Travis Central Appraisal District v. Diane Lee Norman

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON MOTION FOR REHEARING

NO. 03-06-00768-CV

Travis Central Appraisal District, Appellant

v.

Diane Lee Norman, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. D-1-GN-06-002709, HONORABLE GISELA D. TRIANA-DOYAL, JUDGE PRESIDING

O P I N I O N

We overrule the Travis Central Appraisal District's motion for rehearing, withdraw

our opinion and judgment issued October 10, 2008, and substitute the following in its place.

Diane Lee Norman brought suit against the Travis Central Appraisal District

("TCAD") for retaliatory discharge, alleging that she was fired by TCAD for filing a workers'

compensation claim. See Tex. Lab. Code Ann. §§ 451.001 (1), .002 (West 2006). TCAD filed a plea

to the jurisdiction, arguing that Norman had not exhausted her administrative remedies because she

did not file any grievance with TCAD before filing suit. In this interlocutory appeal, TCAD urges

that the district court erred in denying its plea to the jurisdiction because Norman's failure to exhaust

TCAD's grievance process deprived the court of subject-matter jurisdiction. Because we hold that

Norman was not required to utilize TCAD's grievance procedures in order to confer subject-matter

jurisdiction on the trial court, we affirm the district court's order denying TCAD's plea to

the jurisdiction.

BACKGROUND

Norman was hired by TCAD, a political subdivision of the State of Texas, see

Tex. Tax Code Ann. § 6.01 (c) (West 2008), as a probationary employee in January of 2006. On

June 15, 2006, she filed a workers' compensation claim; later that day, she received written notice

that she had been terminated based on her work performance. Norman filed suit for

retaliatory discharge under the Texas Anti-Retaliation Act (the "Act"), see Tex. Lab. Code

Ann. §§ 451.001 -.003, which provides that a person may not be discharged for filing a workers'

compensation claim in good faith, see id. § 451.001(1).

TCAD filed a plea to the jurisdiction, arguing that Norman had not complied with

TCAD's grievance policy and therefore had failed to exhaust her administrative remedies, depriving

the trial court of subject-matter jurisdiction. In support of its plea, TCAD attached excerpts from

its personnel policy handbook outlining its internal grievance procedure and an affidavit from

Norman's supervisor, Mark Price, stating that Norman did not file a grievance at any time after her

termination in accordance with TCAD's policy, a fact that Norman does not dispute. Price also

testified at the hearing on the plea to the jurisdiction, stating that to his knowledge, all of TCAD's

procedures regarding the grievance process applied to Norman as a probationary employee. The

court admitted an "employee acknowledgment form" signed by Norman, stating that she had

received and read the Personnel Policies Handbook.

TCAD's policy handbook provides, in relevant part, that "[a]n employee who has a

complaint concerning disciplinary probation, suspension, termination, demotion, or denial of a

promotion of a qualified employee . . . shall have the right to file a grievance." The manual then

describes a multi-step grievance process, beginning with informal resolution of the complaint and

continuing with formal proceedings before the department director, the grievance committee, and

ultimately the chief appraiser, along with time limits for completing each step. In the event that the

process reaches the grievance-committee stage, the manual sets forth that the complainant shall have

the right or may be required to appear before the committee to explain the complaint and the

complainant's disagreement with the action that was taken. The complainant also has the right to

have a representative at the hearing and may present documentation on his behalf. The committee

"shall have the right to call upon others in order to ascertain pertinent facts and render a

recommendation."

Norman responded that she was not required to exhaust administrative remedies

before filing suit and that TCAD's grievance policy was neither available nor applicable to her claim

for retaliatory discharge. At the hearing, she argued that nothing in chapter 451 of the labor code

mentions exhaustion of remedies as a jurisdictional prerequisite and that exhaustion is not required

unless the legislature has vested an administrative agency with exclusive jurisdiction over a

controversy. She also cross-examined Price concerning statements he had made that the personnel

manual did not apply to probationary employees in its entirety, calling into question whether the

grievance process outlined in the personnel manual was available to her as a probationary employee.

