Anthony Leatherwood v. Prairie View a & M University

Opinion Issued February 12, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-01334-CV

ANTHONY LEATHERWOOD, Appellant

V.

PRAIRIE VIEW A & M UNIVERSITY AND TEXAS A & M UNIVERSITY

SYSTEMS, Appellees

On Appeal from the 9th District Court

Waller County, Texas

Trial Court Cause No. 02-08-16491A

MEMORANDUM OPINION

Anthony Leatherwood, appellant, filed suit against Prairie View A & M

University, Texas A & M University Systems, and several individuals connected to

the Universities in their individual and official capacities for defamation and for

retaliation under the Texas Whistleblower Act and sought injunctive relief and

damages. Prairie View A & M University and Texas A & M University Systems

(collectively “the University”) responded to Leatherwood’s petition with a motion to

sever and a plea to the jurisdiction. The trial court granted the University’s motion

to dismiss and sever. In three issues presented for review, appellant argues that the

trial court improperly granted the University’s motion to dismiss. In particular,

appellant contends that the trial court failed to consider (1) that the Texas

Whistleblower Act contains a statutory waiver of sovereign immunity; (2) that

injunctive relief for defamation is available when the defamation affects a natural or

contractual right; and (3) that a statement which falsely charges a person with the

commission of a crime punishable by imprisonment is considered defamatory per se

and entitles the plaintiff to general or nominal damages. We affirm the order as

modified.

Background

Anthony Leatherwood was employed in the Information Technology

Department at Prairie View Texas A & M University. The underlying lawsuit

concerns a one-page letter written on July 12, 2002 by Shah Ardalan, Leatherwood’s

supervisor, to Mr. Larry Raab, Vice President for University Operations. In the letter,

Ardalan wrote about five behavioral conflicts involving Leatherwood and other

University employees. Leatherwood claims that the content of the letter was

defamatory and written in retaliation for his reporting of improper University

conduct.

Leatherwood filed his original petition on August 14, 2002, claiming that

Ardalan’s letter was defamatory; he requested damages and a temporary injunction

to prevent dissemination of the information contained in the letter and removal of the

letter from his personnel file. On August 23, 2002, a hearing was granted on

Leatherwood’s request for injunctive relief and set for October 28, 2002. On October

25, 2002, the University filed its response to Leatherwood’s claims and request for

injunctive relief. In its response, the University also filed a plea to the jurisdiction

and a motion to dismiss, claiming that the trial court lacked subject matter jurisdiction

over Leatherwood’s claims because the University was immune from tort liability

under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code § 101.021

(Vernon 1997).

On October 28, 2002, immediately prior to the hearing on Leatherwood’s

temporary injunction request, Leatherwood filed his “first supplemental pleading,”

alleging for the first time that the University had violated the Texas Whistleblower

Act. See Tex. Gov’t Code Ann . § 554.0035 (Vernon Supp. 2003). That same day,

following the hearing, the trial court denied Leatherwood’s motion for injunctive

relief and granted the University’s motion to dismiss with prejudice.

Discussion

Standard of Review

In three issues, appellant challenges the trial court’s granting of the

University’s plea to the jurisdiction and its dismissal of his claims. A plea to the

jurisdiction challenges the trial court’s subject matter jurisdiction to hear the case.

Bland I.S.D. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). Subject matter jurisdiction is

essential to the authority of a court to decide a case and is never presumed. Tex.

Ass’n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 443-44 (Tex. 1993). The

plaintiff has the burden to allege facts affirmatively demonstrating that the trial court

has subject matter jurisdiction. Id . at 446; Richardson v. First Nat’l Life Ins. Co. , 419

S.W.2d 836, 839 (Tex. 1967).

T he existence of subject-matter jurisdiction is a question of law. State Dep’t

of Highways & Pub. Transp. v. Gonzalez , 82 S.W.3d 322, 327 (Tex. 2002); Mayhew

v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998). Therefore, we review de

novo the trial court’s ruling on a plea to the jurisdiction. Id. In deciding a plea to the

jurisdiction, a court may not consider the merits of the case, but only the plaintiff’s

pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron

v. Brown , 80 S.W.3d 549, 555 (Tex. 2002).

Sovereign Immunity

Sovereign immunity, unless waived and absent legislative consent to sue the

State, protects the State, its agencies, and its officials from lawsuits for damages. Tex.

Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002).

The University is a state agency entitled to sovereign immunity. Univ. of Tex.-Pan

Am. v. Valdez, 869 S.W.2d 446, 448 (Tex. App.—Corpus Christi 1993, writ denied).

In the absence of a waiver of sovereign immunity, a court has no jurisdiction to

entertain a suit against a governmental unit. Tex. Dep’t of Transp. v. Jones , 8 S.W.3d

636, 638 (Tex. 1999). When a trial court learns that it lacks jurisdiction to hear a

cause, the court must dismiss the cause and refrain from rendering a judgment on the

merits. Li v. Univ. of Tex. Health Sci. Ctr., 984 S.W.2d 647, 654 (Tex.

