Texas Dept. of Health v. Ruiz, 08-96-00255-CV

• Decision Date: 08 May 1997
• Docket Number: No. 08-96-00255-CV,08-96-00255-CV
• Citation: 960 S.W.2d 714
• Parties: TEXAS DEPARTMENT OF HEALTH, Appellant, v. Rafael RUIZ, Appellee.
• Court: Texas Court of Appeals

Page 714

960 S.W.2d 714

TEXAS DEPARTMENT OF HEALTH, Appellant, v. Rafael RUIZ, Appellee.

No. 08-96-00255-CV.

Court of Appeals of Texas El Paso.

May 8, 1997.

Rehearing Overruled Sept. 11, 1997.

Mary Leslie Stewart, Asst. Attorney General, Tort Litigation Division, Austin, Sheila Ellwood Skaggs, Assistant Attorney General, Natural Resources Division, Austin, for Appellant.

Enrique Moreno, Moreno, Fry & Bassham, El Paso, Thomas A. Spieczny, El Paso, for Appellee.

Before BARAJAS, C.J., and McCLURE and CHEW, JJ.

OPINION

BARAJAS, Chief Justice.

This is an appeal from a jury finding that Appellee, Rafael Ruiz, was an employee of Appellant, Texas Department of Health, and that Appellant discriminated against Appellee in violation of the Texas Workers' Compensation Act, Anti-Retaliation Provision. The judgment of the trial court awarded Appellee the sum of $250,000, and ordered that he be reinstated to his former position. We find that the State of Texas has not waived its sovereign immunity to be sued under the Anti-Retaliation Provision, reverse the judgment of the trial court, and render judgment that Appellee take nothing.

SUMMARY OF THE EVIDENCE

Rafael Ruiz, Appellee, was hired by the Texas Department of Health (TDH) in 1969 as an x-ray technician. In 1985, Appellee and El Paso City-County Health Department (EPCCHD) entered into a contract whereby control and supervision of Appellee was transferred to EPCCHD, but TDH continued to provide him with salary and benefits. Appellee was employed with TDH and EPCCHD for eighteen and one-half years.

Appellee was also interested in boxing. He boxed as a young boy, and he coached boxers on a voluntary basis on weekends and after work.

On April 13, 1988, Appellee injured his back at work. He reported his accident to his supervisor and the requisite worker's compensation forms were completed. While he was on leave for his work related injury, he received a call from one of his former boxing pupils, David Acosta. Acosta had been offered a match that was to be televised nationally from Las Vegas, and asked Appellee to serve as his corner man. On June 24, 1988, Appellee traveled to Las Vegas to act as a corner man. The fight consisted of four three minute rounds. The fight was shown on ESPN Network where Appellee was observed climbing in and out of the ring and performing the duties of a corner man.

A few days after Appellee returned home, Appellee received a "Pre-Termination Hearing Notice." The notice scheduled a hearing for June 30, 1988. The director of EPCCHD, Dr. Nickey, fired Ruiz on July 13, 1988, by mailing him a Notice of Termination. The reasons given were for abuse of sick leave and for engaging in outside employment without prior approval, even though Appellee was previously warned on February 29, 1988 that his continued abuse of sick leave would result in disciplinary action. Appellee appealed his termination to the EPCCHD Disciplinary Review Committee. Upon the Committee's recommendation, Dr. Nickey upheld the termination. Simultaneously with his termination, TDH suspended Appellee's worker's compensation benefits because Appellee "was observed working while he was allegedly totally disabled."

Appellee filed suit against TDH for violation of the Anti-Retaliation Law (Article 8307c of the Texas Workers' Compensation Statutes) on August 10, 1990. The jury found that Appellee was an employee of TDH in 1988 and also found that TDH had discharged or discriminated against Appellee in violation of the Texas Workers' Compensation Act. The jury awarded damages totaling $200,000 and the trial court entered judgment amounting to $250,000 and ordered that TDH reinstate Appellee to his former position.

DISCUSSION

Appellant brings ten points of error challenging the judgment of the trial court. Point of Error No. One alleges the trial court erred in entering judgment against TDH in violation of the doctrine of sovereign immunity. We agree.

This is a case of first impression, this Court having found no reported cases in which an agency of the State of Texas has been held liable for violation of the Texas Workers' Compensation Act, Anti-Retaliation Provision.