Price testified that some of the provisions (such as those regarding pre-termination warnings and

performance counseling) applied only to regular employees and that a different section of the manual

was devoted specifically to policies governing probationary employees; according to Price, new

probationary employees are apprised of those policies at the time of hiring. However, Price stated

that the grievance procedures applied to all of TCAD's employees, including probationary

employees, although this was not expressly stated in the manual. Price further testified that each new

employee is given a copy of the personnel manual, which includes information on TCAD's grievance

process, but that it is not TCAD's practice to tell an employee that he has the right to file a grievance

when he is terminated.

After the hearing, the trial court denied TCAD's plea to the jurisdiction, and this

appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(8) (West Supp. 2008)

(permitting interlocutory appeal from order that "grants or denies a plea to the jurisdiction by a

governmental unit").

STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of

subject-matter jurisdiction. Harris County v. Sykes , 136 S.W.3d 635, 638 (Tex. 2004). Whether a

court has subject-matter jurisdiction is a question of law that we review de novo. Texas Dep't of

Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004). Likewise, we review de novo

whether a party has alleged facts that affirmatively demonstrate a trial court's subject-matter

jurisdiction and whether undisputed evidence of jurisdictional facts establishes a trial court's

jurisdiction. Id. If the pleadings do not 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. Id. at 226-27 . If the

pleadings affirmatively negate jurisdiction, then a plea to the jurisdiction may be granted without

allowing an opportunity to amend. Id. at 227 . Unless a pled jurisdictional fact is challenged and

conclusively negated, it must be taken as true for purposes of determining subject-matter jurisdiction.

Id. at 226 . In reviewing a plea to the jurisdiction, an appellate court does not look to the merits of

the case but considers only the pleadings and evidence relevant to the jurisdictional inquiry.

Id. at 227 .

ANALYSIS

On appeal, TCAD argues that the district court erred in denying its plea to the

jurisdiction, which asserted that Norman was required to comply with TCAD's internal grievance

procedures before she could file suit against TCAD, a governmental entity, for retaliatory discharge

under chapter 451 of the labor code. (1) According to TCAD, its employee-grievance process is an

administrative remedy that Norman was required to exhaust in order to confer subject-matter

jurisdiction on the trial court. While recognizing that exhaustion of administrative remedies is

generally required only when the legislature has vested an administrative agency with

exclusive jurisdiction to make the initial determination in a dispute, see, e.g. , Subaru of Am., Inc.

v. David McDavid Nissan, Inc. , 84 S.W.3d 212, 221 (Tex. 2002); Gates v. Texas Dep't of

Family & Protective Servs. , 252 S.W.3d 90, 96 (Tex. App.--Austin 2008, no pet.), TCAD urges that

exhaustion is not limited to such situations and should be held to apply in this case.

Chapter 451 contains no exhaustion requirement and makes no reference to any

administrative procedure for resolving disputes prior to filing suit for retaliatory discharge. See

Tex. Lab. Code Ann. §§ 451.001 -.003; see also Van Indep. Sch. Dist. v. McCarty , 165 S.W.3d 351 ,

353 n.8 (Tex. 2005). The chapter provides, in its entirety:

§ 451.001. DISCRIMINATION AGAINST EMPLOYEES PROHIBITED.

A person may not discharge or in any other manner discriminate against an employee

because the employee has:

(1) filed a workers' compensation claim in good faith;

(2) hired a lawyer to represent the employee in a claim;

(3) instituted or caused to be instituted in good faith a proceeding under Subtitle

A [the Texas Workers' Compensation Act]; or

(4) testified or is about to testify in a proceeding under Subtitle A.

§ 451.002. REMEDIES; BURDEN OF PROOF.

(a) A person who violates Section 451.001 is liable for reasonable damages

incurred by the employee as a result of the violation.

(b) An employee discharged in violation of Section 451.001 is entitled to

reinstatement in the former position of employment.

(c) The burden of proof in a proceeding under this section is on the employee.

§ 451.003. INJUNCTION.

A district court may restrain, for cause shown, a violation of Section 451.001.

Tex. Lab. Code Ann. §§ 451.001 -.003.

