the University of Texas Medical Branch at Galveston D/B/A John Sealy Hospital ("UTMB") v. Kevin Barrett, M.D.

Rehearing En Banc Granted, Opinions Filed December 12, 2002 Withdrawn,

Affirmed and En banc Majority and Dissenting Opinions o

Rehearing En Banc Granted, Opinions Filed December 12,

2002 Withdrawn, Affirmed and En banc Majority and Dissenting Opinions on

Rehearing En Banc filed July 31 , 2003

In The

Fourteenth Court of Appeals

____________

NO.

14-01-00529-CV

____________

THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON

d/b/a

JOHN SEALY HOSPITAL ( A UTMB @ ),

Appellant

V.

KEVIN BARRETT, M.D. , Appellee

On

Appeal from the 122nd District Court

Galveston County, Texas

Trial

Court Cause No. 95CV0834

E

N B A N C D I S S E N T I N

G O P I N I O N O N R

E H E A R I N G

Now

we are engaged in a great struggle to determine whether the Whistleblower Act,

clearly formed and narrowly tailored to waive sovereign immunity only when

strictly followed, can long endure as originally conceived. Because the majority adds new terms to an

unambiguous statute, I respectfully dissent.

But first, the question is squarely presented Is this en banc

exercise required by the rules of appellate procedure?

Where is the conflict?

The

original panel opinion in this case has been withdrawn by the majority without

any

explication of the basis for that action pursuant to Rule 41.2(c) of the Rules

of Appellate Procedure. Tex. R. App. P. 41.2(c). Rule 41.2(c) sets out the circumstances under

which this court may hear a case en banc:

En banc

consideration of a case is not favored and should not be ordered unless

necessary to secure or maintain uniformity of the court = s

decisions or unless extraordinary circumstances require en banc consideration.

Tex. R. App. P. 41.2(c).

The rule

is clear. There are only two bases on

which to grant en banc review. Because

the majority has neither identified a conflict in our jurisprudence regarding

the Whistleblower Act nor articulated extraordinary circumstances requiring

full court review, en banc review is not warranted here. If this court does not follow the Rules of

Appellate Procedure, this failure undermines the legitimacy of our en banc

opinions by suggesting there are other, unstated, bases, for engaging in full

court review, and withdrawing the panel opinion.

Overview

This

case involves the Whistleblower Act, which provides a waiver of sovereign

immunity, to the extent of liability for the relief allowed under the Act, when

a party seeks redress for retaliatory

measures taken by a governmental entity.

Tex. Gov = t Code Ann. ' 554.0035 (Vernon Supp. 2003).

The sole issue presented here is whether failure to comply with the

steps mandated by the Legislature in Texas Government Code section 554.006 C which

failure is the filing of suit before the expiration of 60 days following the

date of initiation of grievance procedures C deprives a trial court of jurisdiction to hear the employee = s

suit, or merely requires the trial court to abate the suit during the required

period. All members of this court agree

the 60-day waiting period in section 554.006(d) is mandatory,

leaving in dispute only the question of the consequence of failure to comply

with that requirement. I would follow

the plain language of the Act. A If

a final decision [under the grievance or appeal procedures] is not rendered

before the 61st day after the date procedures are initiated, @

the employee may elect to exhaust the applicable procedures and file suit, or

terminate the grievance or appeal procedures and sue promptly. See Tex.

Gov = t Code Ann. ' 554.006(d) (Vernon Supp. 2003). And I would hold those provisions to be

jurisdictional prerequisites to the initiation of litigation against the

sovereign. All Texas courts that have

addressed this precise issue have held that the 60-day waiting period is a

jurisdictional prerequisite to filing suit.

However, ignoring this authority, the majority amends the Act to include

an abatement provision, in derogation of the statutory language. This court may interpret statutes, but it may

not amend them.

Applying

the language chosen by the Legislature in the Act to the facts sub judice , I would

hold that the trial court lacked jurisdiction over Barrett = s

premature filing of his suit before expiration of 60 days following the

initiation of action under the grievance procedures.

