The opinion
NUMBER 13-10-00561-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SOUTH TEXAS COLLEGE, Appellant,
v.
CURTIS ROBERSON, Appellee.
On appeal from the 139th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Benavides
This appeal involves the trial court’s denial of a plea to the jurisdiction alleging
lack of subject-matter jurisdiction over appellee Curtis Roberson’s lawsuit against
appellant South Texas College (―STC‖) for breach of contract, wrongful termination, and
breach of fiduciary duty. We reverse and render in part and reverse and remand in
part.
I. BACKGROUND1
Beginning in August 2005, Roberson took a full-time instructor position at STC
teaching emergency medical services. STC is a junior-college district and a political
subdivision of the State of Texas. See TEX. EDUC. CODE ANN. § 130.199 (West 2002);
TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(B) (West 2011). In each year of his
employment, Roberson received an appointment letter drafted by STC which detailed his
salary, duration of employment, and obligations that he was bound to fulfill as a faculty
member, such as maintenance of his teaching schedule and office hours, attendance at
personal development meetings, and participation in committee assignments. In June
2008, as in years past, STC and Roberson executed an appointment letter for the Fall
2008 and Spring 2009 semesters.
Roberson alleged that in September 2008, he was called upon by his other
employer, the Matagorda County Emergency Medical Service (EMS), to assist with
disaster-relief efforts following Hurricanes Gustov and Ike. It is undisputed that STC
was aware of Roberson’s other employment with Matagorda EMS, as he had performed
similar duties in the past. Roberson stated that he notified STC Program Chair, Jesus
Corpus, of his duty with the Matagorda County EMS, and Corpus informed Roberson
that his classes would be covered until his return. Roberson missed a total of six
teaching days for his time with the relief efforts. He was eventually terminated on
December 17, 2008, made retroactive to November 2008, for violating STC’s policies.
Roberson received a grievance hearing prior to his termination in December 2008 and, in
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We note that appellee, Curtis Roberson, did not file a response brief in this appeal.
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February 2009, filed the present lawsuit against STC and the dean of his department,
Melba Treviño.
In his petition, Roberson filed causes of action for: (1) breach of contract; (2)
breach of fiduciary duty; and (3) wrongful termination.2 STC answered by general
denial and filed a plea to the jurisdiction on grounds that it was immune from suit on
Roberson’s alleged causes of action because it is a governmental entity. The trial court
denied the plea to the jurisdiction, and STC filed this interlocutory appeal.3 See TEX.
CIV. PRAC & REM. CODE ANN. § 51.014(a)(8) (West 2008).
II. PLEA TO THE JURISDICTION AND GOVERNMENTAL IMMUNITY STANDARDS
―A plea to the jurisdiction is a dilatory plea by which a party contests the trial
court's authority to determine the subject matter of a cause of action.‖ Tex. Dep’t. of
Transp. v. Arzate, 159 S.W.3d 188, 190 (Tex. App.—El Paso 2004, no pet.). A plaintiff
must allege facts that demonstrate subject-matter jurisdiction in order to give the trial
court power to decide a case. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 443–46 (Tex. 1993).
In Texas, ―[g]overnmental immunity protects political subdivisions of the State
from lawsuits for damages.‖ Harris County Hosp. Dist. v. Tomball Reg’l Hosp., 283
S.W.3d 838, 842 (Tex. 2009). When reviewing a lawsuit against a political subdivision,
two issues are involved: (1) ―whether the State has consented to suit‖; and (2) ―whether
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Roberson’s other causes of action for negligence, intentional infliction of emotional distress,
negligent supervision, and assisting in the result of intentional infliction of emotional distress were filed
against dismissed co-defendant Treviño and are unrelated to this appeal.
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The trial court initially denied STC’s plea to the jurisdiction on April 3, 2010, followed by STC’s
notice of appeal on May 13, 2010. STC later realized in preparation of its appeal, however, that not all
issues were presented in the initial plea. Thus, STC successfully petitioned this Court to dismiss the
previous appeal for lack of jurisdiction and later presented a corrected plea to the jurisdiction to the trial
court on August 20, 2010, which again was denied on September 20, 2010. STC then filed the present
notice of interlocutory appeal on October 5, 2010.
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the State has accepted liability.‖ Id. Therefore, when a party sues a governmental
entity, the party must establish the State’s consent to suit or consent to liability either by
reference to statute or through express legislative intent. See Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 224–25; Tex. Dep’t of Transp. v. Jones, 8 S.W.3d
636, 638 (Tex. 1999) (per curiam). An absence of the State’s consent equals a lack of
subject-matter jurisdiction. See Jones, 8 S.W.3d at 638.
We review a contest to subject-matter jurisdiction de novo. See Arzate, 159
S.W.3d at 190. In our review, we examine Roberson’s allegations and determine
whether his pleadings state a claim for which immunity has been waived. See Jones, 8
S.W.3d at 639. Further, ―if the pleadings affirmatively negate the existence of
jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an
opportunity to amend.‖ See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.
2002).
III. ANALYSIS
A. Breach of Contract
STC contends in its first issue that Roberson’s breach of contract claim is invalid
and thus does not trigger a waiver of immunity for the trial court to maintain
subject-matter jurisdiction.
The Texas Legislature enacted a limited waiver of immunity to suit for breach of
contract claims against certain local governmental entities, such as STC. See TEX.
LOC. GOV’T CODE ANN. §§ 271.151(3)(B), 271.152 (West 2005). The statute defines a
―contract,‖ for purposes of waiver, as a properly executed agreement with necessary
terms for providing goods or services to the local governmental entity. See id. at §
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271.151(2). Accordingly, the relevant inquiry is to determine whether a valid and
enforceable employment contract existed between Roberson and STC to trigger the
waiver. See Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 839
(Tex. 2010); Wight Realty Interests, Ltd. v. City of Friendswood, 333 S.W.3d 792, 796
(Tex. App.—Houston [1st Dist.] 2010, no pet.).
