Texas State University and Texas State University System v. Stuart Patrick Wilkinson

ACCEPTED

15-25-00028-CV

FIFTEENTH COURT OF APPEALS

AUSTIN, TEXAS

5/27/2025 4:56 PM

NO. 15-25-00028-CV-CV CHRISTOPHER A. PRINE

CLERK

IN THE FIFTEENTH COURT OF APPEALS

AUSTIN, TEXAS

Texas State University and Texas State University System,

Defendants/Appellants FILED IN

v. 15th COURT OF APPEALS

AUSTIN, TEXAS

Stuart Patrick Wilkinson, Plaintiff/Appellee

5/27/2025 4:56:56 PM

CHRISTOPHER A. PRINE

Clerk

Expedited Appeal from Cause No. 24-1162

in the 22nd Judicial District Court of Hays County, Texas

APPELLEE’S BRIEF

David Junkin

State Bar No. 11058020

david@mcglothlinlaw.com

133 W. San Antonio Street, Suite 400

San Marcos, TX 78666

Telephone: 512/392-7510

Telecopier: 512/392-7520

Attorney for Appellee, Patrick Wilkinson

TABLE OF CONTENTS

Index of Authorities ..................................................................................... iii

Index to Appendix ..........................................................................................v

Brief Statement of the Case ..........................................................................1

Standard of Review ........................................................................................1

Statement Regarding Oral Argument .........................................................3

Issues Presented .............................................................................................3

A. Is Appellee’s Texas Whistleblower Act claim barred by

sovereign immunity and did Appellee pled a viable claim under

the Act?

B. Appellee pled facts to support a waiver of sovereign immunity

for a constitutional free-speech retaliation claim and material

adverse personnel actions?

C. Is Appellee asserting a generic “tort” claim?

D. Is dismissal with prejudice appropriate?

Summary Statement of Background Facts .................................................4

Summary of the Argument ...........................................................................7

Argument ........................................................................................................8

A. Appellee’s Texas Whistleblower Act claim is not barred by sovereign

immunity -- sovereign immunity is expressly waived under the Act

and Appellee pled a viable claim under the Act...……………..…………8

i. Sovereign Immunity is Expressly Waived Under the Texas

Whistleblower Act…………………………………………………..…8

i

ii. Appellee Pled a Viable Claim Under the Texas Whistleblower

Act……………………………………………………………………...…9

iii. Appellee’s Pleading Alleges Exhaustion of His Administrative

Remedies…………………………………………………………..….…11

iv. Pleading Specific Dates is Not Required…………..……………..12

v. Appellants Did Not Make the Specific Denial Required Under

Rule 54 TRCP…………………………….…………………………...13

vi. Appellee’s Pleading Does Not Establish His Claim is Time-

Barred………….……………………..…………………………………14

vii. Appellee’s Pleading Alleges Material Adverse Personnel

Actions…………………...…………………………………………..…16

B. Appellee pled facts to support a waiver of sovereign immunity for a

constitutional free-speech retaliation claim and material adverse

personnel actions.…………………………………….…………………..…..18

i. Appellants are Not Immune From Appellee’s Free-Speech

Retaliation Claims……………………………………………………18

ii. Appellee Pled a Viable Free-Speech Retaliation Claim……...19

iii. Appellee Pled Adverse Personnel Actions Taken Against Him in

Retaliation for Exercising his Free Speech Rights…….……………..20

iv. Suit was Properly Brought Against Entities v. Individuals…....20

v. 1983 Claim Issues……………………………………………...…….22

C. The Appellee is not asserting a generic “tort” claim…………..…….…23

D. Dismissal with prejudice is not appropriate at this stage because if his

pleading is found to be insufficient, Appellee must be given an

opportunity to amend.……………..………………………………...……….23

Prayer for Relief.......................................................................................... 27

ii

Certification of Compliance ....................................................................... 28

Certificate of Service .................................................................................. 28

INDEX OF AUTHORITIES

Case Law Page(s)

Caleb v. Carranza,

518 S.W.3d 537 (Tex. App.—Houston [1st Dist.] 2017, no pet.) .......................... 19

City of El Paso v. Heinrich

284 S.W.3d 366 (Tex. 2009). ........................................................................ 21, 22

Haddix v. American Zurich Ins.,

253 S.W.3d 339 (Tex. App.—Eastland 2008, no pet.) ......................................... 24

Harris County v. Sykes

136 S.W.3d 635 (Tex. 2004). ....................................................................... 24, 25

Klumb v. Houston Municipal Employees Pension System,

458 S.W.3d 1 (Tex. 2015)................................................................................... 18

Montgomery County v. Park

246 S.W.3d 610 (Tex. 2007) ............................................................................... 17

Scott v. Godwin,

147 S.W.3d 609 (Tex. App.—Corpus Christi 2004, no pet.) ................................. 19

Skinny’s Inc. v. Hicks Brothers Construction Co.,

602 S.W.2d 85, (Tex. Civ. App.—Eastland 1980, no writ). .................................. 14

State v. Lueck,

290 S.W.3d 876 (Tex. 2009) ............................................................................. 8, 9

Texas A&M University System v. Koseoglu,

233 S.W.3d 835 (Tex. 2007) ......................................................................... 25, 26

iii

Texas Dept. of Corrections v. Herring,

513 S.W.2d 6 (Tex.1974) ................................................................................... 23

Texas Dep’t Crim Justice-Comm. Justice Assistance Div. v. Campos,

384 S.W.3d 810 (Tex. 2012) ............................................................................... 26

Texas Department of MHMR v. Rodriguez,

63 S.W.3d 475 (Tex. App.—San Antonio 2001, pet. denied)................................ 17

Texas Dept. Parks and Wildlife v. Miranda,

133 S.W.3d 217 (Tex. 2004) ........................................................................... 2, 14

Texas Parks & Wildlife Dept. v. RW Trophy Ranch, Ltd.,

15-24-00112-CV (Tex. App. April 10, 2025, no pet.) ............................................. 3

Truss World, Inc. v, ERJS, Inc,

284 S.W.3d 393 (Tex. App.—Beaumont 2009, pet. denied) ................................. 14

University of Texas v. Kearney,

03-14-00500-CV (Tex. App.—Austin May 3, 2016, pet. denied) (mem. op.). 2, 3, 11

UTMB v. Hohman,

6 S.W.3d 767 (Tex. App.—Houston [1st Dist.] 1999, pet. dismissed) .................... 17

Ward v. Lamar University,

484 S.W.3d 440 (Tex. App.—Houston [14th Dist.] 2016, no pet.) ................... 16, 17

Statutes

TEX. GOV’T CODE § 554.0035. ......................................................................... 8, 9

TEX. GOV’T CODE § 554.001. ................................................................... 5, 16, 17

TEX. GOV’T CODE §554.002. .................................................................... 9, 10, 16

TEX. GOV’T CODE §554.005. .............................................................................. 15

TEX. GOV’T CODE §554.006. .............................................................................. 15

iv

Rules

TEX. R. CIV. P. 45 ............................................................................................. 14

TEX. R. CIV. P. 47 ............................................................................................. 14

TEX. R. CIV. P. 54 ................................................................................... 7, 13, 14

INDEX TO APPENDIX

Statute (Chapter 554, Tex. Gov’t Code) ................................................TAB A

Cases ..................................................................................................... TAB B

v

TO THE HONORABLE FIFTEENTH COURT OF APPEALS:

BRIEF STATEMENT OF THE CASE

1. This case is fundamentally a Texas Whistleblower Act proceeding

arising out of reports by the Appellee to the Federal Bureau of Investigation

(“FBI”) and to the Appellants and the resulting adverse personnel actions taken

against him by Appellants. A hearing was held on the Appellants’ Plea to the

Jurisdiction. The Appellants provided no evidence with their Plea to the

Jurisdiction or at the hearing, or with their post-hearing briefing. The underlying

issue before the Trial Court, and this Court, is the sufficiency of the Appellee’s

petition.

2. As discussed in more detail below, under the applicable standard of

review of his pleadings, the Appellee has pled a viable Texas Whistleblower Act

claim and viable free-speech retaliation claim. The Trial Court denied the

Appellants’ Plea. However, if this Court finds that Appellee’s pleading is

insufficient in some regard, Appellee should be afforded the opportunity to amend

in order to meet any such deficiency.

STANDARD OF REVIEW

3. In this case, the Appellants offered no evidence whatsoever to support

their jurisdictional challenge. The arguments of counsel and suggestions as to

what the evidence would have shown, do not support a challenge to jurisdictional

Appellee’s Brief – Page 1

facts. 1 Therefore, Defendants cannot properly challenge the evidentiary basis for

the Appellee’s pleading – as opposed to challenging the sufficiency of the pleading

itself. In other words, this appeal is strictly a challenge to the sufficiency of

Appellee’s pleading. As the Texas Supreme Court has noted:

When a plea to the jurisdiction challenges the pleadings, we determine if the

pleader has alleged facts that affirmatively demonstrate the court's

jurisdiction to hear the cause. We construe the pleadings liberally in favor

of the plaintiffs and look to the pleaders' intent. 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 plaintiffs should

be afforded the opportunity to amend. 2

The review by this Court is de novo. 3

4. Accordingly, this Court should look to the Appellee’s First Amended

Original Petition (“Amended Petition”) 4 for Appellee’s intent, construe the

Amended Petition liberally in favor of jurisdiction, and accept the allegations in the

1

See e.g., University of Texas v. Kearney, 03-14-00500-CV, pg. 14 (Tex. App.—Austin

May 3, 2016, pet. denied) (mem. op.) (“Instead, the University asserts only arguments as

to what the evidence would show had it offered any. However, the arguments of counsel

are not evidence. Thus, the University asks us to determine jurisdictional facts in the

absence of any record evidence whatsoever. Consequently, there is no evidence of the

facts it now urges us to rely on in determining that Kearney cannot show she was treated

less favorably than similarly situated employees. We cannot do so.”) (citations omitted)

2

Texas Dept. Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004)

(citations omitted).

3

Id. at 226 and Kearney at 5.

4

Amended Petition, Clerk’s Record, page 47.

Appellee’s Brief – Page 2

Amended Petition as true. 5 Using that standard, this Court should determine if

Appellee has alleged facts that affirmatively demonstrate the Court's jurisdiction to

hear the case. 6 If the Amended Petition does not contain sufficient facts to

affirmatively demonstrate jurisdiction but do not affirmatively demonstrate

incurable defects in jurisdiction, the issue is one of pleading sufficiency and the

Appellee should be afforded the opportunity to amend.

STATEMENT REGARDING ORAL ARGUMENT

5. Given that essentially the sole issue before the Court is the

sufficiency of the Appellee’s pleading, Appellee believes that the pleadings will

adequately present the facts and legal arguments involved in this appeal and that

oral argument would not significantly aid the decisional process of, or review by,

this Court. However, if the Court determines oral argument would be helpful,

Appellee intends to participate.

ISSUES PRESENTED

6. The trial court properly denied the Appellants’ Plea because under the

applicable standard of review, the Appellee’s Amended Petition does not establish

his claims are barred by sovereign immunity, he has pled sufficient facts to support

5

Kearney at 5.

6

Tex. Parks & Wildlife Dept v. RW Trophy Ranch, Ltd., 15-24-00112-CV (Tex. App.

April 10, 2025, no pet.).

Appellee’s Brief – Page 3

those claims, he has not pled a generic “tort” claim, any alleged defects are not

incurable and therefore dismissal with prejudice at this stage is not appropriate.

SUMMARY STATEMENT OF BACKGROUND FACTS7

7. The Appellee is a CPA and has been a public employee for more than

40 years. For virtually all of his career, Appellee was a valued and respected

employee and was responsible for high-level projects and consistently received

positive evaluations for his work. More recently, Appellants held training and

related events encouraging employees to report suspected wrongdoing. The

Appellants also purported to encourage its employees to report suspected

violations of the law and suspected misconduct by Appellants’ faculty, staff, and

officers. While at times criticized for his conservative viewpoints by his superiors,

the Appellants also appeared to take pride in presenting a public persona of

promoting openness, diversity, equity, inclusion, diversity of opinions, etc.

8. In 2023, the Appellee became aware of issues raised by Quest

Software, Inc., a California-based company, about licensing of its database

management software product called “Toad” and the Appellants’ use of that

software without proper licenses. The issue raised concerned the number of

approved licenses for Appellants versus the number of computers using some

7

Taken from the Amended Petition (Clerk’s Record, beginning on page 47) and

reasonable inferences drawn therefrom.

Appellee’s Brief – Page 4

version of Toad. The Appellee also became aware of the issue through a co-

worker who, before an audit was conducted to determine the number of computers

with Toad software, was told by the Appellant to have his hard-drive “reformatted”

such that if Toad software was on his computer, it would be deleted. This course

of conduct raised good faith and legitimate concerns about spoliation, illegal

conduct and violations of multiple laws.

9. The Appellee, in good faith, reported the foregoing facts and potential

violation of the law by the Appellants to the FBI. The Appellee, as a CPA, was

familiar with criminal charges against CPAs arising out of the “Enron” cases from

years ago, particularly as it relates to destruction of evidence. Accordingly, the

Appellee reasonably believed the FBI was an “appropriate law enforcement

authority,” as that term is used in Texas Government Code § 554.001, because he

was familiar with its authority to investigate violations of federal criminal laws,

interstate matters, spoliation claims, destruction of evidence, etc.8

10. After making the underlying report of suspected criminal activity to

the FBI, Appellee also made the report to the Texas State University System’s

Internal Audit Office for investigation though its Ethics Point online reporting

system. However, the Internal Audit “investigation” did not even appropriately

8

It is not lost on Appellee that the Texas Attorney General’s Office could be charged

with prosecuting the alleged criminal behavior by Appellants and is also defending the

Appellants in this related matter creating the strong potential for a conflict of interest.

Appellee’s Brief – Page 5

investigate the matters reported to the FBI and the Appellant failed to take steps to

prevent Appellee’s supervisors/managers from retaliating against him. Since

making the reports, the Appellee pled that Appellants have, among other things:

(i) refused to consider promotional opportunities for Appellee, (ii) intentionally

deprived Appellee of networking and social interactions that he had enjoyed for

years, (iii) created a hostile, demeaning, and restrictive work atmosphere, (iv)

fabricated performance reviews with the purpose of creating a pretext to demote

and/or terminate Appellee, (v) did not promote Appellee, (vi) reduced Appellee’s

pay, (vii) denied Appellee pay raises, (viii) denied Appellee promotional

opportunities, and (ix) unfairly limited Appellee’s employment benefits.

11. As a result of the Appellants’ retaliatory conduct the Appellee has

suffered and will continue to suffer damages in the form of lost wages, lost future

wages, lost future expected pay increases, and/or lost benefits (to also include

promotional opportunities). After being subjected to material adverse personnel

action because of his reports, Appellee timely instituted the administrative

grievance process and, when that process was exhausted, the Appellee filed this

suit.