I. Standard

of Review C Statutory Construction

The

Whistleblower Act provides for a limited waiver of immunity from liability and

immunity from suit. Over 150 years ago

the supreme court held A [a] state cannot be sued in her own courts without her own

consent, and then, only in the manner indicated by that consent. @ Hosner v.

DeYoung , 1 Tex. 764 (1847). Because a state may withhold its consent

entirely, it may impose such conditions and limitations on its consent to be sued

as it may deem desirable. Hardt v. Tex. Dept. of Corrections , 530

S.W.2d 897, 898 (Tex. Civ . App. C Austin

1975, no writ). A grant of consent to sue

the state, being in derogation of sovereignty, must be strictly construed. Buchanan v. State , 89 S.W.2d 239, 239

(Tex. Civ . App. C Amarillo 1935, writ ref = d). Conditions and

limitations imposed therein are jurisdictional facts, and there must be full

compliance with them. State v. Isbell ,

94 S.W.2d 423, 424 (Tex. 1936). When courts stray from the plain language of

a statute, they risk encroaching on the Legislature = s

function to decide what the law should be.

Fitzgerald v . Advanced Spine Fixation Sys., Inc .,

996 S.W.2d 864, 866 (Tex. 1999). When

suit is based entirely on a statutory cause of action arising under a statute,

the statutory provisions are mandatory and exclusive and must be followed or

the action in not maintainable because of a lack of jurisdiction. Green v. Aluminum Co. of Am. , 760

S.W.2d 378, 380 (Tex. App. C Austin 1988, no writ).

The

foregoing standard of review for construing statutes waiving sovereign immunity

is essential. W. Wendell Hall has

eloquently articulated the bases for including the standard of review in every

opinion:

Standards

of review distribute power within the judicial branch by defining the

relationship between trial and appellate courts. These standards frame the issues, define the

depth of review, assign power among judicial actors, and declare the proper

materials to review. Standards of review

also define the parameters of a reviewing court = s

authority in determining whether a trial court erred and whether the error

warrants reversal. Standards of review

are simply the appellate court = s

measuring stick . . .. Standards of

review were never meant to be the end of the inquiry but rather a frame and

limit on the substantive law. @ (footnotes

and internal quotation marks omitted)

W. Wendell

Hall, Standards of Review in Texas , 34 St. Mary = s

Law Journal 1, 8 (2002).

The

Majority concedes that statutes waiving sovereign immunity are strictly

construed, citing Brainard v. State , 12

S.W.3d 6, 28 (Tex. 1999). Nevertheless,

the guiding hand of the standard of review seems to be window dressing for the

majority, and not the A court = s measuring stick. @

II. Abatement

Is Illegitimate

The

majority has peered into the penumbra of section 554.006 of the Whistleblower

Act and discerned, within that murky haze, a remedy for litigants unwilling to

engage in the appropriate grievance or appeal procedures for the required 60

days. This miracle remedy is abatement of

the action to preserve jurisdiction, even though the clear language of the Act

lacks even the slightest hint of that concept.

The majority = s act of creating the right of abatement in this statute

is an ad hoc rule of construction.

This approach is wrong. If the

meaning of the statutory language is unambiguous, we adopt the interpretation

supported by the plain meaning of the provision = s words. Fitzgerald ,

996 S.W.2d at 865 . The majority = s

search for new meaning in this unambiguous statute is illegitimate. A When the purpose of a legislative enactment is obvious from the

language of the law itself, there is nothing left to construction. In such case it is vain to ask the courts to

attempt to liberate an invisible spirit, supposed to live concealed within the

body of the law. @ Dodson v. Bunton , 17 S.W. 507, 508 (Tex. 1891). The clear language of this Act C requiring

grievance procedures to precede litigation C cannot be rewritten under the guise of statutory construction

to achieve a result obviously not intended by the legislature.

Here,

the majority has ignored the plain language of the statute to liberate the

invisible spirit of abatement purportedly lurking within the Act. Such practice usurps the function of the

Legislature to decide what the law should be.

