the University of Houston v. Stephen Barth

Opinion issued June 30, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00828 -CV

THE UNIVERSITY OF HOUSTON, Appellant

V.

STEPHEN BARTH, Appellee

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2001-34089

CONCURRING OPINION This case presents the question of whether a plaintiff’s failure to comply with

the Texas Whistleblower Act’s statutory requirements deprives a trial court of its

subject matter jurisdiction. In Texas Southern University v. Carter , this court

concluded that it does. 84 S.W. 3d 787, 792 (Tex. App.—Houston [1st Dist.] 2002,

no pet.). The emerging jurisprudence of the Texas Supreme Court, however, strongly

signals that it does not. Instead, absent a framework in which statutory requirements

expressly define a trial court’s power to hear the subject matter, such requirements

are not jurisdictional, but rather operate only as elements necessary to a recovery.

The trial court in this case did not err in denying the university’s pleas to the

jurisdiction because the Whistleblower Act does not require exhaustion of

administrative remedies—or any sort of administrative decision, for that

matter—before filing suit in state district court. Tex. Gov’t Code Ann. § 554.006

(Vernon 2004). The statute does not expand or limit a trial court’s power to hear the

subject of the lawsuit. The university’s complaints about the timing of Barth’s

initiation of grievance proceedings thus are not attacks on the trial court’s subject

matter jurisdiction, but instead are arguments against its employee’s right to a

recovery under the Act. Given the Texas Supreme Court’s recent decisions, this court

should overrule its holding in Carter , instead of following it, because the grievance

initiation timetables in the Act are not jurisdictional. I would affirm the trial court on

this ground, and therefore I respectfully concur.

The Statutory Language

Pursuant to section 554.006, entitled “Use of Grievance or Appeal Procedures,”

a public employee seeking a recovery under the Whistleblower Act must initiate

grievance or appeal procedures available through his employer “before suing” under

the Whistleblower Act. See Tex. Gov’t Code Ann. § 554.006(a). The section also

requires an employee to invoke such grievance procedures within 90 days after a

violation of the statute occurs, or is discovered by, the employee. Id . § 554.006(b).

The time an employee uses in pursuing a grievance or appeal procedure is excluded

from the statute of limitations associated with the Act. Id. § 554.006(c).

But a plaintiff is not required to exhaust his grievance or appeal process before

filing suit. Section 554.006 further provides that, if the grievance or appeal procedure

does not result in a final decision within 60 days of its initiation, then an aggrieved

employee may elect either to (1) exhaust the procedure, in which case he must sue

within thirty days of exhaustion; or (2) terminate the procedure and sue within the

Act’s standard limitations period. Id. § 554.006(d). The statute thus does not forbid

the trial court from deciding matters before it unless or until another tribunal reaches

a decision; rather, the statute expressly contemplates that grievance proceedings may

be abandoned and never conclude. Nor does the statute bind a trial court with the

decision of a grievance or appeal process, in ways that a trial court is bound, for

example, upon hearing a case appealed from an administrative tribunal. See , e.g. , Tex.

Gov’t Code Ann § 2001.174 (Vernon 2000) (defining judicial review of state

agency administrative decisions).

Supreme Court Jurisprudence

In Dubai Petroleum Co. v. Kazi, the Texas Supreme Court held that courts

should not assume that all statutory requirements are jurisdictional requirements. 12

S.W.3d 71, 76 (Tex. 2000). The Court observed that a lack of jurisdiction deprives

the court of the power to act (other than to determine that it has no jurisdiction), and

to ever have acted. Id. at 74–75. Consequently, any jurisdictional irregularity

suscepts a judgment to attacks upon its finality, even if no party raised the issue at or

before the time of judgment. Id. at 76 . In Kazi, the court held that the Legislature did

not intend the statutory requirements for suing in Texas for an injury or death that

occurred in a foreign country to be jurisdictional. Id. at 77 .

The Texas Supreme Court applied its analysis in Kazi to the notice provision

of the Tort Claims Act in University of Texas Southwestern Medical Center at Dallas

v. Loutzenhiser, 140 S.W.3d 351 (Tex. 2004). There, the court reiterated the principle

that, absent the intent of the Legislature to fortify a statutory requirement with a

jurisdictional effect, none should be assumed in construing a statute. See id. at 359 .

Earlier this year, in The University of Texas Medical Branch at Galveston v.

Barrett, 159 S.W.3d 631 (Tex. 2005), the Texas Supreme Court stepped toward

harmonizing the Whistleblower Act with its jurisprudence in Kazi and Loutzenhiser .

There, the court held that, section 554.006 does not require an employee to exhaust

the grievance or appeal procedures before filing suit, and therefore a trial court could

abate an action filed prematurely under the Act. Id. at 632–33. It expressly noted that

an abatement protected the purpose of the statute whether or not its grievance

initiation requirements are jurisdictional in nature. Id. at 633. Of course, an

abatement is an exercise of a court’s power that presumes jurisdiction exists, and

includes the premise that the court will entertain the lawsuit to its final outcome at a

later date. See Butnaru v. Ford Motor Company, 84 S.W.3d 198 , 207–08 (Tex. 2002)

The court’s conclusion that an abatement protects the purpose of the statute also lends

support to a view that the statute was never intended to be an arbiter of trial court

jurisdiction in the first place. Rather, the Act establishes parameters under which a

recovery may be sought—much like a limitations statute, or a notice provision under

the Tort Claims Act. See Loutzenhiser, 140 S.W.3d at 359–60.