Appellee’s Brief – Page 6

SUMMARY/OUTLINE OF THE ARGUMENTS

12. As noted above, Appellants offered no evidence to support their Plea

to the Jurisdiction or to counter the facts alleged in the Amended Petition.

Appellants also did not bring their contest to jurisdiction as a traditional or no-

evidence motion for summary judgment. Accordingly, the Trial Court properly

denied the Appellants’ Plea because:

A. Appellee’s Texas Whistleblower Act claim is not barred by sovereign

immunity – sovereign immunity is expressly waived under the Act

and Appellee pled a viable claim under the Act.

i. Sovereign Immunity is Expressly Waived Under the Texas

Whistleblower Act.

ii. Appellee Pled a Viable Claim Under the Texas Whistleblower

Act.

iii. Appellee’s Pleading Alleges Exhaustion of His Administrative

Remedies.

iv. Pleading Specific Dates is Not Required.

v. Appellants Did Not Make the Specific Denial Required Under

TRCP 54.

vi. Appellee’s Pleading Does Not Establish His Claim is Time-

Barred.

vii. Appellee’s Pleading Alleges Material Adverse Personnel

Actions.

B. Appellee pled facts to support a waiver of sovereign immunity for a

constitutional free-speech retaliation claim and material adverse

personnel actions.

Appellee’s Brief – Page 7

i. Appellants are Not Immune From Appellee’s Free-Speech

Retaliation Claims.

ii. Appellee Pled a Viable Free-Speech Retaliation Claim.

iii. Appellee Pled Adverse Personnel Actions Taken Against Him in

Retaliation for Exercising his Free-Speech Rights.

iv. Suit was Properly Brought Against Entities v. Individuals.

v. 1983 Claim Issues.

C. The Appellee is not asserting a generic “tort” claim.

D. Dismissal with prejudice is not appropriate at this stage because if

Appellee’s pleading is found to be insufficient, Appellee must be

given an opportunity to amend.

ARGUMENTS

A. Appellee’s Texas Whistleblower Act claim is not barred by sovereign

immunity -- sovereign immunity is expressly waived under the Act and

Appellee pled a viable claim under the Act.

Sovereign Immunity is Expressly Waived Under the Texas Whistleblower Act.

13. The Texas Whistleblower Act – Texas Government Code Chapter 554

(the “Whistleblower Act”) – expressly provides for a waiver of sovereign

immunity. 9 In fact, the Texas Supreme Court in State v. Lueck found that,

fundamentally, in a Whistleblower Act claim, there are two jurisdictional

9

See TEX. GOV’T CODE § 554.0035. (“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.”).

Appellee’s Brief – Page 8

requirements to be pled to show waiver of governmental immunity under the Act –

those requirements are that the plaintiff must plead he was/is a public employee

and a violation of the Act. 10 Appellee has done both – he pled he was a public

employee11 and as discussed in more detail below, pled a viable claim under the

Act.

Appellee Pled a Viable Claim Under the Texas Whistleblower Act.

14. While noting the two (2) fundamental requirements for a waiver of

sovereign immunity, the Texas Supreme Court in Lueck also noted that the mere

reference to the Whistleblower Act alone is insufficient to confer jurisdiction and

that the elements of a violation of the Whistleblower Act must be pled. 12 The

Whistleblower Act provides, in part:

(a) A state or local governmental entity may not suspend or terminate the

employment of, or take other adverse personnel action against, a public

employee who in good faith reports a violation of law by the employing

10

State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009) (“We agree with Lueck and the court

of appeals that there are but two jurisdictional requirements under section 554.0035. For

the government's immunity to be waived, the plaintiff must (1) be a public employee, and

(2) allege a violation of this chapter.”) (citation omitted).

11

See Amended Petition, Clerk’s Record at 48, paragraph 8.

12

Lueck, 290 S.W.3d at 881 (“But it necessarily follows from this language that Lueck

must actually allege a violation of the Act for there to be a waiver from suit. Therefore,

the elements under section 554.002(a) must be considered in order to ascertain what

constitutes a violation, and whether that violation has actually been alleged. We conclude

that the elements of section 554.002(a) can be considered as jurisdictional facts, when it

is necessary to resolve whether a defendant has alleged a violation under the Act.”).

Appellee’s Brief – Page 9

governmental entity or another public employee to an appropriate law

enforcement authority.

(b) In this section, a report is made to an appropriate law enforcement

authority if the authority is a part of a state or local governmental entity or of

the federal government that the employee in good faith believes is

authorized to:

(1) regulate under or enforce the law alleged to be violated in the

report; or

(2) investigate or prosecute a violation of criminal law. 13

15. In this case, in the Amended Petition the Appellee pled that:

a. the Appellants are governmental entities within the meaning of the

Whistleblower Act,14

b. as discussed above, he was a public employee and employed by

Appellants,15

c. as encouraged by Appellants and acting in good faith, Appellee

reported the violation, or potential violation, of the law by the

Appellants to the FBI, 16 and

d. Appellee believed the FBI is an appropriate law enforcement authority

to investigate such violations of the law. 17

While the Court should construe all of these pled facts in Appellee’s Amended

Petition as true and in favor of jurisdiction, the Appellants offered no evidence to

13

TEX. GOV’T CODE §554.002.

14

Amended Petition, Clerk’s Record at page 47, paragraphs 4 and 5.

15

Id., page 48, paragraph 8.

16

Id., pages 49-50, paragraphs 10-12.

17

Id., page 50, paragraph 12.

Appellee’s Brief – Page 10

the contrary or tending to challenge any of these jurisdictional facts. Any

arguments they make to the contrary are just that – arguments – and are not

evidence.18

Appellee’s Pleading Alleges Exhaustion of His Administrative Remedies.

16. Appellants admit Appellee has pled that he submitted his

whistleblowing report to the FBI and to the Texas State University System’s Office

of Internal Audit via an online reporting platform. Appellants also assert, with

absolutely no factual basis to support it, that Appellee failed to notify his

employers of the alleged retaliatory conduct underlying his current suit against

them within the timeframe mandated by the Whistleblower Act and therefore he

has failed to exhaust his administrative remedies for his Whistleblower Act claim

and the Court lacks jurisdiction.

17. However, despite the Appellants’ assertions to the contrary, the

Appellee did in fact plead that he timely exhausted his administrative remedies.19

The Appellants suggest the Amended Petition suggests Appellee only complained

to the Appellants about the suspected criminal violations and did not pursue

administrative remedies for the retaliatory conduct. Appellants ask this Court to

18

See Kearney, footnote 1, supra.

19

See e.g., Amended Petition, Clerk’s Record at page 54, paragraph 18 and at page 56,

paragraph 24.

Appellee’s Brief – Page 11

ignore paragraph 24 of the Amended Petition where Appellee states:

[t]he [Appellee] appropriately initialed [sic - initiated] his administrative

remedies. Appellee invoked the Texas State University grievance procedure

within 90 days after the adverse employment action was discovered and

timely filed suit.20

Even without liberally construing the Amended Petition in Appellee’s favor and in

favor of jurisdiction, Appellee has alleged reporting the illegal activity to the FBI

and Office of Internal Audit AND then reporting the adverse personnel action

resulting from such reports in accordance with the Appellants’ grievance

procedure. Appellee adequately pled exhaustion of his administrative remedies.

Pleading Specific Dates is Not Required.

18. The Appellants assert that the Court lacks jurisdiction because the

Appellee did not allege specific dates in his Amended Petition. The Appellants

rely on the University of Texas v. Poindexter case which is NOT a Whistleblower

Act case and does not revolve around an alleged failure to exhaust administrative

remedies. Instead, the Poindexter case notes that “a charge filed with the EEOC

must specify the date(s) on which the allegedly unlawful employment practice(s)

occurred” which allows the EEOC “to calculate whether the charge’s 180-day

filing deadline has passed.” The Poindexter case even noted that the EEOC charge

form has a “Continuing Action” box for discrimination that “manifests itself over

20

See id., page 56, paragraph 24.

Appellee’s Brief – Page 12

time, rather than a series of discrete acts.” The Appellants are now asking the

Court to conclude that the EEOC form requirement to include dates somehow

transfers over to Whistleblower complaints that have no such requirement or form.

In the unlikely event that the Court finds it lacks jurisdiction without specific dates,

the Appellee respectfully requests the Court identify such dates required to be pled

for jurisdictional purposes under the Whistleblower Act and grant him leave to

amend to meet such alleged deficiencies. 21

Appellants Did Not Make the Specific Denial Required Under TRCP 54.

19. Further and in the alternative, the Appellee has pled that all conditions

precedent to his right to recover have occurred or have been performed under Rule

54 of the Texas Rules of Civil Procedure. As discussed above, Appellee also pled

he appropriately initiated his administrative remedies and that he invoked the

Texas State University grievance procedure within 90 days after the adverse

employment action was discovered and that he timely filed suit. Appellee was

then further retaliated against for filing suit. The Appellants offered no evidence to

the contrary and the Appellants’ answer does not include a specific affirmative

limitations defense or denial. Appellants pled that “Defendants assert the

This relief was also requested in the Trial Court. See e.g., Response to Defendants First

21

Amended Plea to the Jurisdiction, Clerk’s Record, page 100, paragraph 20.

Appellee’s Brief – Page 13

applicable statute of limitations to Plaintiff’s claims, to the extent that it applies.”22

But those types of generic allegations are not the type of specific denials required

by Rule 54. In the Truss World case the court found that the defendant must

specifically state in what way the claims are barred by limitations. 23 Absent a

proper and specific denial by Appellants, the Appellee’s Rule 54 pleading

eliminates the requirement for Appellee to plead further.

Appellee’s Pleading Does Not Establish His Claim is Time-Barred.

20. The Appellants also seem to take the position that the jurisdictional

pleading requirements include affirmatively pleading any and every specific fact

that might be raised by a Defendant by way of an affirmative defense, including

the statute of limitations. This is not required under Texas pleading rules. 24 The

Appellants did not bring a summary judgment and have offered no evidence to

support any alleged affirmative or limitations defense – Appellants just claim that

22

Defendant’s Original Answer and Defenses, Clerk’s Record, Page 15, paragraph 3.

23

See Truss World, Inc. v, ERJS, Inc., 284 S.W.3d 393, 396-97 (Tex. App.—Beaumont

2009, pet. denied), see also, Skinny’s Inc. v. Hicks Brothers Construction Co., 602

S.W.2d 85, 90 (Tex. Civ. App.—Eastland 1980, no writ).

24

See e.g., Miranda, 133 S.W.3d at 230 (in response to the dissent’s position that

additional supporting facts must be pled, the Texas Supreme Court noted: “The pleading

hurdle he seeks to erect would be groundbreaking, indeed, extending beyond current

requirements under our rules of civil procedure and case law. Rules 45 and 47 require

that the original pleadings give a short statement of the cause of action sufficient to give

the opposing party fair notice of the claim involved. Rule 45 does not require that the

plaintiff set out in his pleadings the evidence upon which he relies to establish his

asserted cause of action.”).

Appellee’s Brief – Page 14

the Appellee is required to plead around it or Appellee’s claims must be dismissed.

The Appellee pled that he timely filed his administrative grievance for the

Appellants’ retaliatory conduct and that he timely filed suit following the

conclusion of that process – which is an internal process for which the Appellants

have access to the very information they claim Appellee was required to plead.

21. In addition, the Appellants assert suit was not timely filed

emphasizing the complaint to the FBI was made in August of 2023. However, the

date the complaint was made is not at all controlling. The Whistleblower Act does

provide for a presumption that retaliatory conduct is as a result of the

whistleblower complaint if filed within 90 days, but that provision does not control

timing of the filing of the petition for limitations purposes. The Whistleblower

Act’s limitations period runs from when the retaliatory personnel action occurred

or was discovered 25 by the plaintiff through reasonable diligence and the time

period is also extended by invocation of the grievance process. 26 Despite

Appellants’ arguments to the contrary, the 90-day limitations period does not begin

to run when Appellee’s complaint was made to the FBI. The Appellee pled he

25

Appellee is aware that the immediate past President of Texas State University testified

in a whistleblower case that she was advised by counsel not to take any action involving

the whistleblower until after the 90-day period had expired. Intentionally waiting until

after the 90-day period has run before initiating adverse personnel actions, does not

absolve Appellants of liability under the Act by creating an automatic limitations defense.

26

TEX. GOV’T CODE §554.005 and 554.006 (emphasis added).

Appellee’s Brief – Page 15

pursued his administrative remedies and his suit was timely filed – Appellants

offered no evidence to the contrary.

Appellee’s Pleading Alleges Material Adverse Personnel Actions.

22. Further, the Whistleblower Act also requires the Appellee to plead his

employment was “suspended or terminated” or that Appellants took “other adverse

personnel action” against Appellee.27 The Appellants argue that the Court lacks

jurisdiction because the Appellee is still employed. This position ignores the plain

language of the Whistleblower Act that does not require suspension or termination

– only some “other adverse personnel action.” “Personnel action” is expressly

defined to mean “an action that affects a public employee’s compensation,

promotion, demotion, transfer, work assignment, or performance evaluation.” 28

The fact that a plaintiff might remain employed is not even remotely dispositive of

a Whistleblower Act claim. 29

23. For example, adverse personnel action can be any action that affects

the Appellee’s compensation, promotion, transfer, work assignment or

27

TEX. GOV’T CODE §554.002 (emphasis added).

28

Id. at 554.001(3).

29

See generally, Ward v. Lamar University, 484 S.W.3d 440 (Tex. App.—Houston [14th

Dist.] 2016, no pet.) (finding that evidence that certain job characteristics remained the

same after the report is not dispositive and a fact issue was created when Appellee’s

authority was significantly reduced even though her pay and job title remained the same).

Appellee’s Brief – Page 16

performance evaluation. 30 The Court can also consider effects on prestige,

opportunity for advancement, working conditions, income, and the ability to obtain

outside employment. 31 Adverse employment action can also include direct or

constructive termination, and lesser actions like reprimands, warnings, and missed

pay increases. 32

24. In this case the Appellee has alleged that as a result of his

Whistleblower Act complaint, the Appellants:

a. created a hostile work environment with the intent to force the

Appellee to resign,

b. constructively discharged Appellee,

c. subjected Appellee to a fabricated performance review with the

purpose of creating a pretext to demote or not promote Appellee,

d. excluded Appellee from networking opportunities,

e. sought to fire Appellee,

f. reduced Appellee’s pay,

g. denied Appellee a pay raise,

30

TEX. GOV’T CODE §554.001(3), see also, Montgomery County v. Park, 246 S.W.3d

610, 612 (Tex. 2007) (“We hold that a personnel action is adverse within the meaning of

the Whistleblower Act if it would be likely to dissuade a reasonable, similarly situated

worker from making a report under the Act.”).

31

See e.g., Ward, 484 S.W.3d at 446.