Fitzgerald , 996 S.W.2d at 866 .

Indeed, the majority states A [w]e cannot add conditions where the Legislature did not, @

but then proceeds to do just that by engrafting abatement onto the

Whistleblower Act.

III. Other

Similar And Dissimilar Statutes

A. Similar Statutes

In

construing a statute, courts may consider other statutes on the same or similar

subject. Tex. Co. v. Schriewer , 38 S.W.2d 141, 143 (Tex. Civ .

App. C Waco

1931), aff = d in part, ref = d in part on other grounds ,

53 S.W.2d 774 (Tex. Comm. App. 1932, holding approved). The court in Schroeder v. Texas Iron

Works, Inc ., addressed the requirements of the Commission on Human Rights

Act, [1]

which contained a provision permitting a person aggrieved by an unlawful

employment practice to file a complaint with the Commission. 813 S.W.2d 483, 486 (Tex. 1991). Following the completion of Commission action

on the complaint, the complainant may obtain authorization from the Commission

to file a civil action against the respondent.

Id .

The

supreme court held exhaustion of administrative remedies to be a mandatory

prerequisite to filing a civil action alleging violations of that Act. Id . at 488. An employee = s failure to file a complaint with the Commission and pursue

his administrative remedies there creates a jurisdictional bar to his

discrimination suit. Id . Because the statute does not give an

unconditional private right of action, the suit is based entirely on the

statute and the statutory provisions are, therefore, mandatory and exclusive

and must be followed or the action is not maintainable because of a lack of

jurisdiction. Id .

The

Whistleblower Act serves a different purpose C it protects employees of governmental entities from improper

discharge C but it, too, has preliminary procedures the employee must

follow in order to invoke the court = s jurisdiction. The

majority = s

cavalier application of abatement here is logically inconsistent with the

supreme court = s analysis of the predecessor statute to the present Texas

Commission on Human Rights Act. If

abatement was not proper there, what circumstances make it applicable

here? The majority does not address that

issue, choosing instead sua sponte to impose an abatement requirement.

B. Disimmilar Statutes

The majority cites the Deceptive Trade

Practices Act and Medical Liability and Insurance Improvement Act, both of

which permit abatement. But those Acts

are not statutes waiving sovereign immunity, which are subject to much

more strict interpretation. [2] And application of Hines v . Hash , [3]

cited by the majority, to support transplantation of abatement into the Whilstleblower Act would vitiate part of that Act.

Unfortunately

for the majority = s proposed use of abatement, the Code Construction Act requires

a court construing a statute to presume that the entire statute is intended to

be effective. Tex. Gov = t Code Ann. ' 311.021(2) (Vernon 1998); Indus. Accident Bd. v. Martinez ,

836 S.W.2d 330, 333 (Tex. App. C Houston[14th Dist.] 1992, no writ). The application of abatement in accordance

with the rules prescribed in Hines renders the election in section

554.006(d) meaningless.

The

Hines court held that abatement was proper in DTPA suits where the

statutory notice had not been earlier given.

This abatement is proper only if the defendant makes a timely request

for such relief. 843 S.W.2d at 469. But a defendant who fails to make a timely

request for abatement waives his objection to the lack of notice. Id .

Consequently, where the defendant = s delay in requesting abatement results in waiver of lack of

notice, the plaintiff = s case proceeds during what should have been the notice

period. Id .

The

Hines abatement rule, however, can defeat the section 554.006(d)

election provision. Under that provision ,

grievance or appeal procedures must proceed for 60 days, following which

the employee may elect to either continue the grievance procedures, or file

suit. But the statute does not

contemplate a plaintiff pursuing grievance procedures and a lawsuit

simultaneously. Univ. of Houston Sys.

v. Lubertino , 95 S.W.3d 423, 427 (Tex. App. C Houston

[1st Dist.] 2002, no pet. h.). If the

rule in Hines is applied to the Whistleblower Act, permitting initiation

of grievance procedures and the filing of a suit before the 61st day

absent a timely request for abatement, the election provision in section

554.006(d) would be rendered meaningless.