The San Antonio court of appeals, in holding that a retaliatory-discharge plaintiff is

not required to exhaust administrative remedies before filing suit, gave great weight to the

legislature's omission of an exhaustion requirement within the statute itself. See Mancera v. City

of Laredo , No. 04-04-00301, 2005 Tex. App. LEXIS 1770 , at *13 (Tex. App.--San Antonio

Mar. 9, 2005, pet. denied) (mem. op.) (holding that exhaustion is not required because neither

chapter 451 nor its predecessor statute included requirement that individual must go through

administrative process prior to filing claim). After noting cases involving retaliatory-discharge

actions "that were filed directly without any mention of an exhaustion of remedies requirement," the

court declined to read such a requirement into the statute. Id. at *14-15 (citing Kerrville State Hosp.

v. Fernandez , 28 S.W.3d 1, 2-4 (Tex. 2000); Baptist Mem'l Healthcare Sys. v. Casanova , 2 S.W.3d

306, 308-09 (Tex. App.--San Antonio 1999, no pet.)). (2)

Like our sister court, we can discern no intent on the part of the legislature to require

a plaintiff to exhaust administrative remedies before filing suit for retaliatory discharge. It is well

settled that, when interpreting a statutory provision, we must ascertain and effectuate the legislative

intent. Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc. , 145 S.W.3d 170,

176 (Tex. 2004); see also Crown Life Ins. Co. v. Casteel , 22 S.W.3d 378, 383 (Tex. 2000) ("The

primary rule in statutory interpretation is that a court must give effect to legislative intent."); Ex parte

Roloff , 510 S.W.2d 913, 915 (Tex. 1974) ("It is the duty of the court to ascertain the legislative

intent."). If the statutory text is unambiguous, a court must adopt the interpretation supported by the

statute's plain language unless that interpretation would lead to absurd results. See Tune v. Texas

Dep't of Pub. Safety , 23 S.W.3d 358, 363 (Tex. 2000) ("We must enforce the plain meaning of an

unambiguous statute.").

Texas's retaliatory-discharge cause of action is a legislatively created exception to

the at-will-employment doctrine. Austin v. Healthtrust, Inc. , 967 S.W.2d 400, 402 (Tex. 1998).

Chapter 451 has both remedial and deterrence objectives; its purpose is "to protect persons entitled

to benefits under the workers' compensation act and to prevent them from being discharged for filing

claims to collect those benefits." Trico Tech. Corp. v. Montiel , 949 S.W.2d 308, 312 (Tex. 1997).

By enacting these provisions, the legislature chose to create a private cause of action, rather than an

administrative process, to provide redress for an employee who has been terminated in retaliation

for filing a workers' compensation claim. See Jean C. Love, "Retaliatory Discharge for Filing a

Worker's Compensation Claim," 37 Hastings L. J. 551, 554-56 (1986) (Texas is one of six states that

created statutory cause of action, rather than administrative remedy, for redressing retaliatory

discharge); compare Tex. Lab. Code Ann § 451.001-.003, with Cal. Lab. Code § 132a(4)

(West Supp. 1986) (proceedings for reinstatement and reimbursement are to be instituted by filing

petition with appeals board, which is vested with "full power, authority, and jurisdiction to try and

determine finally all matters specified in this section"), and N.Y. Work. Comp. Law § 120

(McKinney Supp. 2003) (complaint alleging unlawful discriminatory practice must be filed with

workers' compensation board and, upon finding of discrimination, board shall order that employee

be compensated for loss of wages and such fees as fixed by board).

The fact that a suit for retaliatory discharge may be brought against a governmental

entity (3) does not by itself assure us that the legislature intended to require public employees to exhaust

the internal grievance procedures of those entities. See, e.g. , In re Discovery Operating, Inc. ,

216 S.W.3d 898, 903 (Tex. App.--Eastland 2007, no pet.) (holding that while legislature designated

railroad commission as agency responsible for regulating subject matter of suit, overall regulatory

scheme indicates intent to create private cause of action to be litigated in court, rather than by

agency); see also In re Apache Corp. , 61 S.W.3d 432, 435-36 (Tex. App.--Amarillo 2001, no pet.)