App.—Houston [14th Dist.] 1998, pet. denied). The doctrine of sovereign immunity

shields the State from liability for torts, such as defamation, except to the extent the

immunity was waived by the Legislature or by statute. See City of La Porte v.

Barfield, 898 S.W.2d 288, 291 (Tex. 1995); City of Hempstead v. Kmiec, 902 S.W.2d

118, 122 (Tex. App.—Houston [1st Dist.] 1995, no writ).

Defamation

In his second and third issues, appellant contends the trial court erred in

dismissing his claims for injunctive relief and damages for defamation against the

University on grounds of sovereign immunity. We disagree.

The Texas Tort Claims Acts waives governmental immunity in three general

areas: use of publicly owned vehicles, premises defects, and injuries arising from

conditions or use of property. Tex. Civ. Prac. & Rem . Code Ann . § 101.021

(Vernon 1997). A ppellant did not allege that the alleged retaliatory letter was related

to the operation or use of a motor vehicle, a premises defect, or the use or misuse of

property owned or controlled by the University—the only three areas in which the

State waives immunity for torts. Thus, he does not bring his suit within the waiver

provisions of the Texas Tort Claims Act.

Moreover, i ntentional torts, such as defamation, do not fall within the scope of

the waiver of immunity under the Tort Claims Act. Tex. Civ. Prac. & Rem . Code

Ann . § 101.057(2); City of Hempstead, 902 S.W.2d at 122 . Thus, Leatherwood’s

claim also fails because defamation is an intentional tort, for which the Tort Claims

Act does not waive immunity. See City of Hempstead, 902 S.W.2d at 122 .

Accordingly, the University demonstrated its right to sovereign immunity, depriving

the trial court of subject matter jurisdiction over appellant’s defamation claim against

it and all other related claims and requests against the University.

See Tex. Dep’t of

Transp. v. Jones, 8 S.W.3d at 638 (trial court lacks jurisdiction to hear a suit against

the State unless the State has waived governmental immunity). Because the

University has sovereign immunity with respect to appellant’s defamation claim, the

trial court properly dismissed that claim, with prejudice,

as well as his claims against

the University for injunctive relief and damages arising from the defamation claim.

We overrule appellant’s second and third issues.

Whistleblower Act

In his first issue, appellant contends the trial court erred in dismissing his claim

against the University under the Whistleblower Act, section 554.035 of the Texas

Government Code. However, the Texas Whistleblower Act also contains a waiver

of sovereign immunity. Tex. Gov’t Code Ann . § 554.0035 (Vernon Supp. 2003).

However, before the State’s sovereign immunity is waived, the Act’s statutory

prerequisites for filing suit must be satisfied. Tex. S. Univ. v. Carter, 84 S.W.3d 787,

792 (Tex. App.—Houston [1st Dist.] 2002, no pet.) . A plaintiff’s mere reference to

the Whistleblower Act does not establish the State’s consent to be sued. See Tex .

Gov’t Code Ann. § 554.0035; see also Tex. Dep’t Criminal Justice v. Miller, 51

S.W.3d 583, 587 (Tex. 2001) (referring to the Tort Claims Act). Rather, the plaintiff

bears the burden of alleging facts affirmatively demonstrating the trial court’s

jurisdiction to hear his case. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 446 (Tex. 1993).

A court does not have jurisdiction over a Whistleblower Act claim unless the

plaintiff establishes that the State has waived immunity which entails establishing that

he has satisfied the jurisdictional prerequisites to filing suit under the Act. Tex. S.

Univ., 84 S.W.3d at 792 . Before an employee files suit under the Whistleblower Act,

he or she must initiate the grievance or appeal procedures of the employing state or

governmental entity within 90 days after the alleged violation occurred. Tex. Gov’t

Code Ann. § 554.006(a),(b). The grievance procedure is a jurisdictional requirement

that is necessary to confer jurisdiction on the trial court. Tex. S. Univ., 84 S.W.3d at

792 . Dismissal for lack of jurisdiction is proper when a public employee files a

statutory Whistleblower claim before satisfying mandatory statutory prerequisites. Id.

In the present case, Leatherwood pleaded a cause of action under the Texas

Whistleblower Act but failed to plead that he had initiated the grievance or appeal

procedures as required by the Act. Because Leatherwood did not plead compliance

with the Act’s prerequisites, he failed to establish his right to sue the University under

the Whistleblower Act. However, a litigant has a right to amend to attempt to cure

pleading defects if jurisdictional facts are not alleged. Tex. R. Civ. P. 80; see Tex.

Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002), Tex. Ass’n of Bus. , 852

S.W.2d at 446 .

Accordingly, we overrule appellant’s first issue and affirm the trial court’s

dismissal of his claims against the University under the Whistleblower Act as

modified to reflect a dismissal without prejudice to appellant’s right to replead.

Conclusion

We affirm the portion of the trial court’s order dismissing Leatherwood’s

defamation claim and related claims for lack of subject matter jurisdiction with

prejudice, and we affirm as modified the portion of the order dismissing

Leatherwood’s Whistleblower Act claims.

Evelyn V. Keyes

Justice

Panel consists of Justices Taft, Keyes, and Bland.

Do not publish. Tex. R. App. P. 47.4.