AFFIRMED in part; REVERSE and RENDER in part; REMAND and 

Opinion Filed March 10, 2021 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-20-00351-CV 

TARRANT COUNTY COLLEGE DISTRICT, Appellant 

V. 

AMANDA SIMS, Appellee 

On Appeal from the 116th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-19-18217 

OPINION 

Before Justices Schenck, Smith, and Garcia 

Opinion by Justice Smith 

Appellee Amanda Sims sued her employer, appellant Tarrant County College 

District (TCCD), claiming that she was discriminated against due to her sexual 

orientation and pled facts alleging a violation of the Texas Whistleblower Act and 

the Texas Constitution. TCCD filed a plea to the jurisdiction and moved to dismiss 

Sims’ claims on the basis of sovereign immunity. The trial court denied TCCD’s 

plea to the jurisdiction, and TCCD appeals. In two issues, TCCD argues the trial 

court erred in denying its plea to the jurisdiction. 

We conclude the following: 
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 Sims’ claim of discrimination based on sexual orientation may be 

brought under the Texas Commission on Human Rights Act 

(TCHRA). 

 Sims’ remedy under the TCHRA forecloses any action under the 

Texas Whistleblower Act. 

 Sims’ constitutional claims established the existence of a genuine 

issue of material fact to overcome TCCD’s challenge to the trial 

court’s subject matter jurisdiction. 

We affirm the trial court’s denial of TCCD’s plea to the jurisdiction regarding 

Sims’ constitutional claims. Regarding Sims’ claims under the Whistleblower Act, 

we reverse the trial court’s order denying TCCD’s plea to the jurisdiction, render 

judgment dismissing her Whistleblower Act claims, and remand for further 

proceedings consistent with this opinion. 

In November 2019, Sims filed her original petition in Dallas County district 

court against TCCD alleging her employment was terminated only after she revealed 

to her supervisor that she is a lesbian. Sims claimed she was subjected to 

discrimination because of her sexual orientation and asserted TCCD’s termination 

of her employment constituted a violation of the Whistleblower Act and Texas 

Constitution. 

Specifically, Sims alleged the following facts: (1) she was a TCCD employee 

for three years and received performance evaluations reflecting above-average 

performance throughout her employment and had also received the Chancellor’s 

Excellence Award for her work achievements; (2) Sims revealed she is a lesbian to 

her supervisor and co-workers when she served as a member of a TCCD committee 
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addressing diversity issues; (3) thereafter, Sims began experiencing hostile 

treatment: her supervisor, who “expressed religious views that held homosexuals in 

a negative light,” told Sims she had to “overlook [her] bias” when it came to Sims; 

(4) one of Sims’ responsibilities was to oversee a student-run convention on a TCCD 

campus; (5) as part of the convention, TCCD had previously allowed Sims to collect 

vendor fees for events via her PayPal account; (6) Sims did not spend the funds for 

her personal use and fully disclosed her activities to TCCD; and (7) in 2018, TCCD 

audited Sims’ activities and determined Sims did not engage in any improper 

activities. 

Sims’ petition alleged TCCD began to subject her to discrimination because 

of her sexual orientation. Around March 26, 2019, Sims reported to the Fort Worth 

Human Relations Commission that TCCD violated the City of Fort Worth ordinance 

prohibiting discrimination based upon sexual orientation. On April 4, 2019, TCCD 

placed Sims on administrative leave, and Sims’ employment was terminated on July 

1, 2019, for what Sims claimed were “pretextual reasons.” 

In January 2020, TCCD filed its plea to the jurisdiction and motion to dismiss 

Sims’ claims. TCCD argued it was entitled to dismissal of Sims’ claims because the 

TCHRA provided the exclusive remedy for a public employee’s discrimination and 

anti-retaliation claims. Further, TCCD argued it had not waived immunity from suit 

under the Whistleblower Act for a discrimination-based retaliation claim; therefore, 

dismissal was proper. TCCD argued the court lacked jurisdiction to hear Sims’ 
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whistleblower and constitutional claims because “the TCHRA is [Sims’] exclusive 

statutory remedy for addressing a discriminatory based retaliation claim in state 

court.” 