(same). If the legislature had intended such review as a prerequisite to filing suit, it could easily have

included such a provision in chapter 451, as it had elsewhere in title 5 of the labor code. For

example, the legislature has required a person aggrieved by the decision of the workers'

compensation commission to exhaust administrative remedies before seeking judicial review in

district court. See Tex. Lab. Code Ann. § 410.251 (party that has exhausted its administrative

remedies under this subtitle and that is aggrieved by final decision of appeals panel may seek judicial

review under this subchapter). The same is required of plaintiffs seeking judicial review of

employment-discrimination claims brought under chapter 21 of the labor code. See Tex. Lab. Code

Ann. §§ 21.001 -.556 (West 2006 & Supp. 2007) (Texas Labor Code chapter 21 employment-discrimination claims, including federal Title VII, Americans with Disabilities Act, and state

whistleblower claims, require exhaustion of administrative remedies); see also Mancera , 2005

Tex. App. LEXIS 1770 , at *13-14 ("Chapter 21, which does contain an exhaustion of remedies

provision, very specifically refers to individuals who bring actions under Chapter 21. Mancera did

not bring a claim under Chapter 21," but under "Chapter 451, which does not include an exhaustion

of remedies requirement.").

TCAD avers that its grievance procedures should be interpreted as administrative

remedies because they are procedures developed by a governmental entity. We disagree. The mere

fact that TCAD is a political subdivision does not assure us that its internal policies constitute an

"administrative remedy" in the sense that we have come to view that term. TCAD cites no authority,

nor have we found any, indicating that its internal grievance policy is the sort of administrative

review process that a complainant would generally be required to utilize in order to confer

jurisdiction on the reviewing court. In this case, it is TCAD, rather than the legislature, that has

crafted the procedures in question, and TCAD has directed us to no statutory authority investing

TCAD, or tax appraisal districts in general, with the authority to engage in the review of an

employee's retaliatory-discharge claim.

As Norman points out in her response, Texas law does not require that every

governmental employee must, in all circumstances, exhaust an agency's internal administrative

procedure before filing suit against a governmental entity. For example, as this Court recently held

in Austin Independent School District v. Lowery , 212 S.W.3d 827 (Tex. App.-- Austin 2006 , pet.

denied), a school employee is not required to exhaust a school district's administrative remedies

"simply because she was employed by a school district." Id. at 831. In that case, the school district

filed a plea to the jurisdiction on the basis that Lowery was required to exhaust the district's

grievance-review procedures. We acknowledged that the legislature has given the commissioner of

education exclusive jurisdiction over certain claims involving "the school laws of the state" and

actions or decisions of any school district board that violate the school laws of the state or any

provision of a written contract between the school district and a school district employee, see Tex.

Educ. Code Ann. § 7.057 (a) (West 2006), and that this grant of exclusive jurisdiction means that

such claimants must exhaust the local grievance procedures of a school district before filing suit.

Lowery , 212 S.W.3d at 831 (citing Texas Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist. ,

830 S.W.2d 88, 90 (Tex. 1992)). However, we looked to the fact that Lowery's specific

complaint--an employment-discrimination suit brought under chapter 21 of the Act--did not fall

within the legislature's grant of exclusive jurisdiction to the agency: Lowery's suit was not related

to the "school laws of the state," nor did it concern a written contract between Lowery and the

district because, as an at-will employee, she was not under contract. Id. at 831-32. Therefore, she

need only have exhausted the administrative remedies imposed by the Texas Commission on Human

Rights Act, see Tex. Lab. Code Ann. §§ 21.001 -.556 (West 2006 & Supp. 2008), and was not

required to exhaust her remedies under the education code by complying with the district's grievance

process. Lowery , 212 S.W.3d at 834 .

In so holding, we rejected the school district's arguments in favor of a broad rule that

the courts must defer to governmental entities to resolve disputes through their own administrative

procedures in all cases. While recognizing the general principle that matters concerning school

administration are best handled by local authorities, we declined to extend this deference beyond the

subset of cases involving school districts where the legislature had actually mandated an exhaustion

requirement. See id. at 831 ("[W]e have not found any statute that permits independent school

districts to adopt rules pertaining to workplace discrimination."). Lowery's discrimination claim,

although brought against a governmental entity, did not involve issues that the governmental entity

had been granted the authority to resolve, thereby making it "the proper administrative authority"

to review her claims. Id.