32

See Texas Department of MHMR v. Rodriguez, 63 S.W.3d 475 (Tex. App.—San

Antonio 2001, pet. denied); UTMB v. Hohman, 6 S.W.3d 767 (Tex. App.—Houston [1st

Dist.] 1999, pet. dismissed).

Appellee’s Brief – Page 17

h. denied Appellee promotional opportunities,

i. concocted poor performance evaluations for Appellee, and

j. limited Appellee’s employment benefits.33

Liberally construing the Appellee’s petition in favor of jurisdiction and taking the

allegations as a whole and as true, Appellee has pled adverse personnel actions

were taken against him as a result of his Whistleblower report to the FBI,

including, without limitation, pay-related actions. Appellee simply is not required

to plead or show he was actually terminated, or that he is no longer employed by

Appellants.

25. Under the proper review criteria, Appellee has pled sufficient facts to

support jurisdiction for his Texas Whistleblower Act claims.

B. Appellee pled facts to support a waiver of sovereign immunity for a

constitutional free-speech retaliation claim and material adverse

personnel actions.

Appellants are Not Immune From Appellee’s Free-Speech Retaliation Claims.

26. The Appellants offer no legal support for their apparent contention

that they are immune from suit for violations of Appellee’s free-speech rights.

Sovereign immunity does not bar a suit to vindicate constitutional rights. 34

33

See e.g., Amended Petition, Clerk’s Record, pages 51-53, paragraphs 13 through 16

and page 54, paragraph 20.

34

See e.g., Klumb v. Houston Municipal Employees Pension System, 458 S.W.3d 1, 13

Appellee’s Brief – Page 18

Appellee Pled a Viable Free-Speech Retaliation Claim.

27. To present a valid constitutional free-speech claim, the Appellee was

required to plead that:

a. he suffered an adverse employment decision;

b. his speech involved a matter of public concern;

c. his interest in commenting on matters of public concern outweighed

the Appellants’ interest in promoting efficiency; and

d. his speech motivated the adverse employment decision.35

In this case, Appellee pled that:

a. he suffered adverse employment decisions; 36

b. his speech (complaint of wrongdoing) involved a matter of public

concern; 37

c. acting in good faith, he reported the violation or potential violation of

the law by the Appellant to the FBI, his interest in commenting on

matters of public concern outweighed the Appellants’ interest in

(Tex. 2015) (“While it is true that sovereign immunity does not bar a suit to vindicate

constitutional rights, immunity from suit is not waived if the constitutional claims are

facially invalid,”) (citation omitted).

35

See e.g., Caleb v. Carranza, 518 S.W.3d 537, 544 (Tex. App.—Houston [1st Dist.]

2017, no pet.).

36

See paragraphs 22 through 24 above.

37

See e.g., Scott v. Godwin, 147 S.W.3d 609, 618 (Tex. App.—Corpus Christi 2004, no

pet.) (“Exposure of official misconduct is generally of great consequence to the public.

There is perhaps no subset of ‘matters of public concern’ more important, for purposes of

First Amendment protection of speech of public employees, than bringing official

misconduct to light.”) (citations omitted).

Appellee’s Brief – Page 19

promoting any potential loss of efficiency; 38 and

d. his speech motivated the adverse employment decisions.39

Taking the allegations in the Amended Petition as true and construing it liberally in

Appellee’s favor and in favor of jurisdiction, Appellee has pled a viable First

Amendment Retaliation claim.

Appellee Pled Adverse Personnel Actions Taken Against Him in Retaliation

for Exercising his Free-Speech Rights.

28. Taking the allegations in the Amended Petition as true and liberally

construing them in favor of jurisdiction, the Appellee has pled adverse personnel

actions were taken against him as a result of his exercise of his free-speech rights.40

Suit was Properly Brought Against Entities v. Individuals.

29. Again, without waiver of the objection based on this issue being

raised in post-hearing briefing, Appellants did not specifically include the

arguments in their Plea to the Jurisdiction. The Appellants also seemed to argue

that Appellee must bring his claims against individuals as opposed to the

governmental entity. In that regard, the Appellants referred the Court to City of El

38

See e.g., Amended Petition, Clerk’s Record at pages 50 through 53, paragraphs 11

through 15.

39

See id., 53 and 54, paragraphs 16, 17, 19, and 20.

40

See paragraphs 22 through 24 above.

Appellee’s Brief – Page 20

Paso v. Heinrich.41 In Heinrich the Appellee sued both the governmental entities

and individual governmental actors and the Appellants filed a Plea to the

Jurisdiction claiming immunity.42 Heinrich was not a Whistleblower Act case or a

free-speech case arising out of a Whistleblower complaint. In that case, Heinrich

conceded that the governmental entities were immune from suit, but argued the

Declaratory Judgment Act claims against the individuals were not. 43 The Court

then addressed the following questions to “Proper Parties”:

We have been less than clear regarding the permissible use of a declaratory

remedy in this type of ultra vires suit. Must it be brought directly against the

state or its subdivisions? Or must it be brought against the relevant

government actors in their official capacity? 44

The Court found that in ultra vires cases seeking a declaratory remedy, “. . . it

follows that these suits cannot be brought against the state, which retains

immunity, but must be brought against the state actors in their official capacity.”45

The Court ultimately found some of the claims against the individual Appellants

were barred by sovereign immunity and some were not.

41

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009).

42

Id. at 370.

43

Id. at 370-72.

44

Id. at 373.

45

Id.

Appellee’s Brief – Page 21

30. In this case, the Appellants offered no evidence to support a claim that

any actions complained of by Appellee were not lawfully authorized or ultra vires

actions for which they are not responsible and may have immunity. The Appellee

did not bring suit under the Texas Declaratory Judgments Act rather, brought suit

under the Texas Whistleblower Act where immunity is waived for those claims.

Further, the Appellants have not shown how Heinrich is directly applicable to this

case, offered no evidence to support a claim that the Appellee’s claims are ultra

vires or barred by immunity, have no pleading to support such a position, and have

ignored the Appellee’s petition. 46 Appellants simply have not shown there is any

legal jurisdictional pleading defect in Appellee’s petition in this regard justifying

dismissal of the Appellees’ case in its entirety for lack of jurisdiction.

1983 Claim Issues

31. Without waiver of the objection to presentation of arguments not

contained in their Plea to the Jurisdiction, Appellants mentioned immunity issues

related to 1983 claims. Appellee has not pled a direct claim under 42 U.S.C. 1983.

However, even if Appellee did decide to bring a 1983-based claim, Appellants

have not shown a specific pleading defect that would preclude such a claim or one

that could not be cured in an amended pleading.

46

Amended Petition, Clerk’s Record, pages 54 and 55, paragraphs 19 and 22.

Appellee’s Brief – Page 22

C. The Appellee is not asserting a generic “tort” claim.

32. The Appellee has stated on the record that any clarification Appellants

are seeking on the Amended Petition should be brought by way of special

exceptions,47 and confirmed that Appellee was not making a generic tort claim.48

D. Dismissal with prejudice is not appropriate at this stage because if

Appellee’s pleading is found to be insufficient, Appellee must be given

an opportunity to amend.

33. Lastly, if in the unlikely event the Court finds that the Appellee’s

pleadings do not contain sufficient facts to affirmatively demonstrate the Court’s

jurisdiction, but do not affirmatively demonstrate incurable defects in jurisdiction,

the issue is one of pleading sufficiency and the Appellee should be afforded the

opportunity to amend. Appellee again requests that the Court identify the pleading

deficiency(ies), if there are any, and allow Appellee the opportunity to amend.

47

While a plea to the jurisdiction can be used to challenge jurisdiction, a claim that the

Appellee has asserted an undetermined tort claim is more appropriately challenged by

special exception with the opportunity to amend if sustained. See e.g., Texas Dept. of

Corrections v. Herring, 513 S.W.2d 6, 9-10 (Tex.1974). “Herring's pleadings were

insufficient; that is, they failed to state a cause of action. The Department of Corrections

leveled no special exceptions to Herring's pleadings and thus no opportunity to amend his

pleadings to state a cause of action was afforded. Had the Department of Corrections

filed special exceptions which were sustained by the court, Herring would have had an

opportunity to amend as a matter of right. But only after a party has been given an

opportunity to amend after special exceptions have been sustained may the case be

dismissed for failure to state a cause of action.”) (citations omitted)

48

Reporter’s Record, page 32, lines 3 through 11.

Appellee’s Brief – Page 23

34. Appellants argue that if the Court finds there is a pleading defect, the

Appellee should not be allowed the opportunity to amend to meet the defect. In

other words, the Appellants argued that the Appellee had time to amend his

petition before the hearing and therefore should not be given an opportunity to

amend even IF this Court finds the pleading is insufficient. The Appellants

referred the Court to Haddix v. American Zurich Ins., 49 for the general proposition

that the Appellee waived his opportunity to amend by not amending his petition

after the Plea to the Jurisdiction was filed. However, in Haddix the court found

that, “Haddix did not amend or request leave to amend his pleadings.” 50 In this

case, the Appellee specifically requested leave to amend his petition IF the Court

finds his pleadings are insufficient.51

35. The Appellants also referred the Court to the Harris County v. Sykes52

case where the Texas Supreme Court addressed the issue about whether the

dismissal should be with prejudice – the Court found it should have been, but also

noted that “[b]efore dismissing the case, the trial court allowed Sykes to file an

49

Haddix v. American Zurich Ins., 253 S.W.3d 339 (Tex. App.—Eastland 2008, no pet.)

(“While the general rule expresses a preference for allowing an amendment, a plaintiff

can waive this opportunity through inaction.”).

50

Id.

51

See Clerk’s Record, page 87, Appellee’s Response at paragraphs 2(f), 20, and 22.

52

Harris County v. Sykes, 136 S.W.3d 635 (Tex. 2004).

Appellee’s Brief – Page 24

amended petition, after which the Court made a final adjudication . . .” 53 The

Sykes case does NOT stand for the proposition that Appellee cannot be allowed to

amend his petition if the Court finds it is defective in some respect.

36. More importantly, after Haddix and Sykes, the Texas Supreme Court,

in Texas A&M University System v. Koseoglu, 54 addressed essentially the same

argument Appellants are making in this case. The Supreme Court noted and held:

It is true that a plaintiff deserves "a reasonable opportunity to amend"

unless the pleadings affirmatively negate the existence of jurisdiction. Thus,

the issue is whether Koseoglu has already been afforded that opportunity. If

not, we agree that he deserves the opportunity if his pleadings can be cured.

Koseoglu argues a plaintiff is not required to amend his pleadings

until they are determined by a court to be deficient. Thus, he contends he

should now be provided an opportunity to amend. Texas A&M, on the other

hand, argues the plaintiff's opportunity to amend should come after the

governmental entity files its plea to the jurisdiction, which puts the Appellee

on notice of alleged defects in his pleadings, but before the trial court takes

any definitive action. Accordingly, Texas A & M contends, because

Koseoglu had four months to amend his pleadings after it filed its

jurisdictional plea, no further opportunity is warranted. Otherwise, Texas

A&M argues, suits against governmental entities could be appealed at least

twice before final judgment—once to obtain a reversal and remand, and a

second time after the remand is ordered.

The court of appeals sided with Koseoglu, concluding "a plaintiff may

stand on his pleadings in the face of a plea to the jurisdiction unless and until

a court determines that the plea is meritorious." Thereafter, the court of

appeals held, the plaintiff must be given a reasonable opportunity to amend”

his pleadings to attempt to cure the jurisdictional defects found unless the

pleadings are incurably defective. Thus, the court of appeals concluded,

53

Id. at 639 (emphasis added).

54

Texas A&M University System v. Koseoglu, 233 S.W.3d 835 (Tex. 2007).

Appellee’s Brief – Page 25

Koseoglu has not been given a reasonable opportunity to amend his

pleadings because the trial court never found merit in Texas A&M's

jurisdictional plea.

On this point, we generally agree with the court of appeals. Texas

A&M's proposed rule would essentially allow governmental entities the

unjust advantage of being not only a litigant, but also the judge of the

plaintiff's pleadings. We decline to adopt such a rule. Thus, we agree that

Koseoglu deserves the opportunity to amend his pleadings if the defects can

be cured. 55

37. The Texas Supreme Court has rejected the very argument Appellants

are making. This Court has not found that Appellee’s Amended Petition is

insufficient in any particular way, but if it does, it should identify the deficiency

and provide Appellee the opportunity to amend to address the issue, unless such

would be impossible to do. The Appellants have not shown that, if the alleged

defects are found by this Court, that such defects are incurable by amendment.

55

Id. at 839-40 (citations omitted). But see, Texas Dep’t Crim Justice-Comm. Justice

Assistance Div. v. Campos, 384 S.W.3d 810 (Tex. 2012) (“However, if a governmental

entity has asserted in the trial court that it is immune and a Appellee fails to allege or

show facts demonstrating a waiver of immunity after having a reasonable opportunity to

conduct discovery directed to the issue and amend the pleadings, then the case should be

dismissed. In this case the Appellees amended their petition three times over a period of

nine years after TDCJ filed its first plea to the jurisdiction. Prior to the Appellees' last

amendment the court of appeals had noted “it is unclear from the pleadings how the

surveillance cameras and rooms in the SATF facility may have been used, as opposed to

not used, and thereby caused an injury.” The Appellees have had a reasonable

opportunity to engage in discovery on the immunity question and amend their pleadings,

but nevertheless have not alleged or shown facts demonstrating their injuries were caused

by TDCJ's use of tangible property.”) (citations omitted). In the instant case, the

Appellants refused to answer discovery, so not only has the Appellee not had a

reasonable opportunity to amend, the Appellee has not even been allowed relevant

discovery.

Appellee’s Brief – Page 26

PRAYER FOR RELIEF

For all of the reasons set out above, Appellee/Plaintiff, Stuart Patrick

Wilkinson, respectfully prays that the Court: (i) deny the relief requested by the

Appellants/Defendants, Texas State University and Texas State University

System, (ii) affirm the Trial Court’s ruling, (iii) award Appellee/Plaintiff his

reasonable and necessary costs and expenses incurred in responding to this

original proceeding, and (iv) award Appellee/Plaintiff all such other and further

relief, whether in law or in equity to which Appellee/Plaintiff may show himself

to be entitled.

Respectfully submitted,

McGlothlin Junkin & Wilde, PC

133 W. San Antonio, Suite 400

San Marcos, TX 78666

512/392-7510

512/392-7520 (fax)

david@mcglothlinlaw.com

____________________________________

David Junkin

State Bar No. 11058020

Attorney for Appellee/Plaintiff,

Stuart Patrick Wilkinson

Appellee’s Brief – Page 27

CERTIFICATE OF COMPLIANCE

Based on a word count run in Microsoft Word, this brief contains 7,230

words, including some of the portions of the brief exempt from the word count

under Texas Rule of Appellate Procedure 9.4(i)(1).