In February 2020, Sims filed a response to TCCD’s plea to the jurisdiction 

stating that, because she reported that TCCD discriminated against her based on her 

sexual orientation, her claim was not preempted by the TCHRA because the TCHRA 

did not prohibit sexual orientation discrimination. As to her constitutional claims, 

Sims argued the Texas Constitution preempts all state laws, and her constitutional 

claims could therefore not be preempted by the TCHRA. 

At a hearing on TCCD’s plea to the jurisdiction, the trial judge characterized 

this case as “a situation where there is no remedy [under the TCHRA] for the 

underlying conduct of being discriminated against based on sexual orientation.” 

TCCD argued the fact that the TCHRA did not mention sexual orientation did not 

“mean that the legislature intended for employment discrimination claims premised 

on other characteristics to be controlled by a statutory scheme other than the 

TCHRA.” TCCD argued Sims’ claim of “being discriminated against on the basis 

of her sex and gender stereotyping” was “covered under the TCHRA,” but no Texas 

court had ruled on the issue of whether the TCHRA protected her “status of sexual 

orientation.” Sims’ counsel argued that Sims’ claim was “about being retaliated 

against for complaining about sexual orientation discrimination.” Sims’ counsel 
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further argued that the “Texas Constitution does protect individuals from 

discrimination based on sexual orientation.” 

On February 21, 2020, the trial court signed an order denying TCCD’s plea to 

the jurisdiction. The order outlined the arguments made in the parties’ pleadings 

and contained the following paragraph: 

The parties agree that [T]CHRA does not include a prohibition against 

sexual orientation discrimination or retaliation for reporting sexual 

orientation discrimination. They further agree that the statute does

provide a remedy for sex discrimination based on a failure to conform 

to gender stereotypes. It is also undisputed between the parties that 

Plaintiff’s lawsuit alleges the former conduct, not the latter. Plaintiff’s 

lawsuit expounds upon and alleges facts in support of her claims that 

are unrelated to assertions of sex discrimination/gender stereotyping 

(facts a jury could determine motivated the alleged adverse 

employment actions), including purported expressions by her 

supervisor of negative attitudes about gay people and bias against 

Plaintiff because of her sexual orientation. No authority was offered to 

the Court that the type of harm claimed by Plaintiff in this suit is the 

type of harm [T]CHRA was enacted to redress or the type of harm

Texas courts have held is made unlawful by the statute. 

This appeal followed. 

In two issues, TCCD argues the trial court erred in denying its plea to the 

jurisdiction on Sims’ whistleblower and constitutional claims. We review the trial 

court’s ruling on a plea to the jurisdiction de novo. Tex. Dep’t of Parks & Wildlife 

v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); City of Plano v. Hatch, 584 S.W.3d 

891, 895 (Tex. App.—Dallas 2019, no pet.). In performing this review, an appellate 

court does not look to the merits of the case but considers only the pleadings and 

evidence relevant to the jurisdictional inquiry. City of Seagoville v. Lytle, 227 
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S.W.3d 401, 408 (Tex. App.—Dallas 2007, no pet.). A plea to the jurisdiction is a 

dilatory plea that contests the trial court’s authority to determine the subject matter 

of the cause of action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 

2000). When a plea to the jurisdiction challenges the pleadings, we must determine 

if the pleader has alleged sufficient facts to demonstrate affirmatively the trial court’s 

jurisdiction to hear the cause. See Ryder Integrated Logistics, Inc. v. Fayette Cty., 

453 S.W.3d 922, 927 (Tex. 2015); Hatch, 584 S.W.3d at 895. To make this 

determination we look to the pleader’s intent, construe the pleadings liberally in 

favor of jurisdiction, and accept the allegations in the pleadings as true. Hatch, 584 

S.W.3d at 895. Where the pleadings do not allege sufficient facts to demonstrate 

affirmatively the trial court’s jurisdiction but do not affirmatively demonstrate an 

incurable jurisdictional defect, the issue is one of pleading sufficiency, and the 

plaintiffs should be given an opportunity to amend. Miranda, 133 S.W.3d at 226–

27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to 

the jurisdiction may be granted without allowing the plaintiffs an opportunity to 

amend. Id. at 227. 

