Sovereign Immunity Procedure

The Third Court of Appeals has released an opinion on an interlocutory appeal which clearly sets forth the rule that in enacting the Whistleblower Act the Texas Legislature waived immunity from both suit and liability, and that a governmental entity is not entitled as a matter of right to an evidentiary hearing on a plea to the jurisdiction on sovereign immunity grounds.

First, some quick background. The Texas Supreme Court has held that sovereign immunity is so strong a defense for a governmental entity that it is jurisdictional. In other words, when a Texas governmental entity is sued, that entity may file a plea to the jurisdiction immediately if a legislative waiver of immunity that would apply to the plaintiff’s case is not evident from the plaintiff’s petition. In the event a trial court denies the immunity-based plea to the jurisdiction, the governmental may make an immediate interlocutory appeal.

The Texas Whistleblower Act, however, is such a waiver of immunity, both from suit and from liability (sovereign immunity in Texas has two components: immunity from suit, and immunity from liability, and they mean more or less what they sound like they mean). Section 554.035 of the Whistleblower Act states:

A public employee who alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this chapter. Sovereign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter.

Tex. Gov’t Code §554.0035. In other words, according to the statute (and the Court), all a plaintiff needs to allege in his or her petition is that he or she is a public employee and that the Whistleblower Act has been violated.

In this case, the plaintiff did just that. So, since the plaintiff’s petition set forth a clear waiver of sovereign immunity, the trial court had jurisdiction over the claim and the governmental defendant. Accordingly, the trial court denied TXDOT’s plea to the jurisdiction

TXDOT, however, was not satisfied. It claimed that a 2004 Texas Supreme Court case entitled them to an evidentiary hearing on its plea, and that at the hearing it would have established that the plaintiff’s whistleblower claim was without merit. The Court points out that the case on which TXDOT relies does not give governmental defendants an absolute right to an evidentiary hearing, but instead merely holds that in some circumstances an evidentiary hearing is appropriate to flesh out jurisdictional facts.

That last bit is the rub. Here, TXDOT claimed that the hearing would have shown that the plaintiff did not make a good faith report of a violation of law to an appropriate authority. Those facts, even if proven, would have not disturbed the trial court’s jurisdiction over the case. They may have established a defense to the case as a matter of law, if this had been a summary judgment, but they do not negate jurisdiction. A jurisdictional fact would have been, say, an employment record demonstrating that the plaintiff had never been a public employee. The facts TXDOT wanted to offer, however, went to the merits of the claim, but did not have a bearing on the jurisdictional issue, which is only “did plaintiff allege facts which demonstrated a waiver of immunity.”

All told, it’s quite a useful opinion, since it demonstrates the important procedural difference between pleas to the jurisdiction and motions for summary judgment, both of which can and are used by Texas governmental defendants to assert sovereign immunity defenses.

Texas Department of Transportation v. Lueck, Cause No. 03-05-00510-CV

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