Similarly, Norman's retaliatory-discharge claim against TCAD is not a matter that

the legislature has granted a tax appraisal district the authority to decide. The purpose behind the

exhaustion-of-administrative-remedies doctrine is not merely to allow governmental entities to

resolve disputed issues of fact, but to ensure "that the appropriate body adjudicates the dispute." See

Essenburg v. Dallas County , 988 S.W.2d 188, 189 (Tex. 1998); see also Strayhorn v. Lexington Ins.

Co. , 128 S.W.3d 772, 780 (Tex. App.--Austin 2004), aff'd , 209 S.W.3d 83 (Tex. 2006). The

legislature decides that an administrative agency is the appropriate body to resolve an issue when it

provides an administrative procedure for that purpose. Strayhorn , 128 S.W.3d at 780 . Here, the

legislature has not provided or referenced an administrative-review process in the statute or in any

way indicated that a tax appraisal district has the authority to adopt procedures relating to retaliatory

discharge of an employee for filing a workers' compensation claim. Where the legislature has not

expressed an intent to grant an agency the sole authority to make the initial determination of a

dispute, there is no jurisdictional issue barring a court from adjudicating the dispute. Department

of Protective & Regulatory Servs. v. Schutz , 101 S.W.3d 512, 518 (Tex. App.--Houston [1st Dist.]

2002, no pet.). Because the courts are not divested by an agency of the subject-matter jurisdiction

they would otherwise possess unless the legislature has granted the agency exclusive jurisdiction or

the sole power to make the initial determination in the dispute, see Subaru , 84 S.W.3d at 221 ;

Bexar Metro. Water Dist. v. City of Bulverde , 156 S.W.3d 79, 90 (Tex. App.-- Austin 2004 , pet.

denied), TCAD has not shown that the district court lacked subject-matter jurisdiction over

Norman's suit.

According to TCAD, however, exhaustion of administrative remedies is a

requirement even when the legislature has not given exclusive jurisdiction to an agency, because

"plaintiffs seeking review of the decision of a governmental entity must satisfy the jurisdictional

prerequisite of exhaustion of administrative remedies prior to bringing suit against the entity."

Under TCAD's view, the relevant inquiry is not whether the legislature has given an agency the

power to initially decide the dispute, but whether the suit is brought against a government entity.

In support of its position, TCAD cites Dallas County v. Gonzales , 183 S.W.3d 94

(Tex. App.--Dallas 2006, pet. denied) (op. on reh'g). (4) In Gonzales , the Dallas court determined that

the plaintiff had failed to exhaust his administrative remedies because, when he filed his grievance

in accordance with the county's internal procedures, he did not raise his anti-retaliation claim under

chapter 451. Id. at 107 . Citing McCarty and Wilmer-Hutchins Independent School District

v. Sullivan , 51 S.W.3d 293 (Tex. 2001) (per curiam), two retaliatory-discharge cases brought by

school district employees, the Gonzales court determined that the plaintiff's "failure to exhaust

administrative remedies before bringing suit on the Anti-Retaliation Law deprives the trial court of

jurisdiction over that cause of action." Id.

In reaching this conclusion, the Dallas court did not address the fact that both

McCarty and Wilmer-Hutchins , the sole authorities on which it based its jurisdictional holding, dealt

with suits against school districts. As we have previously discussed, exhaustion of a school district's

grievance procedures is required in a suit that concerns (1) the school laws of the state or (2) actions

or decisions of any school district board of trustees that violate the school laws of this state or a

provision of a written contract between the school district and a school district employee. See

Tex. Educ. Code Ann. § 7.057 (a) (West 2006); see also Lowery , 212 S.W.3d at 831 . While the

plaintiffs' retaliatory-discharge claims arguably did not fall within this grant of exclusive jurisdiction

under the education code, it was uncontested by the parties in both McCarty and Wilmer-Hutchins

that the school employees were required to exhaust their administrative remedies. See McCarty , 165

S.W.3d at 353 (neither party challenges court of appeals' holding that exhaustion of remedies was

prerequisite to trial court's jurisdiction); Wilmer-Hutchins , 51 S.W.3d at 294 (plaintiff acknowledges

that exhaustion of remedies is prerequisite to trial court's jurisdiction "in a case like this involving

disputed fact issues").