___________________________________

David Junkin

CERTIFICATE OF SERVICE

I hereby certify that on May 27, 2025, a true and correct copy of the

foregoing brief was served by email, through the Texas eFile system, to counsel of

record as set forth below:

Rachel L. Behrendt

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Rachel.Behrendt@oag.texas.gov

___________________________________

David Junkin

Appellee’s Brief – Page 28

TAB

A

TAB

B

ALSO SEE

ATTACHMENTS

Caleb v. Carranza, 518 S.W.3d 537 (Tex. App. 2017)

518 S.W.3d 537 We take the appellants' pleadings as true for

purposes of this appeal. The dispute arises from

Mable CALEB, Jackie Anderson, Patrick an investigation by the Houston Independent

Cockerham, Diann Banks, and Herbert School District into allegations of employee

Lenton, Appellants misconduct.1 Mable Caleb was the principal of

v. Key Middle School when, in the summer of 2009,

Richard A. CARRANZA, Superintendent of she was appointed principal of Kashmere High

the Houston Independent School District, School. Caleb was asked to remain as transitional

Appellee principal at Key until a permanent replacement

could be found. After a replacement principal was

NO. 01-15-00285-CV appointed at Key, Terry Grier became the

superintendent of HISD. Grier replaced the newly

Court of Appeals of Texas, Houston (1st appointed Key principal with another person,

Dist.). resulting in an outcry and demonstrations from

the community.

Opinion issued March 30, 2017

On October 31, 2009, after being relieved of all

Laurence Watts, WATTS & COMPANY

responsibilities relating to Key, Caleb moved all of

LAWYERS, LTD., P.O. Box 2214, Missouri City,

her personal belongings and some school

TX 77459, for Appellant.

property from Key to Kashmere. She was assisted

by appellant

Arturo G. Michel, John M. Hopkins, THOMPSON

& HORTON LLP, 3200 Southwest Freeway, Suite

[518 S.W.3d 541]

2000, Houston, TX 77027, Holly G. McIntush,

400 West 15th Street, Suite 1430, Austin, TX Herbert Lenton, Key's operations manager, in

78704, for Appellee. accordance with HISD procedures. In late

November 2009, Grier hired a law firm to

Panel consists of Justices Bland, Massengale, and

investigate the transfer of property, which by then

Lloyd.

had attracted some media attention. The

investigation focused on the transfer of property

OPINION

from Key to Kashmere and on allegations that

teachers at Key provided students with actual test

Michael Massengale, Justice

problems to practice for standardized tests in

This is an appeal from the dismissal of a lawsuit order to increase their scores.

against the former superintendent of the Houston

The attorney-investigators questioned Caleb and

Independent School District. The appellants, who

Lenton, as well as others connected to Caleb,

are former employees of the school district,

including appellants Jackie Anderson, Patrick

sought injunctive and declaratory relief stemming

Cockerham, and Diann Banks. Anderson was a

from an investigation that culminated in a

union representative and friend of Caleb who

recommendation to terminate their employment.

served as the Special Education Department Chair

The pleadings do not allege a facially valid at Key from 2008 to 2009. Cockerham had been

challenge to any constitutional right, and they are an aide to Anderson at Key, and he transferred to

barred by governmental immunity. As such, the Kashmere with Caleb. Banks had been a math

trial court properly granted the plea to the teacher at Key from August 2005 through June

jurisdiction. We affirm. 2010.

Background Upon completion of the investigation, the law

firm reported its findings to HISD. Grier shared

Caleb v. Carranza, 518 S.W.3d 537 (Tex. App. 2017)

the findings with the media, the public, and the While the appeal was pending in this court, Caleb

Texas Education Agency. Based on the report, settled her claims against Grier, and she filed an

Grier terminated Caleb in April 2010, and he agreed motion to dismiss her appeal, which we

proposed termination of Cockerham and now grant. See TEX. R. APP. P. 42.1(a)(1). The

nonrenewal of the one-year contracts of Anderson granting of this motion leaves Anderson,

and Banks. Upon instruction from Grier, Lenton's Cockerham, Banks, and Lenton as the remaining

supervisor recommended that he be terminated. appellants. While this appeal has been pending,

Administrative hearings cleared Anderson and Grier was replaced by Richard A. Carranza as

Cockerham, and the hearing officers HISD superintendent, who has been substituted

recommended that they not be dismissed from as the appellee. TEX. R. APP. P. 7.2(a).

employment. Lenton also sought an

administrative hearing, but the appellate record Analysis

does not indicate the results of that hearing.

Although Banks was cleared of allegations that In a single issue, the appellants argue that Grier

she participated in the standardized testing was not immune from suit because

scandal, she resigned due to an unpleasant work

environment. [518 S.W.3d 542]

Caleb, Anderson, Cockerham, Banks, and Lenton he violated the state constitution, acting outside

filed suit against numerous defendants, including his legal authority and his lawful discretion as

Grier in his official capacity. Among the superintendent of HISD. We review de novo the

defendants, this appeal pertains only to Grier. The trial court's ruling on a plea to the jurisdiction.

live pleading at the time the claims against Grier See, e.g. , Klumb v. Hous. Mun. Emps. Pension

were dismissed was the fifth amended petition. Sys. , 458 S.W.3d 1, 8 (Tex. 2015).

That petition alleged that Grier violated various

"Sovereign immunity requires the state's consent

provisions of the Texas Constitution when he

before it can be sued." Hall v. McRaven , 508

"terminated" the appellants "based on a report he

S.W.3d 232, 232 (Tex. 2017). "Governmental

commissioned" without giving them "the

immunity operates like sovereign immunity to

opportunity to refute the claims contained within

afford similar protection to subdivisions of the

before making them public."

State, including counties, cities, and school

The appellants sought a declaration that their districts." Harris Cty. v. Sykes , 136 S.W.3d 635,

constitutional rights were violated by Grier. They 638 (Tex. 2004). "[I]n certain narrow instances, a

requested an injunction preventing Grier from suit against a state official can proceed even in the

violating their constitutional rights and requiring absence of a waiver of immunity if the official's

him to reinstate them "to positions of actions are ultra vires. " Hall , 508 S.W.3d at 232.

employment occupied or reasonably comparable "An ultra vires action requires a plaintiff to

to those respectively occupied before November ‘allege, and ultimately prove, that the officer acted

12, 2009, with all attendant benefits" and to without legal authority or failed to perform a

expunge the report from their personnel records. purely ministerial act.’ " Id. (quoting City of El

The appellants also sought recovery of attorney's Paso v. Heinrich , 284 S.W.3d 366, 372 (Tex.

fees and costs. 2009) ). "The basic justification for this ultra

vires exception to sovereign immunity is that

Grier filed a plea to the jurisdiction. He did not ultra vires acts—or those acts without authority—

challenge any jurisdictional facts. Instead, he should not be considered acts of the state at all."

argued that he was immune from the claims. The Id.

trial court granted the plea and dismissed the

claims against Grier with prejudice. That order "[A] government officer with some discretion to

was appealed. interpret and apply a law may nonetheless act

Caleb v. Carranza, 518 S.W.3d 537 (Tex. App. 2017)

‘without legal authority,’ and thus ultra vires , if man, or set of men, is entitled to exclusive

he exceeds the bounds of his granted authority or separate public emoluments, or privileges." TEX.

if his acts conflict with the law itself." Hous. Belt CONST. art. 1, § 3. The appellants contend that

& Terminal Ry. Co. v. City of Hous. , 487 S.W.3d Lenton was subjected to "disparate treatment" as

154, 158 (Tex. 2016). Governmental immunity compared to other employees who participated in

thus does not bar "suits complaining of either an moving property from Key to Kashmere.3 The

officer's failure to perform a ministerial act or an appellants' brief contains no argument to support

officer's exercise of judgment or limited discretion an equal-protection claim by Anderson,

without reference to or in conflict with the Cockerham, or Banks.

constraints of the law authorizing the official to

act." Id. at 163. To establish a viable equal-protection claim under

the Texas Constitution, Lenton would have to

In this case, the appellants alleged that the prove he was "treated differently from others

"termination of their employment" and the similarly situated." Klumb , 458 S.W.3d at 13.

commissioning and publication of the However, there is a fundamental inconsistency

investigation report violated their rights under between that legal standard and a single public

the Texas Constitution. An allegation that a employee's allegation that he has been wrongly

government officer violated the Texas terminated from employment. Cf. Engquist v.

Constitution is an allegation that the officer acted Oregon Dept. of Agr. , 553 U.S. 591, 605, 128

ultra vires , that is, in conflict with the law S.Ct. 2146, 2155, 170 L.Ed.2d 975 (2008)

constraining his discretion. See id. Nevertheless, (applying federal Equal Protection Clause); see

when a plaintiff sues to vindicate a constitutional also Klumb , 458 S.W.3d at 13 n.8

right, "immunity from suit is not waived if the (acknowledging that federal equal-protection

constitutional claims are facially invalid." Klumb , authorities may be persuasive authority in the

458 S.W.3d at 13 (citing Andrade v. NAACP of context of state equal-protection claims).

Austin , 345 S.W.3d 1, 11 (Tex. 2011) ). "[E]mployment decisions are quite often

subjective and individualized, resting on a wide

The appellants alleged that "the sole reason for array of factors that are difficult to articulate and

the termination of their employment" was their quantify." Engquist , 553 U.S. at 604, 128 S.Ct. at

unwillingness to comply with a request by Grier 2154. Moreover, "recognition of a class-of-one

and his investigators to falsely implicate Caleb on theory of equal protection in the public

various allegations and to implicate another employment context—that is, a claim that the

person for cheating on standardized tests. The State treated an employee differently from others

appellants also complained that their termination for a bad reason, or for no reason at all—is simply

was based on a report commissioned by Grier, contrary to the concept of at-will employment."

which he published before giving them an Id. at 606, 128 S.Ct. at 2156. We therefore

opportunity to refute its contents. The appellants conclude the appellants' petition failed to plead a

contend that these acts violated the Texas Bill of facially valid equal-protection claim by alleging

Rights, Sections 3 (equal rights), 8 (freedom of that Lenton, alone, suffered an adverse

speech), and 19 (due course of law).2 employment consequence as compared to other

employees.

I. Equal protection

II. Free speech

The Texas Constitution provides that all people

"have equal rights, and no The Texas Constitution provides: "Every person

shall be at liberty to speak, write or publish his

[518 S.W.3d 543] opinions on any subject, being responsible for the

abuse of that privilege; and no law shall ever be

passed curtailing the liberty of speech or of the

Caleb v. Carranza, 518 S.W.3d 537 (Tex. App. 2017)

press." TEX. CONST. art. I, § 8. The appellants' As public employees, the appellants also would be

argument regarding free-speech violations is required to establish that they spoke as citizens,

primarily focused on public statements by Caleb, rather than as employees pursuant to their official

who has dismissed her appeal. The only free- duties. While "the First Amendment protects a

speech argument relating to the remaining public employee's right, in certain circumstances,

appellants is that they had a constitutionally to speak as a citizen addressing matters of public

protected right to refuse to "testify falsely" against concern," Garcetti v. Ceballos , 547 U.S. 410, 417,

other employees. 126 S.Ct. 1951, 1957, 164 L.Ed.2d 689 (2006), not

all speech by public employees is constitutionally

Other than quoting Section 8 of the Texas Bill of protected. When "public employees make

Rights, the appellants offer no legal argument or statements pursuant to their official duties, the

authority for their contention that they alleged a employees are not speaking as citizens for First

facially valid free-speech claim. In particular, the Amendment purposes, and the Constitution does

appellants offer no arguments based on the text, not insulate their communications from employer

history, or purpose of Section 8 that it provides discipline." Id. at 421, 126 S.Ct. at 1960. However,

them any greater protection in this context than "the mere fact that a citizen's speech concerns

that provided by the First Amendment. As such, information acquired by virtue of his public

we may rely upon persuasive authorities applying employment does not transform that speech into

free-speech protections under both the federal employee—rather than citizen—speech." Lane v.

and Texas constitutions. See, e.g. , Tex. Dept. of Franks , ––– U.S. ––––, 134 S.Ct. 2369, 2379,

Transp. v. Barber , 111 S.W.3d 86, 106 (Tex. 189 L.Ed.2d 312 (2014). Accordingly, the critical

2003) ; Davenport v. Garcia , 834 S.W.2d 4, 40 question is "whether the speech at issue is itself

(Tex. 1992) (Hecht, J., concurring) ("When state ordinarily within the scope of an employee's

and federal provisions overlap or correspond, duties, not whether it merely concerns those

state law, as well as federal law and the duties." Id.

[518 S.W.3d 544] The appellants' claim for retaliation against their

exercise of free-speech rights is facially invalid,

law of other states, may be helpful in analyzing because their pleadings establish that the

their proper application."). "speech" at issue was made pursuant to their

official duties. In their petition, they suggested

A governmental employee's speech may be that they exercised free speech when they refused

entitled to constitutional protections. See, e.g. , to "falsely implicate Caleb on various allegations"

Turner v. Perry , 278 S.W.3d 806, 816 (Tex. or to implicate another employee for cheating on

App.—Houston [14th Dist.] 2009, pet. denied) ; standardized tests. But they also alleged that they

Price v. Tex. Alcoholic Beverage Com'n , No. 01- were ordered by HISD officials to take part in

12-01164-CV, 2014 WL 3408696, at *6 (Tex. those interviews. Furthermore, the appellants

App.—Houston [1st Dist.] July 10, 2014, pet. alleged facts that show that these meetings were

denied) (mem. op.). To prevail on a constitutional directly related to their employment. The

free-speech retaliation claim, the appellants interviews concerned allegations of cheating on

would be required to establish that: (1) they standardized tests and misappropriation of school

suffered an adverse employment decision; (2) property. Accordingly, it is undisputed that the

their "speech" involved a matter of public speech (or refusal to speak) at issue was made

concern;4 (3) their interest in commenting on within the chain of command and that it was

matters of public concern outweighed their related to the appellants' jobs, which are both

employer's interest in promoting efficiency; and factors that previously have been considered in

(4) their speech motivated the adverse determining that speech was made as an

employment decision. See Beattie v. Madison employee and not as a citizen. See, e.g. , Davis v.

Cty. Sch. Dist. , 254 F.3d 595, 601 (5th Cir. 2001). McKinney , 518 F.3d 304, 313 (5th Cir. 2008).

Caleb v. Carranza, 518 S.W.3d 537 (Tex. App. 2017)

Moreover, assisting in an employer's investigation he was a public employee, that he was discharged,

into workplace theft is ordinarily within the scope that stigmatizing charges were made against him

of an employee's job duties, and a teacher's duties in connection with his discharge, that the charges

include ensuring compliance with standardized were false, that the charges were made public,

testing procedures. That the appellants were that he requested a name-clearing hearing, and

required to that the hearing was denied." Arrington , 970

F.2d at 1447 ; see Brantley , 365 S.W.3d at 106.