And, in Barrett , the Texas Supreme Court included a footnote expressly

disapproving of cases that have held “to the contrary” including one from this court

that relied upon Carter . See Barrett , 159 S.W.3d at 633 n.6 (expressly disapproving

of Harris County v. Lawson, 122 S.W.3d 276 , 281–84 (Tex. App.—Houston [1st

Dist.] 2003, pet. denied) (en banc)). The Texas Supreme Court’s disapproval of

Lawson includes a parenthetical noting that our holding in that case suggests that the

statutory prerequisites of the Whistleblower Act are jurisdictional. The footnote (with

page references to our jurisdictional discussion) intimates that our “suggestion” in

Lawson is wrong. Otherwise, the court need not have disapproved of it—after all, the

plaintiff in Lawson was held to have satisfied the statutory requirements at issue in

that case. Lawson, 122 S.W.3d at 284 . Together with Lawson , the Texas Supreme

Court similarly disapproved of a decision from the Waco Court of Appeals that held

the Act’s requirements to be jurisdictional. Barrett , 159 S.W.3d at 633 n.6 .

Accordingly, I respectfully disagree with the majority that Lawson was “disapproved

of on other grounds.”

Carter Lacks Vitality Post-Loutzenhiser

Our court decided Carter shortly after the Texas Supreme Court decided Kazi.

At the time, we declined to apply the principles the Texas Supreme Court enunciated

in Kazi —a wrongful death action—to a case involving an action under the

Whistleblower Act.

At the time, we read nothing in Kazi to indicate an intent to

broadly include other statutes. See Carter , 784 S.W.3d at 790. Even at the time, such

a narrow interpretation was questionable, given the Texas Supreme Court’s express

disavowal of longstanding Texas jurisprudence that tilted toward reading statutory

requirements as tantamount to jurisdictional ones. See Kazi , 12 S.W.3d at 76

(expressly overruling Mingus v. Wadley, 115 Tex. 551 , 285 S.W. 1084 (1926),

observing that better policy is to preserve finality of judgments when such reading

is not inconsistent with statutory language). Loutzenhiser placed the argument that

Kazi was confined to a narrow set of facts to rest. See Loutzenhiser, 140 S.W.3d at

358 (holding that, in viewing statutory language generally, Legislature is bound to

know consequences of making statutory requirement jurisdictional one, and courts

must analyze whether it was Legislature’s intent to confer such consequences). With

the benefit of the Texas Supreme Court jurisprudence that has emerged post- Carter ,

we can no longer rely upon the distinction that it drew from Kazi , for we now know

that statutory elements are not synonymous with jurisdictional elements . As the

distinction Carter relies upon is no longer valid, we should not continue to follow it,

and refrain from analyzing whether the Whistleblower Act’s grievance initiation

precepts are inherently jurisdictional.

Application of the Principles in Kazi and Loutzenhiser

Such an analysis would reveal that the grievance initiation provision of the

Whistleblower Act, like the notice provision of the Tort Claims Act, is not one in

which the Texas Legislature defines the power of the trial courts to hear and decide

cases, nor to require they be met as a condition precedent to waiver of immunity. The

Act merely requires claimants to initiate a dispute resolution process, and to comply

with prescribed time periods for filing suit—a specialized limitations provision of

sorts. Like the notice provision of the Tort Claims Act, a grievance initiation process

notifies the potential defendant of the claim against it and facilitates early resolution,

if possible, of the dispute. The statute does not require the process to continue or

even to conclude with a decision. It does not bind the trial court with findings, or

establish any sort of judicial review over the final decision of the grievance process,

thus expressing no preference “to have the agency resolve disputed issues of fact and

policy.” See Loutzenhiser, 140 S.W.3d at 361 (quoting Essenburg v. Dallas County ,

988 S.W.2d 188, 189 (Tex. 1998)). Hence, the statute imposes no express

jurisdictional constraints. Given the preference for the finality of judgments, and the

Legislature’s knowledge that, absent express definition, courts will not presume a

statute to be jurisdictional, nothing about the Act indicates a legislative intent to

define the power of the trial courts to hear and decide these cases, as opposed to

defining the substantive and procedural elements that must be met to obtain a

recovery . See id.

CONCLUSION

The grievance initiation requirements of the Whistleblower Act do not deprive

a trial court of its subject matter jurisdiction should a claimant fail to comply with

them. The trial court therefore did not err in denying The University of Houston’s

pleas to the jurisdiction, and I concur in the judgment.

Jane Bland

Justice

Panel consists of Chief Justice Radack and Justices Higley and Bland.

Justice Bland concurring.