Id . Indeed, if employees can pursue grievance procedures

and legal remedies simultaneously, the grievance procedures will be vitiated. [4]

IV. Obiter

Dicta Is Not Binding Precedent

The

majority = s

abatement concept here is dictum. The

majority states A [b] ecause six years have passed since

he filed suit, UTMB has had more than a fair opportunity to [settle Barrett = s

claim]; neither dismissal nor abatement is warranted . @ So abatement does not apply to this case,

just to all future cases. Thus, while

interesting, abatement is not necessary to the determination of UTMB = s

appeal here.

Dictum

is an observation or remark made concerning some rule, principle, or

application of law suggested in a particular case, which observation or remark

is not necessary to the determination of the case. Edwards v. Kaye , 9 S.W.3d 310, 314

(Tex. App. C Houston [14th Dist.] 1999, pet denied). Dictum is not binding as precedent under stare

decisis . Id . Statements and comments in an opinion

concerning some rule of law or legal proposition not necessarily involved nor

essential to determination of the case in hand

are obiter dicta, and lack the force of an adjudication. Black = s Law Dictionary 409 (5th ed. 1999).

First, the observations by the majority regarding abatement in

prematurely filed suits in Whistleblower Act cases are not necessary to the

determination of this case, and indeed are a mere recommendation (majority

opinion stating A noncompliance [with section 554.006(d)] should result in

abatement @ ). [5]

(emphasis added). A fortiori ,

those observations are dictum, and are not binding on this court.

Second,

those observations are not judicial dictum.

Judicial dictum is a statement by the supreme court made very

deliberately after mature consideration and for future guidance in the conduct

of litigation, and it is at least persuasive and should be followed unless

found to be erroneous. Id. Thus, because the majority = s

abatement observations are solely dictum and not judicial dictum, they have no precedential value.

V. Essenburg

and Elthon C What Do They Really Say?

A.

Essenburg

v. Dallas County

The

majority disagrees with my jurisdictional analysis of the Whistleblower Act and

asserts that the Act is merely a presentment statute, not an exhaustion of

administrative remedies statute. In

support, the majority cites Essenburg v.

Dallas County , 988 S.W.2d 188 (Tex. 1998).

In Essenburg , the supreme court held

section 81.041 of the Texas Local Government Code (the predecessor to section

89.004) contains a presentment requirement, not a jurisdictional exhaustion

requirement. Id . at 189. Thus, as a presentment, or notice, statute

section 89.004 is not jurisdictional. Id .

Importantly, however, the Essenburg

court observed A [t]he presentment requirement . . . is not analogous to the

exhaustion of administrative remedies requirement. @

Id . Indeed, the

presentment requirement in section 89.004 is not jurisdictional, but merely a

notice requirement . Travis

County v. Pelzel , 77 W.W3d 246, 249 (Tex.

2002). In contrast, the notice

requirement in the Whistleblower Act is jurisdictional. Tex. S. Univ. v. Carter , 84 S.W.3d

787, 792 (Tex. App. C Houston [1st Dist.] 2002, no pet.). This distinction vitiates any application of Essenburg here .

The unambiguous language of the Whistleblower Act

specifically provides that a public employee alleging a violation of the

statute may sue the employing state or local governmental entity for relief after

he has exhausted the applicable grievance procedures, or after the sixtieth day if a final

decision is not rendered by the governmental agency. Tex. Gov = t Code Ann . ' 554.006(d) (Vernon Supp. 2003)

(emphasis added). The Act states that

sovereign immunity is waived and abolished to the extent of liability for the

relief allowed for a violation of the Act.

Id . ' 554.0035.

In contrast, the statute examined in Essenburg

did not clearly and unambiguously waive immunity from suit for a claim against

a county. See Pelzel ,

77 S.W.3d at 249. A claimant under

section 89.004 has no statutory right to bring a suit for a money claim

against a county. Id . at

251. Thus, because questions of

jurisdiction are not relevant to an analysis of section 89.004, the inquiry is

restricted to presentment questions only.