[518 S.W.3d 545] The "public charges must be so stigmatizing that

they create a ‘badge of infamy’ that destroys

speak in the course of their assistance in the plaintiffs' ability to obtain other employment."

investigation did not "mean [their] supervisors Arrington , 970 F.2d at 1447 (quoting Evans v.

were prohibited from evaluating [their] City of Dall. , 861 F.2d 846, 851 (5th Cir. 1988) );

performance." Garcetti , 547 U.S. at 422, 126 S.Ct. Brantley , 365 S.W.3d at 106.

at 1954. As such, the speech that the appellants

alleged as the basis for their employer's The appellants' petition affirmatively negated an

retaliation was made pursuant to their official element of their due-course-of-law claim. The

duties. It is therefore outside the ambit of free- appellants all alleged that they requested and

speech protection, and they have failed to allege a received a name-clearing hearing. Cockerham,

facially valid constitutional claim. Accord Caleb v. Anderson, and Banks alleged that they were

Grier , 598 Fed.Appx. 227, 236–37 (5th Cir. successful at their hearings and that the hearing

2015), cert. denied , ––– U.S. ––––, 135 S.Ct. officers found that the allegations against them

2813, 192 L.Ed.2d 849 (2015). were meritless and recommended that they be

retained. Lenton did not allege an outcome of his

III. Due course of law hearing. In addition, Banks alleged that she was

hired by another school district after her

The Texas Constitution provides: "No citizen of resignation, demonstrating that any charges

this State shall be deprived of life, liberty, leveled against her were not so stigmatizing as to

property, privileges or immunities, or in any prevent her from obtaining employment

manner disfranchised, except by the due course of elsewhere. Accordingly, each appellant failed to

law of the land." TEX. CONST. art. I, § 19. The allege a facially valid due-course-of-law claim.

appellants have offered no argument that Section

19 has an application to their claims that is Conclusion

substantively different than the due-process

protections of the Fourteenth Amendment. As There is no facially valid constitutional claim

such, our analysis is informed by authorities among the appellants' allegations. Accordingly,

applying the Fourteenth Amendment. See, e.g. , there is no actionable allegation that Grier's

Univ. of Tex. Med. Sch. at Hous. v. Than , 901 challenged actions were ultra vires so as to

S.W.2d 926, 929 (Tex. 1995). remove the shield of governmental immunity. We

affirm the judgment of the trial court.

"A public employer may unconstitutionally

deprive its employee of a liberty interest if it --------

discharges him under stigmatizing circumstances

without giving the employee an opportunity to Notes:

clear his name." Arrington v. County of Dall. , 1 For a more detailed discussion of the factual

970 F.2d 1441, 1447 (5th Cir. 1992) ; see Brantley

background, see Caleb v. Grier, No. H-12-0675,

v. Texas Youth Com'n , 365 S.W.3d 89, 106 (Tex.

2015 WL 1954678 (S.D. Tex. Apr. 29, 2015), and

App.—Austin 2011, no pet.). "To assert a claim for

Caleb v. Grier, No. H-12-0675, 2013 WL 2902785

the deprivation of this constitutional right to a

(S.D. Tex. Jun. 13, 2013), aff'd, 598 Fed.Appx.

name-clearing hearing, a plaintiff must allege that

Caleb v. Carranza, 518 S.W.3d 537 (Tex. App. 2017)

227, 237 (5th Cir. 2015) (per curiam), cert.

denied, ––– U.S. ––––, 135 S.Ct. 2813, 192

L.Ed.2d 849 (2015).

2 In addition to sections 3, 8, and 19, in their Fifth

Amended Petition the appellants alleged

violations of section 1 (freedom and sovereignty of

state). In their appellate brief, they suggest an

additional violation of section 12 (habeas corpus).

We confine our analysis to sections 3, 8, and 19,

as these are the only allegations analyzed in the

appellants' brief. See Tex. R. App. P. 38.1(i).

3 The appellants' brief also suggests that Lenton

was treated differently than two teachers who

"suppressed information" about cheating on

standardized tests yet were "rewarded with

continued employment." These factual allegations

were not a basis for the cause of action against

Grier pleaded in the trial court, and thus we need

not address those allegations, which were not

before the trial court and are being made for the

first time on appeal.

4 At least for purposes of the First Amendment,

the fact that the appellants in this case have

alleged retaliation based on their refusal to speak

does not affect the analysis. See Riley v. Nat'l

Fed'n of the Blind of N.C., 487 U.S. 781, 796–97,

108 S.Ct. 2667, 2677–78, 101 L.Ed.2d 669 (1988).

--------

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

284 S.W.3d 366 constitutional provisions. We affirm in part and

The CITY OF EL PASO, et al., Petitioners, reverse in part the court of appeals' judgment and

v. remand this case to the trial court for further

Lilli M. HEINRICH, Respondent. proceedings.

No. 06-0778.

Supreme Court of Texas. I

Argued November 13, 2007. Background

Decided May 1, 2009.

Lilli M. Heinrich is the widow of Charles D.

[284 S.W.3d 368] Heinrich, a member of the El Paso Police

Department who died in August 1985 from

Jennifer F. Callan, Laura P. Gordon, Asst. wounds received in the line of duty. Shortly after

City Attys., Michele Little Locke, John Lomax Charles died, the El Paso Firemen & Policemen's

Anderson, El Paso, Eric G. Calhoun, Richard J. Pension Fund began paying Heinrich monthly

Pradarits Jr., Travis & Calhoun, P.C., Dallas, survivor benefits equal to 100% of the monthly

Robert D. Klausner, Stuart A. Kaufman, Klausner pension her husband had earned.1 The parties

& Kaufman, P.A., Plantation, FL, for Petitioners. contest how those payments were apportioned.

The City of El Paso, the El Paso Firemen &

Stewart W. Forbes, Forbes & Forbes, El Paso, Policemen's Pension Fund ("the Fund"), the

for Respondent. Fund's Board of Trustees ("the Board"), and the

individual board members contend that the

Philip Durst, Deats Durst Owen & Levy, Fund's bylaws assigned only two-thirds of this

P.L.L.C., Austin, for Amicus Curiae Texas State payment to Heinrich, the other third being paid to

Association of Fire Fighters. her on behalf of her then-minor child. Heinrich,

on the other hand, contends that,

Kristofer S. Monson, Asst. Solicitor Gen., notwithstanding the bylaws, the Board voted to

Austin, for Amicus Curiae State of Texas. award her 100% of Charles' pension benefits in

her own right, as more fully explained below.

Chief Justice JEFFERSON delivered the

opinion of the Court. Accordingly, when in 2002 the Board

reduced the monthly payments to Heinrich by

"Sovereign immunity protects the State from

one-third after Heinrich's son turned 23, Heinrich

lawsuits for money damages." Tex. Nat. Res.

filed this lawsuit, alleging that petitioners violated

Conservation Comm'n v. IT-Davy, 74 S.W.3d

the statute governing the Fund by reducing her

849, 853 (Tex.2002). But "an action to determine

benefits retroactively. Heinrich sought both

or protect a private party's rights against a state

declaratory relief and an injunction restoring

official who has acted without legal or statutory

Heinrich to the "status quo from [the] date of the

authority is not a suit against the State that

illegal act." Petitioners filed pleas to the

sovereign immunity bars." Fed. Sign v. Tex. S.

jurisdiction asserting that governmental

Univ., 951 S.W.2d 401, 405 (Tex.1997). Today we

immunity shielded the governmental entities

examine the intersection of these two rules. We

from suit and that the individual board members

conclude that while governmental immunity

enjoyed official immunity. The trial court denied

the pleas, and petitioners filed an interlocutory

[284 S.W.3d 369]

appeal.

generally bars suits for retrospective monetary

The court of appeals affirmed, holding that "a

relief, it does not preclude prospective injunctive

party may bring a suit seeking declaratory relief

remedies in official-capacity suits against

against state officials who allegedly act without

government actors who violate statutory or

legal or statutory authority and such suit is not a

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

`suit against the state.'" 198 S.W.3d 400, 406. 432 (Tex.1994) (suit challenging state officials'

The court acknowledged that, if successful, construction of compulsory school-attendance

Heinrich would be entitled to past and future law)); see also Fed. Sign., 951 S.W.2d at 404 ("A

benefits, but held that Heinrich's suit made a private litigant does not need legislative

valid claim for her vested right to pension benefits permission to sue the State for a state official's

rather than money damages. Id. at 407. We violations of state law.") (citations omitted). We

granted the petition for review in order to clarify explained the rationale behind this exception to

the types of relief that may be sought without governmental immunity in Federal Sign:

legislative consent.2 50 Tex. Sup.Ct. J. 910 (June

22, 2007). A state official's illegal or unauthorized

actions are not acts of the State. Accordingly, an

II action to determine or protect a private party's

Discussion rights against a state official who has acted

A without legal or statutory authority is not a suit

Ultra Vires Claims against the State that sovereign immunity bars. In

other words, we distinguish suits to determine a

Petitioners contend that although Heinrich party's rights against the State from suits seeking

requests declaratory and equitable relief, her damages. A party can maintain a suit to

claim is essentially for past and future money determine its rights without legislative

damages, and that governmental immunity permission.

therefore bars her suit. As we said in Reata

Construction Corp. v. City of Dallas, Fed. Sign, 951 S.W.2d at 404 (citations

"`[s]overeign immunity protects the State from omitted).

lawsuits for money damages.' Political

subdivisions of the state ... are entitled to such On this basis, Heinrich argues that rather

immunity— than money damages, she seeks only equitable

and injunctive relief under the Uniform

[284 S.W.3d 370] Declaratory Judgment Act. That Act is a remedial

statute designed "to settle and to afford relief

referred to as governmental immunity— unless it from uncertainty and insecurity with respect to

has been waived." Reata, 197 S.W.3d 371, 374 rights, status, and other legal relations." TEX.

(Tex.2006) (citations omitted); see also Wichita CIV. PRAC. & REM.CODE § 37.002(b). It

Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 provides: "A person ... whose rights, status, or

n. 3 (Tex. 2003). We have said repeatedly that the other legal relations are affected by a statute,

Legislature is in the best position to waive or municipal ordinance, contract, or franchise may

abrogate immunity, "because this allows the have determined any question of construction or

Legislature to protect its policymaking function." validity arising under the ... statute, ordinance,

IT-Davy, 74 S.W.3d at 854 (citations omitted) contract, or franchise and obtain a declaration of

(collecting cases). rights, status, or other legal relations thereunder."

Id. § 37.004(a). The Act, however, does not

Heinrich concedes that the City, Fund, and enlarge a trial court's jurisdiction, and a litigant's

Board enjoy governmental immunity from suit, request for declaratory relief does not alter a suit's

but argues that because her claim alleges a underlying nature.3 IT-Davy, 74 S.W.3d

reduction in her benefits that was unauthorized

by law, it is not barred. This is so, she says, [284 S.W.3d 371]

because "[p]rivate parties may seek declaratory

relief against state officials who allegedly act at 855; State v. Morales, 869 S.W.2d 941, 947

without legal or statutory authority." Id. at 855 (Tex.1994). It is well settled that "private parties

(citing Tex. Educ. Agency v. Leeper, 893 S.W.2d cannot circumvent the State's sovereign immunity

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

from suit by characterizing a suit for money contract. We explained this distinction in W.D.

damages ... as a declaratory-judgment claim." IT- Haden Co. v. Dodgen:

Davy, 74 S.W.3d at 856 (citing W.D. Haden Co. v.

Dodgen, 158 Tex. 74, 308 S.W.2d 838, 842 [A]lthough [Epperson] ar[ose] out of [ ]

(1958)). contract transaction ... [it] appears to fall into the

class of cases projected by United States v. Lee,

Heinrich relies on State v. Epperson, 121 Tex. [106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882)].4

80, 42 S.W.2d 228, 231 (1931), in which we held In that class of cases it is held that suits for

that a suit against a tax collector for the recovery property alleged to be unlawfully or wrongfully

of money (alleged to be due under a contract and withheld from the rightful owner by officers of the

withheld unlawfully) was not barred by immunity. state are not suits against the sovereign itself and

There, we noted that the tax collector had no may be maintained without permission of the

discretion under the governing law to deny sovereign.

payment on Epperson's contract:

158 Tex. 74, 308 S.W.2d 838, 841 (1958). In

By legislative act the state has constituted the other words, where statutory or constitutional

tax collector of the county its agent to receive provisions create an entitlement to payment, suits

delinquent taxes collected under such contract, seeking to require state officers to comply with

and it is the duty of such officer to pay all fees and the law are not barred by immunity merely

commissions lawfully incurred in the collection because they compel the state to make those

thereof to the various parties who may be entitled payments. This rule is generally consistent with

thereto. Under such circumstances, the tax the letter and spirit of our later caselaw. In IT-

collector's duty with reference to money Davy, we distinguished permissible declaratory-

belonging to persons who are entitled under valid judgment suits against state officials

contracts to receive the same from him is purely

ministerial. If he withholds the payment of such [284 S.W.3d 372]

funds when a person is lawfully entitled to receive

same, he has failed to discharge a duty imposed "allegedly act[ing] without legal or statutory

upon him by law and his act is a wrongful one. authority" from those barred by immunity: "In

contrast [to suits not implicating sovereign

Epperson, 42 S.W.2d at 231. We therefore immunity], declaratory-judgment suits against

concluded that although the trial court would "not state officials seeking to establish a contract's

possess jurisdiction to enforce the specific validity, to enforce performance under a contract,

performance of the contract relied upon by or to impose contractual liabilities are suits

Epperson or to award damages for any breach of against the State. That is because such suits

said contract," Epperson's suit was "simply an attempt to control state action by imposing

action to compel an officer, as agent of the state, liability on the State." 74 S.W.3d at 855-56

to pay over funds to a party who claims to be (citations omitted) (emphasis added).

lawfully entitled thereto." Id.