Furthermore, after pointing out that chapter 451 of the labor code contains no

exhaustion requirement, but that "the court below and others have required exhaustion of retaliation

complaints by school employees," the McCarty court stated, "As we did in Wilmer-Hutchins , we

again assume this is correct without deciding it as McCarty 'acknowledges that exhaustion of

remedies is a prerequisite to the trial court's jurisdiction in a case like this involving disputed fact

issues.'" 165 S.W.3d at 353 n.8 (quoting Wilmer-Hutchins , 51 S.W.3d at 294 ).

Thus, the supreme court in McCarty and Wilmer-Hutchins expressly reserved the

question of whether a school employee was required to exhaust administrative remedies before filing

a retaliation suit against the school district. The court did not indicate that an exhaustion rule would

apply beyond "a case like this" involving "retaliation complaints by school employees." See id.

Given these statements, we do not agree with TCAD that McCarty and Wilmer-Hutchins impose a

general exhaustion requirement whenever a plaintiff brings a chapter 451 retaliatory-discharge claim

against a governmental entity. Nor are we convinced by the reasoning of the Gonzales court in

holding that exhaustion of administrative remedies is universally required in order to confer

jurisdiction over a chapter 451 retaliatory-discharge claim. (5) Accordingly, we reject TCAD's

argument that "the only plausible basis for exhaustion in these cases is that the employees were

bringing suit against their governmental entity employer." (6)

The cases on which TCAD primarily relies, Gonzales and Martin K. Eby , can be

distinguished for the fact that under each of the relevant statutory schemes, there was a separate

statutory basis for requiring exhaustion of remedies apart from chapter 451 itself. Because we can

infer no intent on the part of the legislature to create an exhaustion requirement as a prerequisite to

filing suit under chapter 451, we hold that, unless a plaintiff is subject to an exhaustion-of-remedies

requirement established by other applicable law, it is not necessary to exhaust administrative

remedies in a chapter 451 retaliatory-discharge action in order to confer subject-matter jurisdiction

on the trial court.

In its motion for rehearing, TCAD argues that the trial court also lacked subject-matter jurisdiction on the basis of TCAD's governmental immunity. See Mapco, Inc. v. Carter ,

817 S.W.2d 686, 687 (Tex. 1991) (stating that lack of jurisdiction is fundamental error and may be

raised for first time in motion for rehearing). The Texas Supreme Court has held that a political

subdivision's governmental immunity is waived for retaliatory-discharge claims under chapter 451.

See City of LaPorte v. Barfield , 898 S.W.2d 288, 298-99 (Tex. 1995); see also Kerrville State Hosp. ,

28 S.W.3d at 9 -10 (citing Barfield and holding that state agencies' sovereign immunity is also

waived under chapter 451).

TCAD argues that Barfield has been superceded by Tooke v. City of Mexia ,

197 S.W.3d 325 (Tex. 2006). In Tooke , the supreme court held that certain phrases, standing alone,

do not constitute the clear and unambiguous language necessary to waive governmental immunity. (7)

197 S.W.3d at 328-29 . However, despite TCAD's suggestions to the contrary, the Tooke holding

applies only to those statutes containing the specified phrases. See id. at 342 ("[T]he words 'sue and

be sued', standing alone, are if anything, unclear and ambiguous. The effect of similar clauses, like

'plead and be impleaded', is indistinguishable, and therefore those clauses do not, by themselves,

waive immunity."). Tooke does not address the type of immunity waiver found in Barfield , in which

the supreme court held that because section 504.003 of the labor code requires public employees to

elect between a retaliatory-discharge claim under chapter 451 and a whistleblower claim under

chapter 554, the fact that immunity is clearly waived under the whistleblower statute suggests that

immunity is also waived under chapter 451. See Barfield , 898 S.W.2d at 298 ("This election-of-remedies provision . . . persuades us, in the end, that the Legislature must have intended to waive

political subdivisions' immunity for liability imposed by the Anti-Retaliation Law [in labor code

chapter 451]."). Because Tooke 's holding is limited and does not address the type of immunity

waiver found in Barfield , we decline TCAD's invitation to view Barfield as being overruled, absent

guidance to that effect from the supreme court.