In sum, Essenburg and Pelzel address a statute requiring presentment for

the purpose of notifying a government entity of a claim, not a statute

permitting suit against a government entity. [6] In contrast, sections 554.0035 and 554.006 of

the Government Code permit litigation. The majority = s attempted reclassification of the

Whistleblower Act = s prerequisites as non-jurisdictional presentment

requirements is frivolous because that Act waives sovereign immunity from suits

and liability, unlike the statute in Essenburg .

It should

be clear that statutes waiving immunity from suit and liability are

qualitatively different from statutes permitting the claimant to present a

claim only, and nothing more. Essenburg = s analysis of a

presentment statute has no application to a statute waiving sovereign immunity.

B. University of Houston v. Elthon

The

majority believes University of Houston v. Elthon

stands as this court = s refusal to convert the procedural requirements found in the

Act into conditions on the waiver of sovereign immunity. See 9 S.W.2d 351 (Tex. App. C Houston

[14th Dist.] 1999, pet. dism = d

w.o.j .). No

other court has ever cited Elthon for

that proposition. I will explain.

The

Elthon court first held that Dr. Elthon had initiated grievance procedures under the

employing state entity, thus complying with section 554.006(a) of the Act. Id . at 356. Next, the court considered appellant = s

claim Dr. Elthon had not timely initiated

action under the grievance procedures before initiating litigation. The reference to A timely @

logically must be a reference to the 90-day limitation period for initiating a

grievance in section 554.006(b).

In

addressing the second point of error, this court merely held that the

University had challenged the timeliness of the initiation of the grievance

procedures with the wrong pleading. The

University had presented the trial court with the issue of non-compliance with

the 90-day requirement in section 554.006(a)-(b) by a plea to the jurisdiction

based on limitations. But the Elthon court held that, because the defense of

limitations under the Act is often raised by a motion for summary judgment,

those limitations provisions cannot be the basis of a plea to the jurisdiction. [7] However, the Elthon

court reached this conclusion without addressing whether the 90-day requirement

in section 554.006(a)-(b) is, or is not, jurisdictional. In contrast, other Texas courts addressing

this question hold it is a limitations provision, but it is also

jurisdictional. See Tex. Bd. of

Pardons and Paroles. v. Feinblatt , 82 S.W.3d 513,

522 (Tex. App. C Austin 2002, pet. denied.).

Elthon provides no basis for a

decision here, and the majority = s reliance on it is misplaced.

VI.

The Majority = s View Is An Anomaly In Texas

Jurisprudence

The

question of the effect of the failure of an aggrieved employee of a state

entity to comply with the 60-day waiting period required by section 554.006(d)

of the Whistleblower Act has been

addressed by other intermediate courts of appeals in this state, and all who

have addressed this precise point have held the prerequisites of the Act to be

jurisdictional.

In

Lubertino , the court held that Lubertino = s election to exhaust her grievance procedures and file suit

before such exhaustion, thereby failing to comply with section 554.006(d),

deprived the trial court of jurisdiction. 95 S.W.3d at 428 .

In

City of San Antonio v. Marin , the court held that failure to comply with

section 554.006(d) deprives the trial court of subject matter jurisdiction. 19 S.W.3d 438, 442 (Tex. App. C San

Antonio 2000, no pet.) .

In

Fort Bend Indep . Sch .

Dist. v. Rivera , the majority affirmed a denial of a plea to the

jurisdiction where the plaintiff, bringing a Whistleblower claim, initiated a

grievance procedure and waited at least 60 days before filing suit, thus

satisfying the requirements under the Act for filing a suit. 93 S.W.3d 315, 322 (Tex. App. C Houston

[14th Dist.] 2002, no pet.). The

majority opinion did not address the question of whether the failure to wait 60

days before filing suit deprives the trial court of jurisdiction. Nevertheless, the concurring opinion treated

the majority opinion as if it had held that the 60-day waiting period was

jurisdictional, stating A treating this issue as jurisdictional defeats the Legislature = s

purpose. @ Id . at 323. (Brister, C.J., concurring)

In

Castleberry Indep . Sch .

