enforcement authority. Id. § 554.002(a). George Lueck was fired from the Texas Department of Transportation (TxDOT) after he sent an e-mail to the director of the Transportation Planning and Programming Division, reporting what he believed to be violations of state and federal law. Lueck then sued the State of Texas and TxDOT under the Whistleblower Act, alleging that he "was fired because of his good faith reports of TxDOT's violation of state and federal law." We hold that, because Lueck's e-mail report only warned of regulatory non-compliance, not a violation of law, and because an agency supervisor is not an appropriate law enforcement authority to whom a report should be made, Lueck's allegation affirmatively negates the court's subject-matter jurisdiction over the cause. The State's sovereign immunity is not waived, and thus, we reverse the court of appeals' judgment and dismiss the case for lack of subject-matter jurisdiction.

I

A 1995 Federal Highway Administration report concluded that Texas's system for collecting, analyzing, and reporting traffic data violated federal standards. In 1999, the State contracted with a private vendor, Cooper Consulting Company, to upgrade TxDOT's computers and develop software for a replacement system, called the Statewide Traffic Analysis and Reporting System ("STARS"). As the Assistant Director of TxDOT's Traffic Analysis Section, Lueck was responsible for the daily management of the STARS program. Three years into the implementation project, the state auditor began investigating a Cooper invoice that was left undisputed by TxDOT, charging the State $350,783. The charge was initially described by Cooper as both a contingency fee and a "Project Work Plan," but the vice president for Cooper later admitted that a "Project Work Plan" was worth no more than $75,000. TxDOT then requested a cost breakdown of the charge, which Cooper ultimately characterized as "payment smoothing."

Later, James Randall, the Director of the Transportation Planning and Programming Division at TxDOT, suspended all work on the STARS project, and advised Cooper that the State would no longer pay for work that was not previously approved by TxDOT. Cooper's lawyers then sent a demand letter, notifying TxDOT that Cooper would terminate its contract if the state failed to pay the disputed charge within thirty days. A day after the letter was sent, Lueck sent Randall an e-mail entitled "STARS Contract." In the e-mail, Lueck informed Randall that the Traffic Division urged "an immediate positive response and resolution" of Cooper's demand letter. In numbered format, he outlined five reasons why he believed TxDOT should resolve the dispute with Cooper, rather than cancel the contract. The e-mail warned that without the STARS system, TxDOT "is not capable of handling this data and will, therefore, never be in compliance." Lueck recommended that Randall have the e-mail "readily available" when discussing the implications of the Cooper demand letter with the TxDOT Administration and Contract Services Division. Thereafter, TxDOT informed Cooper that it would not pay the payment smoothing charge and accepted termination of Cooper's contract. TxDOT then fired Lueck on the basis that Lueck's attempt to justify the $350,783 charge, despite his knowledge that the charge was only worth a fraction of that cost, evidenced his own negligence and lack of trustworthiness.

Lueck sued the State and TxDOT (collectively, TxDOT) under the Whistleblower Act, alleging that his e-mail to Randall constituted a report of a violation of law to an appropriate law enforcement authority because it reported that the Department would violate federal and state law if TxDOT did not resolve the dispute with Cooper. The e-mail report, which was attached to Lueck's pleadings, specifically warned that, without the STARS program, TxDOT's existing software was "not capable of handling th[e] data and will, therefore, never be in compliance." TxDOT filed a plea to the jurisdiction, claiming that its immunity was not waived because Lueck did not make a good-faith report of a violation of law to an appropriate law enforcement authority, as required by section 554.002(a) of the Whistleblower Act. Lueck filed a second amended special exceptions and motion to dismiss the plea to the jurisdiction, arguing that his allegations alone, satisfied the unambiguous language of the Act's immunity statute. See TEX. GOV'T CODE § 554.0035. In response, TxDOT argued that Lueck's pleadings affirmatively demonstrated that he did not allege a violation under the Act because the e-mail he sent did not report an actual violation of the law, and his supervisor to whom he sent the e-mail report was not a law enforcement authority. TxDOT claimed it was at least entitled to a hearing on its plea to the jurisdiction because the court must consider relevant evidence when necessary to resolve jurisdictional issues. The trial court granted Lueck's motion to dismiss TxDOT's plea to the jurisdiction, and TxDOT appealed. See TEX. CIV. PRAC. & REM.CODE § 51.014(a)(8) (permitting appeal from interlocutory order that denies a plea to the jurisdiction by a governmental unit). The court of appeals affirmed, reasoning that "Lueck's pleadings affirmatively demonstrate the district court's jurisdiction to hear the case." 212 S.W.3d 630, 638. We disagree. A "violation under the Act" under section 554.0035 is not alleged if the pleadings affirmatively demonstrate that the plaintiff did not make good-faith report of a violation of law to an appropriate law enforcement authority. See TEX. GOV'T CODE § 554.002(a). Lueck's pleadings affirmatively negate the trial court's subject-matter jurisdiction because he did not report a violation of law, and his supervisor is not a "law enforcement authority." Id.

II

The State and other state agencies like TxDOT are immune from suit and liability in Texas unless the Legislature expressly waives sovereign immunity. Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 641 (Tex.2004); see also TEX. GOV'T CODE § 311.034 ("[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language."). A statute waives immunity from suit, immunity from liability, or both. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696-97 (Tex.2003). Immunity from suit is a jurisdictional question of whether the State has expressly consented to suit. Taylor, 106 S.W.3d at 696. On the other hand, immunity from liability determines whether the State has accepted liability even after it has consented to suit. Id. In some statutes, immunity from suit and liability are co-extensive, whereby immunity from suit is waived to the extent of liability. See, e.g., TEX. CIV. PRAC. & REM.CODE § 101.025(a); Miranda, 133 S.W.3d at 224 ("The Tort Claims Act creates a unique statutory scheme in which the two immunities are co-extensive. . . .").

Sovereign immunity from suit is properly asserted when the State files a plea to the jurisdiction. Miranda, 133 S.W.3d at 225-26 (citing Hosner v. DeYoung, 1 Tex. 764, 769 (1847)). In contrast, immunity from liability is an affirmative defense that cannot be raised by a plea to the jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999) (per curiam). However, when the facts underlying the merits and subject-matter jurisdiction are intertwined, the State may assert sovereign immunity from suit by a plea to the jurisdiction, even when the trial court must consider evidence "necessary to resolve the jurisdictional issues raised." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000); see also, e.g., Miranda, 133 S.W.3d at 223-24; Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001). We have limited the use of a plea to the jurisdiction in these circumstances by holding that such a plea may only be used to address jurisdictional facts. Tex. Dep't of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex.2004). Lueck, therefore, argues that Simons compels dismissal of this appeal because TxDOT has not appealed jurisdictional facts, but rather, facts involving the TxDOT's liability under section 554.002(a), which Lueck claims cannot be asserted by a plea to the jurisdiction. Therefore, as a threshold matter, the first issue is whether the elements of section 554.002(a) constitute jurisdictional facts that can implicate the court's subject-matter jurisdiction.

III

The immunity provision in the Whistleblower Act states:

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...

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