The Texas Department of Health (TDH) is an agency of the State of Texas, created by the Legislature. TEX. HEALTH & SAFETY CODE ANN. § 11.002 (Vernon 1992). It is entitled to sovereign immunity from suit and from liability, in the absence of a constitutional or statutory provision. Duhart v. State, 610 S.W.2d 740, 741 (Tex.1980). The waiver of sovereign immunity is a matter addressed to the Legislature, and the Legislature must waive sovereign immunity by clear and unambiguous language. City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex.1995); Duhart, 610 S.W.2d at 742; Canutillo Indep. Sch. Dist. v. Olivares, 917 S.W.2d 494, 496 (Tex.App.--El Paso 1996, no writ). It is the Legislature's prerogative to waive sovereign immunity. Abraham Nee Ntreh v. Univ. of Texas at Dallas, 936 S.W.2d 649, 653 (Tex.App.--Dallas 1996, writ pending), citing Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.1994).

In the instant case, we must determine whether Article 8703c, ¹ the Anti-Retaliation Provision, waives the sovereign immunity of the State of Texas and thus allows a state employee to bring suit. Article 8703c has never been amended but has since been recodified without substantive change as Sections 451.001-.003 of the Texas Labor Code. ² Barfield, 898 S.W.2d at 293. In Barfield, the Supreme Court was tasked to determine whether the Legislature had by clear and unambiguous language waived municipal immunity for the retaliatory termination claims. The Court commenced its discussion of sovereign immunity by stating:

One might suppose that this determination would be a relatively easy matter, and it would be, of course, had the Legislature ever stated, to take one extreme, that governmental immunity for retaliatory discharge claims is waived--in those exact words--just as it would be if, to take the other extreme, the Legislature had never broached the issue at all.

Id. at 291-92. The Supreme Court found that a waiver of immunity was based on how the Anti-Retaliation Provision was applied to political subdivisions, rather than finding that the Anti-Retaliation Provision expressly waived the municipality's immunity or that the adoption of the Anti-Retaliation Provision through the Political Subdivisions Law waived immunity. Id. at 293-96.

The Court found that the Legislature waived governmental immunity for political subdivisions because of the presence in the Political Subdivisions Act of two different election of remedies provisions, one present in the 1981 Act and another in the 1989. At Section 3(a)(5) of the 1981 version of the Political Subdivisions Act, an election of remedies provision required political subdivisions to elect between employees filing under the Anti-Retaliation Act, or providing them another remedy by charter or ordinance for ultimate access to the district court for wrongful discharge. Id. at 295. The Court stated, "Absent a clear expression of intent to waive immunity completely, we do not construe Section 3(a)(5) to waive immunity for relief other than what cities might themselves elect to provide to avoid application of the Anti-Retaliation Law." Id. at 297. In effect, this election provision waived sovereign immunity for limited relief.

The Court, in focusing on the election-of-remedies provisions found in the Political Subdivisions Act, ³ stated as follows:

Finally, both the 1989 and 1993 versions of the Political Subdivisions Law required an election between an action for a violation of the Anti-Retaliation Law and an action for the Whistleblower Act. Since immunity has clearly been waived for the latter statute, ... the requirement of an election suggests that immunity is also waived for the former.... The Anti-Retaliation Law and the Whistleblower Act are not, of course, coextensive, but to the extent they might both apply in a situation, it would make little sense to require an employee to elect between an action barred by immunity and one not barred.

. . . . .

This election-of-remedies provision ... persuades us, in the end, that the Legislature must have intended to waive political subdivisions' immunity for liability imposed by the Anti-Retaliation Law. [Emphasis added].

Id. at 298; Canutillo Indep. Sch. Dist., 917 S.W.2d at 496-97.

This election-of-remedies provision found in the Political Subdivision Act is not present in the current statute, or its predecessors, as being applicable to agencies of the State of Texas. ⁴ As stated above, the Supreme Court found a waiver of immunity for political subdivisions only because of the of the election-of-remedies provisions included in the Political Subdivisions Law, as codified previously and currently. There is no election provision in the 1981 version of Article 8309h, ⁵ which would apply in this case since Appellee was terminated in 1988. The absence of a corresponding provision in the state application statute persuades this Court to conclude that there is no clear and unambiguous intent to waive sovereign immunity for agencies of the State of Texas. On review, we have extensively examined other pertinent statutes in which the Texas Legislature has provided a clear intent to waive sovereign immunity. Using those statutes as a guide, we fail to find the same clear and unambiguous language in the instant statute. The clearest expression of Legislative intent waiving sovereign immunity is found in the Texas Tort Claims Act. ⁶ Although this is not an absolute waiver, it does provide clear guidance that when the Legislature wishes to express its intent in clear and unambiguous language it can do so. Section 101.025 of the Texas Tort Claims Act states:

(a) Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter.

(b) A person having a claim under this chapter may sue a...