Dist. v. Doe , the court, interpreting section 554.006(d), held the proper

procedure prior to filing a suit under the Whistleblower Act is to initiate the

grievance procedures, wait 60 days, and then suit may be filed but only

after allowing the employer this time.

35 S.W.3d 777, 781 (Tex. App. C Fort Worth 2001, pet. dism = d

w.o.j .).

That

these other appellate courts reach a conclusion different from the majority

does not make the majority wrong. It

does, however, bring into question whether the majority = s

suggestion regarding the availability of abatement in a Whistleblower suit is

firmly founded.

VII. CONCLUSION

I

cannot say that the majority = s suggestion of the use of abatement in prematurely filed

Whistleblower suits is ill-conceived.

The problem is, it is just wrong because it is not authorized by the

statute. This court should not inject A judicial

inspiration @ to achieve even a laudable result unavailable under a literal

reading of the Act. If abatement is

proper for premature suits under that Act, it is up to the Legislature, not

this court, to change the law. Moreover,

the statements by the majority regarding abatement in the context of this case

are non-binding dictum, and this court is free to continue following the well

reasoned decisions by the intermediate appellate courts which hold the 60-day

waiting period in section 554.006(d) of the Act is jurisdictional.

Accordingly,

I would reverse the trial court = s judgment and render judgment granting UTMB = s

plea to the jurisdiction. See Univ.

of Tex. Med. Branch v. Mullins , 57 S.W.3d 653, 657 (Tex. App. C Houston

[14th Dist.] 2001, no pet.).

/s/ John

S. Anderson

Justice

Rehearing En Banc Granted; Opinion of December 12,

2002 Withdrawn; Judgment rendered and En Banc Majority and Dissenting Opinions

on Rehearing filed July 31, 2003. (En Banc Majority Opinion delivered by Chief

Justice Brister and joined by Justices Hudson, Fowler, Edelman, Frost and

Guzman. En Banc Dissenting Opinion filed

by Justice Anderson and joined by

Justice Seymore. Justice Yates also filed an En Banc Dissenting

Opinion.)

[1] See

Act of June 25, 1983, 68th Leg., 1st C.S., ch . 7,

1983 Tex. Gen. Laws 37 (subsequently amended, repealed and codified, current

version at Tex. Lab. Code Ann. ' 21.001 B .306

(Vernon 1996 & Supp. 2003)).

[2] See part I,

Standard of Review, above.

[3] 843 S.W.2d 464

(Tex. 1992).

[4] The Hines

court held that, when a plaintiff files a DTPA suit, without the notice

required under section 17.505 of that statute, the defendant must request an

abatement with the filing of an answer or very soon thereafter . 843 S.W.2d at 469 . A defendant who fails to make a timely

request for abatement must be considered to have waived the objection to the

lack of notice. Id . Applying Hines here, an inadvertent

state or local government defendant who promptly files a response to a

premature suit, such as Barrett = s suit in this case, and proceeds with other responses

to the lawsuit without requesting abatement, is, under Hines , stuck with

the lawsuit and denied the benefits of the grievance or appeal procedures of

that entity. What the Legislature has

done, this court may not undo.

[5] Majority

Opinion, p. 7.

[6] Accord ,

Taub v. Harris County Flood Control Dist .,

76 S.W.3d 406, 411 (Tex. App. C Houston [1st Dist.] 2001, no pet.); Gendreau v. Med. Arts Hosp ., 54 S.W.3d 877,

879 (Tex. App. C Eastland 2001, pet. denied).

[7] But see Drilltec Tech., Inc. v. Remp , 64

S.W.3d 212, 214 (Tex. App. C Houston [14th Dist.] 2001, no pet.) (holding subject

matter jurisdiction can be attacked by plea to the jurisdiction, motion for

summary judgment, and special exception, among other means).