The opinion
Affirmed and Majority and Concurring Opinions filed August 27, 2026.
In The
Fifteenth Court of Appeals
NO. 15-25-00180-CV
ROSALINDA E. ROMERO, Appellant
V.
TEXAS PERMANENT SCHOOL FUND CORP., Appellee
On Appeal from the 98th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-24-009170
CONCURRING OPINION
I concur in affirming the trial court’s grant of the Texas Permanent School
Fund Corporation’s plea to the jurisdiction. Although the Texas Legislature may
well have attempted to dispense with sovereign immunity when it amended section
122.001 of the Texas Civil Practice and Remedies Code, I agree that the amended
statutory language falls short of the “clear and unambiguous language” standard that
the Legislature has established for sovereign immunity waivers. Tex. Gov’t Code
§ 311.034. Nevertheless, I write separately to encourage the Legislature to revisit
the statutory language, given that the right to a jury trial is “as central to the
American conception of the consent of the governed as an elected legislature or the
independent judiciary.” Hon. Jennifer Walker Elrod, Is the Jury Still Out?: A Case
for the Continued Viability of the American Jury, 44 TEX. TECH. L. REV. 303, 303–
04 (2012). The right to a jury trial is illusory if employers, whether public or private,
starve the court system of jurors by terminating the employment of those men and
women who heed their civic duty to serve.
Few traditions are as fundamental to our country’s freedoms as the duty of
American citizens to serve as jurors at trial. The Founders viewed the jury trial not
as an inconvenience but rather as “a means of protecting Americans from their own
government.” Hon. Scott Brister, The Decline in Jury Trials: What Would Wal-Mart
Do?, 47 S. TEX. L. REV. 191, 212–13 (2005). Thomas Jefferson believed the jury to
be the “only anchor ever yet imagined by man, by which a government can be held
to the principles of its constitution.” Donald M. Middlebrooks, Reviving Thomas
Jefferson's Jury: Sparf and Hansen v. United States Reconsidered, 46 AM. J. LEGAL
HIST. 353, 353 (2004) (quoting 3 WRITINGS OF THOMAS JEFFERSON 71 (1961));
Elrod, supra, at 308. And our nation’s highest court has recognized this sentiment,
stating that “[t]he purpose of the jury trial . . . is to prevent oppression by the
Government.” Williams v. Florida, 399 U.S. 78, 100 (1970); see Brister, supra, at
213. The Supreme Court would later describe jury duty as, aside from voting, the
citizens’ “most significant opportunity to participate in the democratic process.”
Powers v. Ohio, 499 U.S. 400, 407 (1991).
Nevertheless, the question before us is not a grand one of constitutional
interpretation, but rather a narrow question of statutory interpretation. The question
simply is whether the Legislature effectuated a “clear and unambiguous” waiver of
sovereign immunity when it removed the word “private” from before “employer” in
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a statute that had previously stated “[a] private employer may not terminate the
employment of a permanent employee because the employee serves as a juror[.]”
It may be reasonable to interpret the Legislature’s removal of the word
“private” as an attempt to allow suits against a state employer when it retaliates
against an employee for honoring jury duty—it even strikes me as the most obvious
reason for this amendment. See Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452
(Tex. 2012) (“[T]his Court presumes the Legislature deliberately and purposefully
selects words and phrases it enacts, as well as deliberately and purposefully omits
words and phrases it does not enact.”). After all, without court recourse, section
122.001 is—for all practical purposes—rather toothless. Nevertheless, section
122.001 does not contain the type of language that the Texas Supreme Court has
recognized as sufficient to effectuate a “clear and unambiguous” waiver of sovereign
immunity. Tooke v. City of Mexia, 197 S.W.3d 325, 330 (Tex. 2006) (“[A] statute
that waives the State’s immunity must do so beyond doubt . . . .” (quoting Wichita
Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003))); Sw. Bell Tel., L.P.
v. Harris Cnty. Toll Rd. Auth., 282 S.W.3d 59, 68 (Tex. 2009). The absence of such
language is dispositive here.
But this case need not be the final word on whether employees of state
agencies have any recourse in Texas courts if they are fired for performing their civic
duty as jurors. The Texas Legislature amended section 122.001 as recently as 2019,
and the Legislature could take the opportunity to do so again to add a clear and
unambiguous immunity waiver. After all, Texas juries are called upon to answer
Texas’s most vital questions—whether an individual is guilty or innocent of a crime,
whether a family business can recover the benefit of a breached bargain, and whether
an accident victim should be compensated for the injuries he or she has sustained.
Texas juries should not be deprived of the perspective of public employees as they
resolve those questions.
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/s/ April Farris
April Farris
Justice
Panel consists of Chief Justice Brister and Justices Field and Farris.
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