 In Texas, governmental immunity has two components: immunity from 

liability, which bars enforcement of a judgment against a governmental entity, and 

immunity from suit, which bars suit against the entity altogether. Tooke v. City of 

Mexia, 197 S.W.3d 325, 332 (Tex. 2006). TCCD does not dispute that immunity is 
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waived for suits brought under the TCHRA; instead, TCCD argues “the TCHRA 

provides the exclusive remedy for a public employee’s discrimination claim.” 

One of the general purposes of the TCHRA is to: “(1) provide for the 

execution of the policies of Title VII of the Civil Rights Act of 1964 and its 

subsequent amendments (42 U.S.C. Section 2000e et seq.).” TEX. LAB. CODE § 

21.001(1). The TCHRA was “enacted to address the specific evil of discrimination 

and retaliation in the workplace,” as well as to coordinate and conform with federal 

anti-discrimination and retaliation laws under Title VII. Prairie View A & M Univ. 

v. Chatha, 381 S.W.3d 500, 504 (Tex. 2012) (quoting City of Waco v. Lopez, 259 

S.W.3d 147, 153–55 (Tex. 2008)). Although the Texas Supreme Court considers 

the TCHRA’s plain language and its own precedent in interpreting the TCHRA, the 

court does look to federal law for guidance in situations where the TCHRA and Title 

VII contain analogous statutory language. Chatha, 381 S.W.3d at 505. 

The relevant section of the TCHRA provides the following: 

An employer commits an unlawful employment practice if because of 

race, color, disability, religion, sex, national origin, or age the 

employer: 

(1) fails or refuses to hire an individual, discharges an individual, or 

discriminates in any other manner against an individual in connection 

with compensation or the terms, conditions, or privileges of 

employment; 

TEX. LAB. CODE § 21.051. Similarly, Title VII provides the following: 

(a) Employer practices 

It shall be an unlawful employment practice for an employer-- 
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(1) to fail or refuse to hire or to discharge any individual, or otherwise 

to discriminate against any individual with respect to his compensation, 

terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin; or

42 U.S.C. § 2000e-2. Thus, both the TCHRA and Title VII prohibit discrimination 

“because of . . . sex.” 

The parties agree that no Texas state court has addressed the issue of whether 

discrimination based on sexual orientation is prohibited under the TCHRA. 

Therefore, we look to federal law for guidance. Chatha, 381 S.W.3d at 505. At the 

time of the hearing on TCCD’s plea to the jurisdiction, applicable federal authority 

held that, “[f]or four decades, it has been the uniform law of the land, affirmed in 

eleven circuits, that Title VII of the 1964 Civil Rights Act prohibits sex 

discrimination—not sexual orientation or transgender discrimination.” Wittmer v. 

Phillips 66 Co., 915 F.3d 328, 333 (5th Cir. 2019) (Ho, J., concurring). Clearly, the 

trial court was aware of this authority when it stated in its order that the parties 

agreed the TCHRA “does not include a prohibition against sexual orientation 

discrimination or retaliation for reporting sexual orientation discrimination.” 