STC argues that Roberson is wrong to interpret his annual appointment letter as
an employment contract between him and STC, and thus the waiver is not triggered
under the local government code. We agree. Texas law supports the presumption
that employment is at-will and that an employee may be terminated for ―good cause, bad
cause, or no cause at all.‖ Midland Judicial Dist. Cmty. Supervision & Corrs. Dept. v.
Jones, 92 S.W.3d 486, 487 (Tex. 2002) (per curiam) (citing Montgomery County Hosp.
Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998)). In order to overcome the
presumption of at-will employment by contract, an employer must ―unequivocally indicate
a definite intent . . . to be bound not to terminate the employee except under clearly
specified circumstances.‖ Midland, 92 S.W.3d at 487. The appointment letter at issue
in this case fails under the Midland standard because there is no showing of a definite
intent on the part of STC to be bound not to terminate Roberson except under clearly
specified circumstances. See id. Instead, the letter provides general conditions of
Roberson’s employment as a full-time instructor, and it also offers a general admonition
that ―failure to comply with the above-mentioned terms may result in sanction, up to and
including your dismissal of employment from [STC]‖ (emphasis added). The letter’s
open-ended language does not support a showing of ―definite intent‖ on the part of STC
to form a contract with Roberson that would alter his at-will employment status. We
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conclude that STC and Roberson did not execute an employment contract. See id.
Without a valid contract, Roberson cannot maintain a valid a breach of contract action
against STC. Accordingly, we sustain STC’s first issue.
B. Wrongful Termination
In its second issue, STC asserts that immunity is not waived for Roberson’s
wrongful termination claim because no generic cause of action for wrongful termination
exists in Texas.
Roberson alleged in his petition that STC wrongfully terminated his employment in
retaliation for previous complaints he lodged about his dean and former co-defendant
Treviño. Without deciding whether a generic cause of action for wrongful termination
based on retaliation exists in Texas, we turn to the broader threshold question of whether
the State consented to suit for Roberson’s specific cause of action of wrongful
termination based on retaliation. See Harris County Hosp. Dist., 283 S.W.3d at 842.
―Because . . . governmental immunity generally protects the government from liability for
the performance of governmental functions, such as the hiring and firing of its
employees,‖ the viability of Roberson’s claim depends on ―finding a waiver of the
government's immunity for this particular claim.‖ Travis Cent. Appraisal Dist. v.
Norman, 342 S.W.3d 54, 56 (Tex. 2011).
Claims for wrongful termination based on retaliation where the governmental
entity consents to suit may include such claims as those for whistleblowers of illegal
activities, see TEX. GOV’T CODE ANN. § 554.002 (West 2004); for county employees who
utilize a statutory grievance process, see TEX. LOC. GOV’T CODE ANN. § 160.006 (West
2008); and for those who oppose or assist in investigating discriminatory practices in the
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workplace. See TEX. LAB. CODE ANN. § 21.055 (West 2006). But, we find no authority
to support a waiver of immunity for Roberson’s present and vaguely-worded claim of
wrongful termination.
Roberson’s petition alleges that STC wrongfully terminated him in retaliation for
―filing complaints‖ regarding his employment and the manner in which Treviño ran his
department. When reviewing pleas to the jurisdiction, we review the pleadings and
evidence relevant to the jurisdictional issue, and we construe the pleadings liberally in
the plaintiff’s favor. See Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.
2002) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.
1993)). A plaintiff has a right to amend his pleadings and attempt to cure pleading
defects if insufficient jurisdictional facts exist, unless it is impossible to amend the
pleadings to invoke jurisdiction. See Ramirez, 74 S.W.3d at 867; Brown, 80 S.W.3d at
555. Roberson’s current pleading does not specify the nature or basis of his complaints
nor the details of the subsequent alleged retaliation. As Roberson’s current pleading
stands, the trial court should have granted STC’s plea to the jurisdiction without
prejudice, and it should have allowed Roberson an opportunity to amend his pleading to
make a proper determination whether waiver of immunity exists for purposes of
subject-matter jurisdiction. See Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d
802, 805 (Tex. 1989). Accordingly, STC’s second issue is sustained, and we reverse
the trial court’s denial of STC’s plea, but remand the case to the trial court to give
Roberson the opportunity to amend his pleading and attempt to cure the pleading
defects. See Ramirez, 74 S.W.3d at 867
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C. Breach of Fiduciary Duty
In its final issue, STC contends Roberson’s breach of fiduciary duty cause of
action is not viable in this case. Again, we turn our analysis on whether Roberson
established the State’s consent to his cause of action for breach of fiduciary duty. Id.
Roberson’s petition alleges that by virtue of his employment contract with STC, he was
owed certain duties of good faith that were breached by the college. PART III-A of our
opinion concludes that Roberson did not have an employment contract with STC under
Midland. See 92 S.W.3d at 487. Accordingly, because Roberson’s breach of fiduciary
duty allegations are based on the premise that an employment contract existed between
the parties, and we concluded that no contract existed, STC’s third issue is sustained.
IV. CONCLUSION
As STC maintained its governmental immunity in this case on Roberson’s breach
of contract and breach of fiduciary claims, we reverse the trial court’s denial of STC’s
plea to the jurisdiction and render that the plea be granted as to those claims. We
reverse and remand Roberson’s claim for wrongful termination to the trial court, so that it
may give Roberson the opportunity to amend his defective pleading and allege sufficient
facts to allow for a proper jurisdictional determination.
________________________
GINA M. BENAVIDES,
Justice
Delivered and filed the
16th day of February, 2012.
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