From this rationale, it is clear that suits to

Thus, the rule arising out of Epperson is that require state officials to comply with statutory or

while suits for contract damages against the state constitutional provisions are not prohibited by

are generally barred by immunity, where a statute sovereign immunity, even if a declaration to that

or the constitution requires that government effect compels the payment of money. To fall

contracts be made or performed in a certain way, within this ultra vires exception, a suit must not

leaving no room for discretion, a suit alleging a complain of a government officer's exercise of

government official's violation of that law is not discretion, but rather must allege, and ultimately

barred, even though it necessarily involves a prove, that the officer acted without legal

authority or failed to perform a purely ministerial

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

act. Compare Epperson, 42 S.W.2d at 231 ("the B

tax collector's duty ... is purely ministerial") with Proper Parties

Catalina Dev., Inc. v. County of El Paso, 121

S.W.3d 704, 706 (Tex.2003) (newly elected Nonetheless, as a technical matter, the

commissioners court immune from suit where it governmental entities themselves—as opposed to

"acted within its discretion to protect the their officers in

perceived interests of the public" in rejecting

contract approved by predecessor), and Dodgen, [284 S.W.3d 373]

308 S.W.2d at 842 (suit seeking "enforcement of

contract rights" barred by immunity in the their official capacity—remain immune from suit.

absence of any "statutory provision governing or We have been less than clear regarding the

limiting the manner of sale"). Thus, ultra vires permissible use of a declaratory remedy in this

suits do not attempt to exert control over the type of ultra vires suit.6 Must it be brought

state—they attempt to reassert the control of the directly against the state or its subdivisions? Or

state.5 Stated another way, these suits do not seek must it be brought against the relevant

to alter government policy but rather to enforce government actors in their official capacity?

existing policy. Compare Fed. Sign, 951 S.W.2d at 404 ("A

private litigant does not need legislative

Further, while "[a] lack of immunity may permission to sue the State for a state official's

hamper governmental functions by requiring tax violations of state law.") (citations omitted), with

resources to be used for defending lawsuits ... IT-Davy, 74 S.W.3d at 855 ("Private parties may

rather than using those resources for their seek declaratory relief against state officials who

intended purposes," Reata Constr. Corp., 197 allegedly act without legal or statutory

S.W.3d at 375, this reasoning has not been authority.") (citations omitted). It seems to us,

extended to ultra vires suits, see Fed. Sign, 951 however, that because the rule that ultra vires

S.W.2d at 404 (citing Dir. of the Dep't of Agric. & suits are not "suit[s] against the State within the

Env't v. Printing Indus. Ass'n of Tex., 600 S.W.2d rule of immunity of the State from suit" derives

264, 265-66 (Tex.1980) (legislative consent not from the premise that the "acts of officials which

required for suit for injunctive relief against state are not lawfully authorized are not acts of the

agency to halt unauthorized printing equipment State," Cobb, 190 S.W.2d at 712, it follows that

and printing activities), Tex. Highway Comm'n v. these suits cannot be brought against the state,

Tex. Ass'n of Steel Imps., Inc., 372 S.W.2d 525, which retains immunity, but must be brought

530 (Tex.1963) (legislative consent not required against the state actors in their official capacity.7

for declaratory judgment suit against Highway This is true even though the suit is, for all

Commission to determine the parties' rights), and practical purposes, against the state. See Brandon

Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 83

709, 712 (1945) (legislative consent not required L.Ed.2d 878 (1985) ("[A] judgment against a

for declaratory judgment suit against State public servant `in his official capacity' imposes

Comptroller to determine parties' rights under tax liability on the entity that he represents provided,

statute)). Further, extending immunity to officials of course, the public entity received notice and an

using state resources in violation of the law would opportunity to respond."); Tex. A & M Univ. Sys.

not be an efficient way of ensuring those v. Koseoglu, 233 S.W.3d 835, 844 (Tex.2007) ("It

resources are spent as intended. This is is fundamental that a suit against a state official is

particularly true since, as discussed below, suits merely `another way of pleading an action against

that lack merit may be speedily disposed of by a the entity of which [the official] is an agent.'")

plea to the jurisdiction. See Tex. Dep't of Parks & (quoting Kentucky v. Graham, 473 U.S. 159, 165,

Wildlife v. Miranda, 133 S.W.3d 217, 226 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)).

(Tex.2004).

C

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

Permissible Relief immunity is not waived." Id. This does not mean,

however, that a judgment that involves the

But the ultra vires rule is subject to payment of money necessarily implicates

important qualifications. Even if such a claim may immunity. Drawing the line at monetary relief is

be brought, the remedy may implicate immunity. itself problematic, as "[i]t does not take much

Cf. 13 CHARLES ALAN WRIGHT & ARTHUR R. lawyerly inventiveness to convert a claim for

MILLER, FEDERAL PRACTICE & PROCEDURE payment of a past due sum (damages) into a

§ 3524.3 (under federal prayer for an injunction against refusing to pay

the sum, or for a declaration that the sum must be

[284 S.W.3d 374] paid, or for an order reversing the agency's

decision not to pay." Bowen v. Massachusetts,

immunity law, an ultra vires suit may be brought 487 U.S. 879, 915-16, 108 S.Ct. 2722, 101 L.Ed.2d

but "if the defendant is a state officer, sovereign 749 (1988) (Scalia, J., dissenting) (discussing

immunity bars the recovery of damages from the section 702 of the Administrative Procedure Act,

state treasury in a private suit"). This is a curious which waives sovereign immunity in actions

situation: the basis for the ultra vires rule is that against federal agencies as long as the plaintiff

a government official is not following the law, so seeks "relief other than money damages")

that immunity is not implicated, but because the (quoting 5 U.S.C. 702 (2000)).

suit is, for all practical purposes, against the state,

its remedies must be limited. Cf. Fla. Dep't of Parsing categories of permissible relief in

State v. Treasure Salvors, Inc., 458 U.S. 670, cases implicating immunity inevitably involves

685, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982) compromise. See, e.g., DOUGLAS LAYCOCK,

("There is a well-recognized irony in Ex parte MODERN AMERICAN REMEDIES 482 (3d ed.

Young; unconstitutional conduct by a state officer 2002) ("The law of remedies against governments

may be `state action' for purposes of the and government officials is a vast and complex

Fourteenth Amendment yet not attributable to body of doctrine, full of technical distinctions,

the State for purposes of the Eleventh."). We fictional explanations, and contested

recently held that retired firefighters could not compromises."). The United States Supreme

pursue a declaratory judgment action against the Court has held that, under federal immunity law,

City to recover amounts allegedly previously claims for prospective injunctive relief are

withheld from lump-sum termination payments permissible, while claims for retroactive relief are

in violation of the Local Government Code. City of not, as such an award is "in practical effect

Houston v. Williams, 216 S.W.3d 827, 828 indistinguishable in many aspects from an award

(Tex.2007). Without discussing Epperson, we of damages against the State." Edelman v.

applied the rule from IT-Davy and Dodgen that Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 39

the declaratory judgment act cannot be used to L.Ed.2d 662 (1974). This rule originated in Ex

circumvent immunity, noting that "[t]he only parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.

injury the retired firefighters allege has already 714 (1908), in which the Court held that an action

occurred, leaving them with only one plausible to restrain a government official from

remedy—an award of money damages." Id. at unconstitutional conduct was not barred by

829. Williams stands for the proposition, then, immunity. Later, in Edelman, the Court

that retrospective monetary claims are generally recognized that the distinction between

barred by immunity. prospective and retrospective relief "will not in

many instances be that between day and night"

We also stated that "in every suit against a and cautioned that a fiscal impact on the

governmental entity for money damages, a court

must first determine the parties' contract or [284 S.W.3d 375]

statutory rights; if the sole purpose of such a

declaration is to obtain a money judgment, State did not necessarily implicate immunity:

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

The injunction issued in Ex parte Young was Court shed further light on the issue in Milliken v.

not totally without effect on the State's revenues, Bradley, 433 U.S. 267, 269, 97 S.Ct. 2749, 53

since the state law which the Attorney General L.Ed.2d 745 (1977), a case involving

was enjoined from enforcing provided substantial desegregation of the Detroit school system. The

monetary penalties against railroads which did Supreme Court upheld a trial court's order

not conform to its provisions. Later cases from requiring state officials to spend $6 million on

this Court have authorized equitable relief which education to remedy effects of segregation.

has probably had greater impact on state Milliken, 433 U.S. at 290, 97 S.Ct. 2749. The

treasuries than did that awarded in Ex parte Court held that this relief was permissible under

Young. In Graham v. Richardson, 403 U.S. 365, Edelman: "That the programs are also

91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), Arizona and `compensatory' in nature does not change the fact

Pennsylvania welfare officials were prohibited that they are part of a plan that operates

from denying welfare benefits to otherwise prospectively to bring about the delayed benefits

qualified recipients who were aliens. In Goldberg of a unitary school system." Id.; see also 13

v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d CHARLES ALAN WRIGHT & ARTHUR R.

287 (1970), New York City welfare officials were MILLER, FEDERAL PRACTICE & PROCEDURE

enjoined from following New York State § 3524.3 (noting that, under Edelman,

procedures which authorized the termination of "[i]njunctions requiring expenditure of state

benefits paid to welfare recipients without prior funds are acceptable, so long as the order is

hearing. But the fiscal consequences to state prospective" but "[r]etroactive relief, including

treasuries in these cases were the necessary result compensatory damages from state funds are

of compliance with decrees which by their terms barred").

were prospective in nature. State officials, in

order to shape their official conduct to the This compromise between prospective and

mandate of the Court's decrees, would more likely retroactive relief, while imperfect, best balances

have to spend money from the state treasury than the government's immunity with the public's right

if they had been left free to pursue their previous to redress in cases involving ultra vires actions,

course of conduct. Such an ancillary effect on the and this distinction "appear[s] in the immunity of

state treasury is a permissible and often an the United States, and in the law of most states'

inevitable consequence of the principle immunity from state-law claims." LAYCOCK,

announced in Ex parte Young, supra. MODERN AMERICAN REMEDIES at 482. It also

comports with the modern justification for

Id. at 667-68, 94 S.Ct. 1347 (footnote immunity: protecting the public fisc. Tooke v.

omitted). The retroactive portion of the Edelman City of Mexia, 197

district court's decree was different, however, as

"[i]t require[d] payment of state funds, not as a [284 S.W.3d 376]

necessary consequence of compliance in the

future with a substantive federal-question S.W.3d 325, 331-32 (Tex.2006) (observing that

determination, but as a form of compensation to immunity "shield[s] the public from the costs and

those whose applications were processed on the consequences of improvident actions of their

slower time schedule at a time when petitioner governments"); Federal Sign, 951 S.W.2d at 417

was under no court-imposed obligation to (Enoch, J., dissenting) (noting that suits against

conform to a different standard." Id. at 668, 94 the state would deplete treasury resources and tax

S.Ct. 1347. funds necessary to operate the government).

Moreover, it is generally consistent with the way

While "[t]he line between prospective and our courts of appeals have interpreted Williams.

retrospective remedies is neither self-evident nor See, e.g., City of Round Rock v. Whiteaker, 241

self-executing," LAYCOCK, MODERN S.W.3d 609, 633-34 (Tex.App.-Austin 2007, pet.

AMERICAN REMEDIES at 483, the Supreme denied) (approving, under Williams, dichotomy

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

between declaratory and injunctive claims Comm'n v. Little-Tex Insulation Co., 39 S.W.3d

regarding past statutory violations and those 591, 598 (Tex.2001) (noting that governmental

seeking only to compel the city to follow the law immunity "does not shield the State from an

in the future; the government was immune from action for compensation under the takings

the former but not the latter); Bell v. City of clause"); cf. WRIGHT & MILLER, FEDERAL

Grand Prairie, 221 S.W.3d 317, 325 (Tex.App.- PRACTICE & PROCEDURE § 3524.3 ("If the state

Dallas 2007, no pet.) (holding that, under cannot invoke its immunity, retroactive relief

Williams, firefighters' requested declaration against it is allowed.").

regarding past statutory violation was barred, but

to the extent the requested declaration concerned Heinrich has not alleged a takings claim. In

future violations, the claim was not barred, the trial court, Heinrich alleged only that "a suit

providing the firefighters did not seek an award of for equitable relief against a governmental entity

money damages). And finally, it ensures that for violation of a provision of the Texas Bill of

statutes specifically directing payment, like any Rights is excepted from ... sovereign immunity

other statute, can be judicially enforced going under Texas Constitution article [I], section 29"

forward. without specifying which provision of the Bill of

Rights had been violated. In the court of appeals,

This approach is inconsistent with Epperson, however, she clarified that her constitutional

however, in which we held that, if successful, complaint was a "violation of Article 1, section

Epperson would be entitled to "the sum of 16." TEX. CONST. art. I, § 16 ("No bill of

$93,000 which belonged to him as his attainder, ex post facto law, retroactive law, or

commission for services rendered." Epperson, 42 any law impairing the obligation of contracts,

S.W.2d at 229. In that respect, Epperson conflicts shall be made."). Petitioners contend that she

with Williams, in which we implied that waived this argument by failing to

prospective remedies might not be barred even

though retrospective monetary ones were. [284 S.W.3d 377]

Williams, 216 S.W.3d at 829 (noting that "[t]he

only injury the retired firefighters allege has raise it in the trial court. See Tex. Dep't of

already occurred, leaving them with only one Protective & Regulatory Servs. v. Sherry, 46

plausible remedy— an award of money damages" S.W.3d 857, 861 (Tex.2001) ("`[A]s a rule, a

and that "they assert no right to payments from claim, including a constitutional claim, must have

the City in the future"). The best way to resolve been asserted in the trial court in order to be

this conflict is to follow the rule, outlined above, raised on appeal.'"') (citations omitted). Even if

that a claimant who successfully proves an ultra Heinrich's constitutional argument was properly

vires claim is entitled to prospective injunctive presented, however, it has no merit. Heinrich

relief, as measured from the date of injunction. does not challenge the governing statute or

Cf. Edelman, 415 U.S. at 669, 94 S.Ct. 1347 (using bylaws, but rather the Board's actions under those

entry of injunction to distinguish retrospective provisions. Indeed, Heinrich argues that "[t]he

from prospective relief). Thus, while the ultra Pension Board and its individual members acted

vires rule remains the law, see Federal Sign, 951 outside their authority and in violation of the

S.W.2d at 404, Epperson's retrospective remedy Texas Constitution when they reduced

does not. [Heinrich's] benefits." Because Heinrich does not

allege that any law sanctioned the retroactive

But this rule is not absolute. For example, a reduction in her benefits, her constitutional

claimant who successfully proves a takings claim argument fails.8

would be entitled to compensation, and the claim

would not be barred by immunity even though the As we have repeatedly noted, the Legislature

judgment would require the government to pay is best positioned to waive immunity, and it can

money for property previously taken. Gen. Servs. authorize retrospective relief if appropriate. See,

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

e.g., TEX. LOCAL GOV'T CODE § 180.006 [284 S.W.3d 378]

(enacted after Williams and waiving immunity for

firefighter and police officer claims for back pay Heinrich's suit because Heinrich has offered no

and civil penalties). There are cases in which evidence that the reduction in her benefits was

prospective relief is inadequate to make the illegal or unauthorized. We conclude, however,

plaintiff whole, but the contours of the that Heinrich has presented evidence raising a

appropriate remedy must be determined by the fact question on this issue.

Legislature.

"When a plea to the jurisdiction challenges

Thus, Heinrich's claims for prospective relief the pleadings, we determine if the pleader has

may be brought only against the appropriate alleged facts that affirmatively demonstrate the

officials in their official capacity, and her court's jurisdiction to hear the cause. We construe

statutory claims for future benefits against the the pleadings liberally in favor of the plaintiffs

City, Fund, and Board must be dismissed.9 and look to the pleaders' intent." Miranda, 133

Heinrich's pleadings are unclear as to the capacity S.W.3d at 226 (citations omitted). Here, Heinrich

or capacities in which she has sued the individual alleges that petitioners violated article 6243b,

Board members. The United States Supreme section 10A(b) of the Texas Revised Civil Statutes

Court has observed that, "[i]n many cases, the when they reduced her benefits. Thus, if

complaint will not clearly specify whether officials Heinrich's allegations are true, her suit would fall

are sued personally, in their official capacity, or within the ultra vires exception to governmental

both." Kentucky v. Graham, 473 U.S. 159, 167 n. immunity as described above.