 The trial court in this case entered its order in February 2020. Four months 

later, the United States Supreme Court, in June 2020, issued its opinion in Bostock 

v. Clayton County, Georgia, 140 S. Ct. 1731, 1754 (2020). In Bostock, the court 

held that Title VII’s prohibition on discrimination “because of . . . sex” prohibits an 

employer from failing or refusing to hire or from firing an individual for being 
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homosexual or being a transgender person. Id. at 1738–43. In reaching this decision, 

the court reasoned as follows: 

Those who adopted the Civil Rights Act might not have anticipated 

their work would lead to this particular result. Likely, they weren’t 

thinking about many of the Act’s consequences that have become 

apparent over the years, including its prohibition against discrimination 

on the basis of motherhood or its ban on the sexual harassment of male 

employees. But the limits of the drafters’ imagination supply no reason 

to ignore the law’s demands. When the express terms of a statute give 

us one answer and extratextual considerations suggest another, it’s no 

contest. Only the written word is the law, and all persons are entitled 

to its benefit. 

Id. at 1737. As the court concluded, “[a]n employer who fires an individual merely 

for being gay or transgender defies the law.” Id. at 1754. 

 In order to reconcile and conform the TCHRA with federal antidiscrimination and retaliation laws under Title VII, we conclude we must follow 

Bostock and read the TCHRA’s prohibition on discrimination “because of . . . sex” 

as prohibiting discrimination based on an individual’s status as a homosexual or 

transgender person. See Bostock, 140 S. Ct. at 1738–43; Chatha, 381 S.W.3d at 

504–05. In light of Bostock, Sims’ claims are now properly brought under the 

TCHRA. See Bostock, 140 S. Ct. at 1738–43; Chatha, 381 S.W.3d at 504–05. Sims’ 

remedy under the TCHRA forecloses relief under the more general Whistleblower 

Act. See City of Waco, 259 S.W.3d at 154. Thus, to the extent TCCD argues Sims 

was not entitled to relief under the Whistleblower Act, we sustain TCCD’s first issue 

in part. 
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 However, where the pleadings do not allege sufficient facts to demonstrate 

affirmatively the trial court’s jurisdiction but do not affirmatively demonstrate an 

incurable jurisdictional defect, the issue is one of pleading sufficiency, and the 

plaintiffs should be given an opportunity to amend. Miranda, 133 S.W.3d at 226–

27. TCCD does not dispute that Sims’ claims come under the TCHRA. Here, Sims 

alleged she was discharged because of her sexual orientation, but she incorrectly 

characterized her claim as a claim under the Whistleblower Act. After Bostock, it is 

clear that Sims’ claim must be brought under the TCHRA. We therefore remand in 

order to give Sims an opportunity to amend her pleadings. See Miranda, 133 S.W.3d 

at 226–27. To the extent TCCD argues in its first issue that Sims’ claims should be 

dismissed, we overrule TCCD’s first issue in part. 

As to Sims’ constitutional claims, TCCD argues Sims has failed to sufficiently 

plead a constitutional claim against TCCD. Specifically, TCCD argues Sims has 

failed to allege any protected property interest upon which her due process claim can 

be based, she has failed to allege that she was treated differently than similarly 

situated TCCD employees investigated and found guilty of violating TCCD policy, 

and her allegation that she was terminated for pretextual reasons is “simply not 

enough to invoke TCCD’s waiver of immunity.” TCCD did not raise these 

arguments in its plea to the jurisdiction or its supplement to the plea to the 

jurisdiction, and it did not make these arguments at the hearing on its plea to the 

jurisdiction. 
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TCCD acknowledges the Texas Constitution authorizes suits against political 

subdivisions for equitable or injunctive relief for violations of the Texas Bill of 

Rights. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 148–49 (Tex. 1995) 

(citing TEX. CONST. art. I, § 29); City of Houston v. Downstream Envtl., L.L.C., 444 

S.W.3d 24, 38 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). The guarantees 

found in the Bill of Rights are excepted from the general powers of government; the 

State has no power to commit acts contrary to the guarantees found in the Bill of 

Rights. TEX. CONST. art. I, § 29; Bouillion, 896 S.W.2d at 148. To avoid dismissal 

on a plea to the jurisdiction, a plaintiff must establish the existence of a genuine issue 

of material fact to overcome the challenge to the trial court’s subject matter 

jurisdiction. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770–71 

(Tex. 2018). 