CONCLUSION

Chapter 451 of the labor code does not require a plaintiff to exhaust the administrative

procedures of a governmental entity in order to confer subject-matter jurisdiction in a suit for

retaliatory discharge. Furthermore, TCAD's governmental immunity is waived for retaliatory-discharge claims under chapter 451. Because there was no error in the denial of TCAD's plea to the

jurisdiction, we affirm the judgment of the district court.

___________________________________________

Diane M. Henson, Justice

Before Chief Justice Law, Justices Waldrop and Henson

Affirmed on Motion for Rehearing

Filed: December 19, 2008

1. TCAD presents this argument in three separate issues. However, its first two issues, which

assert that "the standard for review of issues of law is de novo" and that "a plea to the jurisdiction

is the proper method to challenge a court's subject matter jurisdiction," are simply correct and

unchallenged statements of law, rather than issues presented for our review. While we will not

separately address those two points, we will nonetheless treat TCAD's contention that the trial court

erred in denying its plea to the jurisdiction "as covering every subsidiary question that is fairly

included." See Tex. R. App. P. 38.1.

2. See also Denton County v. Johnson , 17 S.W.3d 46, 48 (Tex. App.--Fort Worth 2000,

pet. denied); Trevino v. Kent County , 936 S.W.2d 488, 492-93 (Tex. App.--Amarillo 1996,

writ denied).

3. A cause of action for retaliatory discharge may be brought against political subdivisions,

see City of LaPorte v. Barfield , 898 S.W.2d 288, 296 (Tex. 1995) (holding that legislature waived

political subdivisions' immunity from suit for purpose of Anti-Retaliation Act), as well as private

employers, see Kerrville State Hosp. v. Fernandez , 28 S.W.3d 1, 2 (Tex. 2000).

4. See also Davis v. Dallas County Schools , No. 05-07-00822-CV, 2008 Tex. App. LEXIS

4403 (Tex. App.--Dallas 2008, no pet. h.) (citing Dallas County v. Gonzales , 183 S.W.3d 94, 107

(Tex. App.--Dallas 2006, pet. denied) (holding that chapter 451 requires employee to exhaust

administrative procedures).

5. Norman also argues that Gonzales , a retaliation suit brought against a county, should be

distinguished on the basis that the legislature had expressly delegated authority over the discharged

plaintiff's claims to an administrative body under the local government code, similar to its delegation

of authority to decide disputes related to school law under the education code. See Tex. Loc. Gov't

Code Ann. §§ 158.001 -.040 (West 2008) (governing county civil service commissions, which have

authority over county employee layoffs and dismissals, disciplinary actions, and grievance

procedures). As a county employee, Gonzales was required by statute to exhaust the procedures

promulgated by the Dallas county civil service commission before appealing a final decision of the

commission in district court, subject to review under the substantial-evidence rule. See

id. §§ 158.012-.0122. The labor code, Norman points out, contains no such provision delegating

exclusive original jurisdiction to any administrative body, let alone a tax appraisal district, over

retaliation claims.

6. TCAD also cites a case from the Fifth Circuit in support of its assertion that an exhaustion

requirement does not depend on the grant of exclusive jurisdiction to an administrative agency.

See Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit , 369 F.3d 464, 467 (5th Cir. 2004)

("Texas courts generally do require a party to exhaust its administrative remedies before seeking

judicial review of the decision of a governmental entity."). However, the court based its holding that

exhaustion of DART's dispute-resolution procedures was required before filing suit for breach of

contract on the fact that the legislature "explicitly delegated to DART the power to 'adopt and

enforce ' dispute-resolution procedures" in the transit authority's enabling legislation. Id. at 469 .

TCAD does not point to any comparable authority, nor have we found any, indicating that the

legislature intended to delegate to tax appraisal districts the authority to adopt and enforce grievance

procedures governing personnel actions.

7. The opinion specifically refers to statutes providing that individuals and entities "may 'sue

and (or) be sued', '(im)plead and (or) be impleaded', 'be impleaded', 'prosecute and defend',

'defend or be defended', 'answer and be answered', 'complain and (or) defend', or some

combination of these phrases, in court." Tooke v. City of Mexia , 197 S.W.3d 325, 328 (Tex. 2006).