14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); see also

United States ex rel. Adrian v. Regents of Univ. of This is not the end of our analysis, however:

Cal., 363 F.3d 398, 403 (5th Cir. 2004). In these "if a plea to the jurisdiction challenges the

cases, "`[t]he course of proceedings' in such cases existence of jurisdictional facts, we consider

typically will indicate the nature of the liability relevant evidence submitted by the parties when

sought to be imposed." Graham, 473 U.S. at 167 necessary to resolve the jurisdictional issues

n. 14, 105 S.Ct. 3099 (citations omitted). Here, raised, as the trial court is required to do." Id. at

the injunctive relief Heinrich seeks would 227. If there is no question of fact as to the

necessarily come from the Board, rather than the jurisdictional issue, the trial court must rule on

individual members. Considering "the nature of the plea to the jurisdiction as a matter of law. Id.

the liability sought to be imposed," id., and at 228. If, however, the jurisdictional evidence

construing Heinrich's pleadings liberally, creates a fact question, then the trial court cannot

Miranda, 133 S.W.3d at 226, we conclude that grant the plea to the jurisdiction, and the issue

she has sued the Board members in their official must be resolved by the fact finder. Id. at 227-28.

capacities, and her claims are therefore not This standard mirrors our review of summary

automatically barred by immunity.10 To the extent judgments, and we therefore take as true all

that the court of appeals held that the suit is evidence favorable to Heinrich, indulging every

against the Board members in their individual reasonable inference and resolving any doubts in

capacities, we reverse that portion of its her favor. Id. at 228.

judgment.

Petitioners argue that, in accordance with the

D governing bylaws, the payments to Heinrich were

Evidence That Petitioners Acted Ultra reduced when her son ceased to be eligible to

Vires receive them, and asserts that the statutory

provisions Heinrich relies upon are

In their second issue, petitioners argue that "inapplicable." Conversely, Heinrich alleges that

governmental immunity prohibits she was awarded 100% of her husband's pension

in accordance with these provisions, and that

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

petitioners' subsequent retroactive reduction of to the fund as employees of a department to

her benefits violated, among others, article which the change would directly apply, voting by

6243b, section 10A(a)(1) of the Texas Revised secret ballot at an election held after ten (10) days'

Civil Statutes. The relevant portions of article notice given by posting at a prominent place in

6243b, section 10A provide: every station or substation of a department to

which the change would directly apply and in the

(a) Notwithstanding anything to the contrary city hall;

in other parts of this Act and subject to

Subsections (b) and (c) of this section, the Board TEX.REV.CIV. STAT. art. 6243b, § 10A

of Trustees may, by majority vote of the whole (emphasis added). Under this statute, while

board, make from time to time one or more of the benefits may be increased if certain procedures

following changes, or modifications: are followed, the Board has no discretion to

retroactively lower pensions. Petitioners,

(1) modify or change prospectively or however, cite the provisions of the 1980 bylaws,

retroactively in any manner whatsoever any of the under which the reduction would be proper due to

benefits provided by this Act, except that any Heinrich's son's age. They therefore suggest that

retroactive change or modification shall only Heinrich erroneously relies on 1985 changes to

increase pensions or benefits; the bylaws that increased the surviving spouse's

share but were prospective only in nature and do

*** not apply to Heinrich.

(b) None of the changes made under Heinrich submitted an affidavit from John

Subsection (a) of this section may be made unless Batoon, former Assistant City Attorney for El

all of the following conditions are sequentially Paso.11 Batoon's affidavit provided:

complied with:

I was serving as an Assistant City Attorney for

(1) the change must be approved by a the City of El Paso in 1985. I reviewed and

qualified actuary selected by a four-fifths vote of approved the award to Ms. Lilli M. Heinrich of

the Board; the actuary's approval must be based 100% of her deceased husband's, Charles D.

on an actuarial finding that the change is Heinrich, benefits from The El Paso Firemen &

supported by the existing funding status of the Policemen's Pension Fund. All procedures were

fund; the actuary, if an individual, must be a followed according to the Plan and according to

Fellow of the Society of Actuaries or a Fellow of law. The membership voted and approved of the

the Conference of Actuaries in Public Practice or a benefits awarded Ms. Heinrich as was required by

Member of the American Academy of Actuaries; the Plan. Because Mr. Heinrich had been an

the actuary, if an actuarial consulting firm, must outstanding police officer for the City of El Paso

be established in the business of providing and because he was killed in the line of duty, the

actuarial consulting services to pension plans and Board of Trustees and the membership voted to

have experienced personnel able to provide the award Ms. Heinrich 100% of Mr. Heinrich's

requested benefits.

[284 S.W.3d 379] Consideration of the amount of benefits

awarded Ms. Heinrich was not based, in any way,

services; the findings upon which the properly on the fact that she had a minor child at that time.

selected and qualified actuary's approval are Ms. Heinrich was awarded 100% of the benefits

based are not subject to judicial review; because Mr. Heinrich had been a well-loved

officer and his death was a terrible loss for the

(2) the change must be approved by a

police department. It was the Board of Trustees

majority of all persons then making contributions

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

and the membership's way of paying tribute to a from individual liability. See Telthorster v.

fallen officer. Tennell, 92 S.W.3d 457, 459-60 (Tex.2002).

Because we hold that Heinrich has not sued the

Along with this sworn testimony, the Board members in their individual capacities,

evidence included a pair of October 16, 1985 official immunity is inapplicable here.12

letters from the chief of police, one signed by the

then-Board members, stating that "Mrs. Heinrich III

will receive 100% of her husband's final pension Conclusion

amount," and one unsigned, stating that 100%

would go to "Mrs. Heinrich and her dependent In sum, because there is a question of fact as

children." The minutes of the November 20, 1985 to whether Heinrich's pension payments have

Board meeting also indicate that the membership been reduced in violation of state law, her claims

had previously voted to change benefits so that for prospective declaratory and injunctive relief

surviving spouses' benefits would increase from against the Board members and the mayor in

66 2/3 to 100% of the pension amount. The Board their official capacities may go forward, but we

contends that these bylaw changes do not apply to dismiss her retrospective claims against them. All

Heinrich, but even if they do not, Batoon's of her claims against the City, Fund, and Board,

affidavit and the letters raise a fact question as to however, are barred by governmental immunity,

whether Heinrich's individual benefits were and we dismiss them. Finally, we hold that the

increased to 100% of her husband's pension Board members have not been sued in their

payments under the provisions of article 6243b individual capacities, and to the extent the court

and subsequently reduced in violation thereof. of appeals held otherwise, we reverse its

We conclude that the trial court correctly denied judgment. We affirm in part and reverse in part

that portion of the plea to the jurisdiction the court of appeals' judgment and remand this

case to the trial court for further proceedings.

[284 S.W.3d 380] TEX.R.APP. P. 60.2(a),(d).

challenging Heinrich's claims against the ---------------

individuals in their official capacities. Miranda,

133 S.W.3d at 227-28. Notes:

E 1. The City withheld a percentage of Charles's

The Individuals' Immunity compensation (and that of other officers) to fund

the plan.

In their final issue, petitioners assert that the

2. The State of Texas and the Texas State

trial court erred in denying the individual board

Association of Fire Fighters submitted amicus

members' plea to the jurisdiction based on

curiae briefs.

governmental and official immunity. With the

limited ultra vires exception discussed above, 3. We recently dismissed a claim for declaratory

governmental immunity protects government and injunctive relief against the Houston

officers sued in their official capacities to the Municipal Employees Pension System in which

extent that it protects their employers. See Univ. the "plaintiffs ... requested that the trial court

of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, issue an injunction directing the pension board to

776 (Tex.App.-Houston [1st Dist.] 1999, pet. comply with the trial court's interpretation of

dism'd w.o.j.). Because of this exception, however, Article 6243h," the governing statute. Houston

governmental immunity does not bar Heinrich's Mun. Employees Pension Sys. v. Ferrell, 248

claims against the individuals in their official S.W.3d 151, 158-59 (Tex.2007). Under Article

capacities. Official immunity, by contrast, is an 6243h, the Houston board's "interpretation of

affirmative defense protecting public officials [the] Act [is] final and binding on any interested

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

party," TEX.REV.CIV. STAT. art. 6243h § 2(y), immunity."); Tex. Educ. Agency v. Leeper, 893

and we held that this language precluded judicial S.W.2d 432, 446 (Tex. 1994) ("The DJA expressly

review. Ferrell, 248 S.W.3d at 158 ("There is no provides that persons may challenge ordinances

right to judicial review of an administrative order or statutes, and that governmental entities must

unless a statute explicitly provides that right or be joined or notified. Governmental entities

the order violates a constitutional right.") joined as parties may be bound by a court's

(citations omitted). Here, however, Article 6243b declaration on their ordinances or statutes. The

contains no language similar to that in 6243h Act thus contemplates that governmental entities

granting the Board exclusive authority to may be—indeed, must be—joined in suits to

interpret the act, see TEX.REV.CIV. STAT. art. construe their legislative pronouncements.").

6243b, and, in any case, Heinrich does not Here, Heinrich is not challenging the validity of

challenge petitioners' interpretation of 6243b, but the bylaws or the governing statute, but rather

rather alleges that they have violated that statute petitioners' actions under them.

under an undisputed reading thereof. See Ferrell,

248 S.W.3d at 160 (Brister, J., concurring) ("A 7. State officials may, of course, be sued in both

different case might be presented if the plaintiffs their official and individual capacities. Judgments

alleged the board was clearly violating some against state officials in their individual capacities

provision of the statute. Article 6243h gives the will not bind the state. See Alden v. Maine, 527

pension board complete discretion to interpret U.S. 706, 757, 119 S.Ct. 2240, 144 L.Ed.2d 636

the statute, but not to violate it."). (1999) ("Even a suit for money damages may be

prosecuted against a state officer in his individual

4. The Dodgen Court expressly declined to limit capacity for unconstitutional or wrongful conduct

Epperson based on changes in federal immunity fairly attributable to the officer himself, so long as

jurisprudence. Dodgen, 308 S.W.2d at 843. the relief is sought not from the state treasury but

from the officer personally.").

5. Because the policy embodied in the law extends

only as far the amount wrongfully withheld, 8. Further, although the parties do not address it,

claims for amounts beyond those alleged to be we note that the reduction in Heinrich's survivor

due under the relevant law, such as consequential payments occurred before the effective date of

damages, remain barred by immunity. article XVI, section 66 of the Texas Constitution

("Protected Benefits Under Certain Public

6. For claims challenging the validity of Retirement Systems"), and we do not consider

ordinances or statutes, however, the Declaratory whether it would otherwise apply in this case.

Judgment Act requires that the relevant

governmental entities be made parties, and 9. While this case was pending on interlocutory

thereby waives immunity. TEX. CIV. PRAC. & appeal, the Legislature enacted 271.151.160 of the

REM. CODE § 37.006(b) ("In any proceeding that Local Government Code, waiving immunity from

involves the validity of a municipal ordinance or suit for certain claims against cities and other

franchise, the municipality must be made a party governmental entities. Heinrich does not argue

and is entitled to be heard, and if the statute, that her claims fall within these provisions, and

ordinance, or franchise is alleged to be we express no opinion on that subject.

unconstitutional, the attorney general of the state

must also be served with a copy of the proceeding 10. Because the mayor of El Paso, who is also a

and is entitled to be heard."); see Wichita Falls Board member, was named as a defendant in his

State Hosp. v. Taylor, 106 S.W.3d 692, 697-698 official capacity, Heinrich may seek liability from

(Tex.2003) ("[I]f the Legislature requires that the the City through that officer, although her claims

State be joined in a lawsuit for which immunity against the City itself must be dismissed.

would otherwise attach, the Legislature has

11. The Fund, the Board, and the Board members

intentionally waived the State's sovereign

objected to this evidence. The trial court did not

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

explicitly rule on the objections, and the

petitioners do not raise any evidentiary issues on

appeal.

12. The court of appeals failed to draw this

distinction, instead discussing the protections

available to officials from governmental

immunity. 198 S.W.3d at 407. This conflict gives

us jurisdiction over this interlocutory appeal.

TEX. GOV'T CODE § 22.225(c), (e).

---------------

Haddix v. American Zurich Ins. Co., 253 S.W.3d 339 (Tex. App. 2008)

253 S.W.3d 339 [253 S.W.3d 345]

Robert HADDIX Jr., Appellant

v. The Division conducted a contested case hearing

AMERICAN ZURICH INSURANCE on Haddix's November 25 claim but had not

COMPANY; Chesterfield Services, Inc.; issued a decision when Haddix filed suit. In

The Salvation Army; and Flahive, Ogden response to Haddix's suit, the appellees filed pleas

and Latson, P.C., Appellees. to the jurisdiction arguing that Haddix had failed

No. 11-06-00107-CV. to exhaust his administrative remedies. The trial

Court of Appeals of Texas, Eastland. court conducted a hearing and subsequently

April 3, 2008. granted the pleas and dismissed the litigation.

[253 S.W.3d 344] II. Analysis

Robert Haddix Jr., Lufkin, TX, pro se. A. Was Haddix Improperly Denied a Default

Judgment?

Robert D. Stokes, Flahive, Ogden & Latson,

Austin, Warren T. McCollum, Fenley & Bate, Haddix argues that the trial court erred by

L.L.P., Lufkin, TX, for appellee. failing to impose a default judgment on the

defendants. Haddix filed his lawsuit on August

Panel consists of: WRIGHT, C.J., McCALL, 29, 2005. Citations were issued and were mailed

J., and STRANGE, J. by certified mail on September 1. Haddix filed a

motion for default judgment on September 20,

OPINION 2005. Haddix assumes that the appellees'

deadline for filing an answer began running when

RICK STRANGE, Justice. the citations were mailed. This is incorrect.

Appellees were not served until they received the

Robert Haddix Jr. filed suit against American citation. See Milam v. Miller, 891 S.W.2d 1 (Tex.

Zurich Insurance Company; Chesterfield Services, App.-Amarillo 1994, writ ref'd) (defendant was

Inc.; the Salvation Army; and Flahive, Ogden and served by certified mail when he received

Latson, P.C. (Flahive), for injuries he claimed in plaintiff's petition and signed the certified mail

connection with two on-the-job injuries and his receipt).

subsequent claims for workers' compensation

benefits. The trial court granted appellees' pleas The officer's returns reveal that Zurich was

to the jurisdiction and dismissed Haddix's suit. served on September 23, Chesterfield and Flahive

We affirm in part and reverse and remand in part. were served on September 26, and the Salvation

Army was served on September 28. The Salvation

I. Background Facts Army's answer was due on October 24. The

remaining answers were due October 17. Each

Haddix contended that, while in the course

party filed an answer on October 7. Because

and scope of his employment with the Salvation

appellees were not in default, the trial court did

Army, he was injured on November 25, 2004, and

not err, and Haddix's second issue is overruled.2

that he aggravated his injury on December 16,

2004. Haddix filed workers' compensation claims B. Did the Trial Court Err by not Making

for both injuries. The Texas Department of Findings of Fact and Conclusions of Law?

