county sheriff fired county employees who, in good faith, reported sheriff’s questionable actions made in his official capacity
How later courts described this case
- county sheriff fired county employees who, in good faith, reported sheriff’s questionable actions made in his official capacity
- dealing with the whistleblower special venue provision and venue for suits involving political subdivisions
- jury could infer future mental anguish damages from past and present mental anguish when the terminated employee had not been reinstated; distinguishing case where the employee had been reinstated
- requiring plaintiff to show mental anguish beyond mere worry, disappointment or anger
Written by the judges who cited it.
The opinion
POWERS, Justice,
concurring.
I disagree only with the majority’s holding that the venue provision of the Whistleblower Act is not jurisdictional.
I believe there is no dispute that the Whis-tleblower Act creates a cause of action unknown to common law. The features of the cause of action are as follows: (1) various governmental entities are forbidden to suspend or terminate the employment of a public employee, or discriminate against him or her, when the employee “in good faith reports a violation of law to an appropriate law enforcement authority”; (2) should the governmental entity violate the prohibition, the employee “is entitled to sue for” various forms of relief specified in the Act, some of which are quite unknown at common law, provided he or she has first exhausted any grievance or appeal procedures available within the governmental entity; (3) provided further that the employee must bring the suit within ninety days from the date of the wrongful act or its discovery by the employee; and (4) venue for the suit is prescribed in the following terms:
*931 A public employee may sue under this chapter in a district court of the county in which the employee resides or in a district court of Travis County.
Tex. Gov’t Code Ann. § 554.007 (West 1994); see generally id. §§ 554.002- 006. I would hold that the venue specified in section 554.007 is jurisdictional within the doctrine laid down in Mingus v. Wadley, 115 Tex. 551 , 285 S.W. 1084 (1926).
The most recent supreme court decision discussing the Mingus doctrine is apparently Grounds v. Tolar, 707 S.W.2d 889 (Tex.1986). In that opinion, the court held jurisdictional the venue specified by the legislature in suits brought under the Term Contract Non-Renewal Act, Tex.Educ.Code Ann. §§ 21.203-.207 (West Supp.1986). The Act applies to public school teachers in instances where their employer, a local school board, declines to renew the teacher’s term contract of employment. The Act provides that the teacher is entitled in such instances to notice and a hearing regarding the board’s decision, a right of administrative appeal to the Commissioner of Education, a decision by that officer regarding the lawfulness of the board’s decision, and a right of judicial review by suit brought in a district court of Travis County. The last-named provision declares that “[ejither party may appeal [sic] the Commissioner’s decision to a district court in Travis County.” Tex.Educ.Code Ann. § 21.207(b); see generally id. §§ 21.203-.207. Another provision, § 11.13, of the Texas Education Code prescribes venue in a Travis county district court for suits against the Commissioner generally; and the former Texas Administrative Procedure and Texas Register Act, placed venue in a Travis County district court in suits for judicial review of the final orders rendered by certain Texas administrative agencies in “contested cases” governed by that act. Tex. Educ.Code Ann. § 11.13 (West 1991); Act of April 22, 1975, 64th Leg., R.S., ch. 61, § 19, 1975 Tex.Gen.Laws 136, 146, repealed by, Acts of 1993, 73d Leg., R.S., ch. 268, § 46(1), 1993 Tex.Gen.Laws 986.
Grounds held jurisdictional the Travis County venue specified in section 21.207(b) of the Texas Education Code. Citing Mingus , the court in Grounds declared as follows:
When a cause of action is derived from a statute, the statutory provisions are mandatory and exclusive and must be complied with in all respects or the action is not maintainable, for lack of jurisdiction.
Grounds, 707 S.W.2d at 891 (emphasis added). Concerning the permissive “may” contained in the venue provision (“Either party may appeal the Commissioner’s decision to a district court in Travis County”), the court declared it meant that the decision to seek judicial review was optional “but the place of trial is jurisdictional.” Grounds, 707 S.W.2d at 892 . As authority for this proposition, the court looked to the following passages in Mingus :
Having in mind the general rule that workmen’s compensation acts are to be liberally construed to effectuate their beneficial purpose, there can be no doubt that, when the legislature specified the county in which a suit to vacate an award should be filed, ... the specification was exclusive and intended to be jurisdictional.
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Besides, in special proceedings not within the common-law jurisdiction, the court’s statutory designation of the venue is mandatory and jurisdictional.
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[Wlhere a statute creates a right and provides a remedy for its enforcement, the remedy is exclusive, and where it confers jurisdiction upon a particular court, that jurisdiction is exclusive.
Mingus, 285 S.W. at 1087-88 (emphasis added).
In my view, the Mingus doctrine applies to the Whistleblower Act, which creates a right and cause of action that did not exist at common law, prescribes remedies for their enforcement, and specifies the venue for such actions.
Brown v. Owens, 674 S.W.2d 748 (Tex.1984) is inapposite. The causes of action *932 brought by the plaintiffs in that suit were, indeed, “statutory5’ causes of action. They were, specifically, the wrongful-death and survival causes of action — the “death actions” — authorized by statute for the benefit of a decedent’s surviving spouse, children, and parents in the one instance and the decedent’s heirs, legal representative, and estate in the other. See Brown, 674 S.W.2d at 749 . The statutes authorizing such actions contain no specific venue provision. See Act of June 19, 1975, 64th Leg., R.S., ch. 530, 1975 Tex.Gen.Laws 1381 (current version at Tex.Civ.Prac. & Rem.Code Ann. §§ 71.001-.011, 71.031 (West 1986)). These were not, therefore, the statutes construed in Brown and discussed in the court’s opinion.
Instead, the subject of the supreme court’s opinion in Brown was a different kind of statute entirely — a statute that did not create a cause of action and remedy while also prescribing a venue for such cause of action. The statute discussed in Brown was, instead, the Texas Tort Claims Act. Act of May 22, 1969, 61st Leg., R.S., ch. 292, 1969 Tex.Gen. Laws 874 (amended 1973, 1983) (current version at Tex.Civ.Prac. & Rem.Code Ann. §§ 101.001-.109 (West 1986)).
The Texas Tort Claims Act removed the bar of sovereign immunity from almost all causes of action under certain conditions and limitations, when these actions were brought against the State of Texas. In other words, the Texas Tort Claims Act did not create any cause of action; it simply removed the bar against existing causes of action. The causes of action affected by the Tort Claims Act exist outside and independently of that act. There is little wonder then that the Brown opinion omits to mention Mingus or any of the other decisions applying the Mingus doctrine.