Opinion

Rosalinda E. Romero v. Texas Permanent School Fund Corp.

Court
Texas Court of Appeals, 15th District
Filed
Aug 27, 2026
Status
Published
Nature of suit
Administrative law
Cited by
0 cases

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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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