Insurance, Division of Workers' Compensation1

held a contested case hearing on Haddix's Haddix contends that the trial court

December 16 claim and determined that he did committed misconduct by refusing to file findings

not suffer a compensable injury. The appeals of fact and conclusions of law after it granted

panel affirmed. appellees' pleas to the jurisdiction. A party is

Haddix v. American Zurich Ins. Co., 253 S.W.3d 339 (Tex. App. 2008)

entitled to findings of fact and conclusions of law court. However, both sides referred to a letter

after a conventional trial on the merits before the from the Texas Workforce Commission (TWC) to

court. IKB Indus. v. Pro-Line Corp., 938 S.W.2d Haddix that was included in his appendix of

440, 442 (Tex.1997). A case is "tried" when a evidence. The parties reach different conclusions

court holds an evidentiary hearing. Gen. Elec. regarding the evidence, but the evidence itself is

Capital Corp. v. ICO, Inc., 230 S.W.3d 702, 711 undisputed. The trial court, therefore, was not

(Tex.App.-Houston [14th Dist.] 2007, pet. required to prepare findings of fact. We will

denied). In other cases, unless they serve no assume that the trial court accepted the evidence

purpose such as when summary judgment is that Haddix included in his appendix as true and

granted, findings of fact and conclusions of law will afford the factual statements in Haddix's

are proper; however, a party cannot compel their petition the deference required by law. See Cont'l

preparation. Pro-Line Corp., 938 S.W.2d at 442- Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444,

43.3 449 (Tex.1996) (absent an allegation of

fraudulent pleadings, the trial court must take the

Courts have held that findings of fact are not plaintiff's allegations as true and must construe

required every time a plea to the jurisdiction is them liberally in the plaintiff's favor when ruling

granted. In Ford v. City of Lubbock, 76 S.W.3d on a plea to the jurisdiction).

795 (Tex.App.-Amarillo 2002, no pet.), the

claimants sued the City of Lubbock for the Haddix also argues that he was harmed by

drowning death of their child. The City filed a plea the trial court's failure to prepare conclusions of

to the jurisdiction, and the trial court held law because appellees' pleas consisted of

numerous subsections and because he does not

[253 S.W.3d 346] know the basis of the trial court's ruling. The trial

court's rulings on questions of law are reviewed

a hearing. No witnesses testified, but the parties de novo. State v. Heal, 917 S.W.2d 6, 9

attached affidavits and deposition testimony to (Tex.1996). This requires that we exercise our

their pleadings. The trial court granted the City's own judgment and redetermine each issue. Quick

plea. While the family requested findings of fact v. City of Austin, 7 S.W.3d 109, 116 (Tex.1998).

and conclusions of law, none were prepared. The Moreover, Haddix is required to attack all

Amarillo Court was required to determine if independent bases or grounds that fully support a

findings were appropriate because of a claim by complained-of ruling or judgment. Britton v. Tex.

the City that the family had not timely perfected Dep't of Criminal Justice, 95 S.W.3d 676, 681

its appeal. The Amarillo Court reviewed the trial (Tex.App.-Houston [1st Dist.] 2002, no pet.).

court's comments at the hearing and concluded Consequently, the preparation of conclusions of

that it had accepted the family's statements as law would not have altered Haddix's appeal or our

true. Consequently, there was no disputed fact analysis. Haddix's third issue is overruled.

issue for resolution, and findings of fact would

have served no useful purpose. 76 S.W.3d at 797- C. Did the Trial Court Err by not Providing

98. Haddix an Opportunity to Amend His Petition?

We believe that the same situation holds true Haddix next argues that the trial court erred

here. Each appellee asserted a plea to the because it signed an order of dismissal rather

jurisdiction. The pleas were initially unsupported than provide him with an opportunity to amend

by evidence, but Flahive subsequently filed a brief his petition. Texas Courts have signaled a

that included an affidavit from one of its preference for allowing a plaintiff an opportunity

attorneys. Haddix filed responses to the pleas and to amend before dismissing a suit in response to a

an appendix of evidence. When the trial court plea to the jurisdiction. The general rule is that, if

held a hearing on the pleas, no witnesses testified the plaintiff's pleadings do not demonstrate

and no evidence was formally received by the trial incurable defects, the plaintiff should be given an

Haddix v. American Zurich Ins. Co., 253 S.W.3d 339 (Tex. App. 2008)

opportunity to amend. See Sepulveda v. County that it was granting defendants' pleas and

of El Paso, 170 S.W.3d 605, 616-17 (Tex.App.-El requested a proposed order. The trial court signed

Paso 2005, pet. denied). If, however, the an order on December 22. Haddix objected to this

pleadings affirmatively negate the existence of order contending that the trial court erred by not

jurisdiction, dismissal is appropriate. See Harris giving him a chance to amend but he did not

County v. Sykes, 136 S.W.3d 635, 639 amend or request leave to amend his pleadings.

(Tex.2004). Haddix filed a motion for new trial and again

objected to the failure to grant him an

[253 S.W.3d 347] opportunity to amend, but he did not request

leave to amend or indicate how he could address

While the general rule expresses a preference his pleading deficiencies with an amended

for allowing an amendment, a plaintiff can waive pleading.

this opportunity through inaction. See, e.g.,

Kassen v. Hatley, 887 S.W.2d 4, 13-14 n. 10 Even if we assume that the better practice

(Tex.1994) (plaintiffs waived complaint to would have been served by specifically providing

dismissal by summary judgment aimed solely at Haddix with an opportunity to amend his

their pleadings when they did not request an pleadings, he had the opportunity in response to

opportunity to amend their petition); see also defendants' pleas to amend but did not do so, and

Dahl ex rel. Dahl v. State, 92 S.W.3d 856, 862 n. he had over one month following the hearing to

6 (Tex.App.-Houston [14th Dist.] 2002, no pet.) amend but did not do so; however, he has never

(noting that plaintiffs arguably waived complaint advised either the trial court or this court what he

that the trial court failed to provide them with an could plead that would address any of the

opportunity to amend their pleadings when they jurisdictional challenges. Accordingly, we cannot

did not seek leave to amend). say that the trial court erred, and Haddix's fourth

issue is overruled.

Haddix made no effort to amend his petition

prior to the hearing. The only prehearing D. Did the Trial Court Err by Citing the

reference to an amended pleading was in Wrong Section of the Labor Code?

Haddix's response to the Salvation Army's plea.

The Salvation Army contended that Haddix had The Salvation Army, Zurich, and Chesterfield

not exhausted his administrative remedies for each pleaded that Haddix's common-law

bringing a Payday Law cause of action by not remedies were barred by the exclusive remedy of

filing a claim with the Department of Labor.4 the Texas Workers' Compensation Act pursuant

Haddix disputed this and then stated: "Plaintiff is to "Texas Labor Code Section 406.234." Haddix

glad that Defendant brought this point up. In his complains that the trial court erred by granting

Original Petition, Plaintiff did not request this challenge because Section 406.234 does not

damages for this cause of action. Plaintiff now exist. The appellees cited the wrong section of the

requests leave from the Court to file a supplement Labor Code, but they are correct that the recovery

to his petition to address this point and other of workers' compensation benefits is the exclusive

unintentional glitches in his Original Petition." remedy of an employee covered by workers'

Despite this statement, Haddix did not file an compensation insurance for work-related injuries.

amended or supplemental pleading prior to the See TEX. LAB.CODE ANN. § 408.001(a) (Vernon

hearing. 2006). Haddix's fifth issue is overruled.

Haddix made no effort to amend his petition [253 S.W.3d 348]

during or after the hearing. The hearing occurred

on November 8. The trial court took the pleas E. Did the Trial Court Err with its

under advisement. The trial court notified the Evidentiary Rulings?

parties by correspondence dated December 15

Haddix v. American Zurich Ins. Co., 253 S.W.3d 339 (Tex. App. 2008)

Haddix argues that the trial court erred by Beckner, 74 S.W.3d 98, 103 (Tex.App.-Waco

refusing to admit, consider, or allow relevant 2002, no pet.) (rejecting argument that plaintiff

testimony and evidence. He does not, however, who filed suit seeking judicial review in a workers'

identify what evidence he believes was not compensation case was jurisdictionally required

admitted or considered. In his brief, he repeatedly to plead that his suit was an appeal of the appeals

refers to statements made by him while panel decision).

presenting argument to the trial court and to

cases he furnished the trial court. Neither 1. The Exhaustion of Administrative

constitutes evidence. We have previously held Remedies Requirement.

that we will assume that the trial court accepted

all evidence tendered by Haddix as true and that The exhaustion of administrative remedies

we will consider that evidence in our review. requirement represents the legislature's desire

Haddix's seventh, eighth, and twelfth issues, that administrative agencies initially determine

therefore, present nothing for our determination disputed questions of fact and law in certain

and are overruled. situations. Essenburg v. Dallas County, 988

S.W.2d 188, 189 (Tex.1998). When an agency has

F. Did the Trial Court Err by Granting the exclusive jurisdiction, courts have no subject-

Pleas to the Jurisdiction? matter jurisdiction until the claimant has

exhausted all administrative remedies within the

In several issues, Haddix challenges the agency. See In re Entergy Corp., 142 S.W.3d 316,

propriety of the trial court's decision to grant the 321-22 (Tex.2004).

appellees' pleas to the jurisdiction. We will treat

these collectively. A plea to the jurisdiction A plaintiff is required to allege facts

contests a trial court's subject-matter jurisdiction. affirmatively demonstrating the trial

Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638

(Tex.1999). The purpose of the plea "is not to [253 S.W.3d 349]

force the plaintiffs to preview their case on the

merits but to establish a reason why the merits of court's jurisdiction. Am. Motorists Ins. Co. v.

the plaintiffs' claims should never be reached." Fodge, 63 S.W.3d 801, 803 (Tex. 2001). Courts,

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, however, are not limited to the consideration of

554 (Tex.2000). Whether a court has subject- those facts but may also consider evidence to

matter jurisdiction is a matter of law. Tex. Dep't prove the jurisdictional issues raised. Bland

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, I.S.D., 34 S.W.3d at 555. Consequently, if a party

226 (Tex.2004). Accordingly, we review a has not exhausted its administrative remedies but

challenge to the trial court's subject-matter has pleaded that it has, the trial court would not

jurisdiction de novo. Id. at 228. be bound by this allegation but could still dismiss

a claim for lack of jurisdiction. The opposite is

Haddix asserted several causes of action true as well. If a party exhausts its administrative

against the appellees.5 Their contention is that in remedies but fails to properly or adequately plead

each instance Haddix failed to plead that he had this, the challenge is not to the trial court's

exhausted his administrative remedies and, jurisdiction but to the adequacy of the plaintiff's

therefore, that the trial court had no jurisdiction. pleading.

We believe the appellees' position is not quite a

correct statement of the law because, considering Haddix initiated two claims with the

a plea to the jurisdiction based on the alleged Division. Haddix pleaded that he was injured

failure to exhaust administrative remedies, it is while in the course of his employment for the

ultimately the plaintiff's actions rather than his Salvation Army on November 25, 2004, and that

pleadings that determine whether the trial court he aggravated his injury on December 16. He

has jurisdiction. Cf. Tex. Dep't of Transp. v. alleged that a contested case hearing was

Haddix v. American Zurich Ins. Co., 253 S.W.3d 339 (Tex. App. 2008)

conducted concerning the December 16 injury purposes, and we have found none ourselves.

and that, at this hearing, the hearing officer Thus, the trial court had jurisdiction to consider

considered whether Haddix was injured on an appeal of the appeals panel decision. Haddix

December 16 and, if so, whether and for what had not, however, exhausted his administrative

period was he disabled. Haddix alleged that the remedies for the November 25 injury, and the

hearing officer determined that he had no trial court did not have jurisdiction to consider

disability and that the appeals panel affirmed. any claim for benefits in connection with that

Flahive's evidence corroborated these factual injury.

statements.

Haddix's petition does not state a claim that

Haddix's petition does not refer to any indisputably constitutes an appeal of the appeals

administrative proceeding concerning the panel decision. Several arguably touch upon that

November 25 injury, but Flahive's evidence claim, and some are clearly meant to assert an

indicates that Haddix filed a separate claim for independent cause of action. Whether Haddix is

this injury, that the Division assigned it a claim properly

number, and that a benefit review conference and

contested case hearing were set. The disputed [253 S.W.3d 350]

issues at the second contested case hearing

involved whether the Salvation Army was appealing the appeals panel or whether his causes

Haddix's employer on November 25, whether of action are barred by the Workers'

Haddix was injured on that date, whether Haddix Compensation Act's exclusivity provision, we

timely notified his employer of his injury, whether need not decide today because our review does

the carrier had waived the right to contest the not concern the merits of Haddix's claims but

compensability, and whether Haddix was disabled merely the trial court's jurisdiction. See Bland

as the result of any November 25 injury. The ISD, 34 S.W.3d at 554 (a plea to the jurisdiction is

hearing officer had not yet released his findings a dilatory plea intended to defeat a cause of action

on these disputed issues when Haddix filed suit. without regard to the merits of the claim).

It is clear that the recovery of workers' To the extent that Haddix is attempting to

compensation benefits is the exclusive remedy of appeal the appeals panel's decision, the trial

an employee covered by workers' compensation court's jurisdiction is limited to the December 16

insurance for work-related injuries. See Section claim. The trial court has jurisdiction over

408.001(a). It is also clear that an individual Haddix's causes of action for fraud, conspiracy,

claiming an injury while in the course and scope libel, intentional infliction of emotional distress,

of his employment must exhaust his failure to properly investigate, and breach of the

administrative remedies before filing suit and that covenant of good faith and fair dealing to the

this suit is an appeal of the appeals panel. See extent that Haddix is claiming an independent

TEX. LAB.CODE ANN. § 410.251 (Vernon 2006). injury and to the extent those causes of action do

not require proof of a compensable injury on

Even though it is undisputed that Haddix November 25. Our holding is limited to the

presented a claim for his December 16 injury to determination that the trial court has jurisdiction

the Division and that he contested that claim and is not a holding that any cause of action is or

through the Division's appeals panel, the is not a viable claim.

appellees contend that he has not exhausted his

administrative remedies because the November 2. Retaliation for Filing a Claim.

25 and December 16 injuries are inexorably

intertwined. Appellees cite no authority in Texas law prohibits discrimination by

support of the argument that separate cl

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