Here, as already discussed, Sims’ pleadings alleged she was retaliated against 

and discriminated against based on her sexual orientation in violation of the Texas 

Constitution. Sims sought monetary relief in her claim for damages. There is no 

implied right of action to recover money damages for violation of the due-courseof-law provision in the Texas Bill of Rights. Downstream Envtl., 444 S.W.3d at 40. 

However, as to her constitutional claims, Sims requested a “declaration that [TCCD] 

violated [Sims’] right under the Texas Constitution and City of Fort Worth ordinance 

to be free from discrimination on the basis of her sexual orientation” and “an 

injunction against [TCCD] to prohibit discrimination against [Sims] and other 
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homosexual employees because of their sexual orientation.” Thus, Sims’ 

constitutional claims did not seek monetary damages; instead, Sims’ constitutional 

claims sought the kind of equitable and injunctive relief authorized under the Texas 

Constitution for violations of the Texas Bill of Rights. See Bouillion, 896 S.W.2d 

at 148–49. 

TCCD did not conclusively negate the validity of Sims’ constitutional claims. 

See Downstream, 444 S.W.3d at 38–39. Under the facts and circumstances of this 

case, we conclude Sims’ constitutional claims established the existence of a genuine 

issue of material fact to overcome TCCD’s challenge to the trial court’s subject 

matter jurisdiction. Clark, 544 S.W.3d at 770–71. We therefore affirm the trial 

court’s denial of TCCD’s plea to the jurisdiction regarding Sims’ constitutional 

claims. 

Finally, we reject TCCD’s argument that Sims has engaged in impermissible 

“venue shopping” in bringing her claim in Dallas County. 1 We note that venue and 

jurisdiction are two separate questions. See, e.g., State v. Pounds, 525 S.W.2d 547, 

550 (Tex. App.—Amarillo 1975, writ ref’d n.r.e.). “Jurisdiction is the power of the 

court to decide a controversy between parties and to render and enforce a judgment 

 1

 Although Sims’ petition alleged she resides in Tarrant County and TCCD’s address for service of 

process is in Fort Worth, Sims filed suit in Dallas County pursuant to section 554.007(b) of the 

Whistleblower Act. Section 554.007(b) provides that “[a] public employee of a local governmental entity 

may sue under this chapter in a district court of the county in which the cause of action arises or in a district 

court of any county in the same geographic area that has established with the county in which the cause of 

action arises a council of governments or other regional commission under Chapter 391, Local Government 

Code.” TEX. GOV’T CODE ANN. § 554.007(b). Sims’ petition alleged Tarrant County and Dallas County 

are members of the North Texas Council of Governments and venue was therefore proper in Dallas County. 
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with respect thereto; venue is the proper place where that power is exercised.” Id. 

Here, we consider only the pleadings and evidence relevant to the jurisdictional 

inquiry. See Lytle, 227 S.W.3d at 408. Further, we are not convinced our resolution 

of this matter would in any way encourage venue shopping in future cases. We 

overrule TCCD’s second issue. 

We affirm the trial court’s denial of TCCD’s plea to the jurisdiction regarding 

Sims’ constitutional claims. Regarding Sims’ claims under the Whistleblower Act, 

we reverse the trial court’s order denying TCCD’s plea to the jurisdiction, render 

judgment dismissing Sims’ Whistleblower Act claims, and remand for further 

proceedings consistent with this opinion. 

Schenck, J., concurring and dissenting. 

200351F.P05 

 

/Craig Smith/ 

CRAIG SMITH 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

TARRANT COUNTY COLLEGE 

DISTRICT, Appellant 

No. 05-20-00351-CV V. 

AMANDA SIMS, Appellee 

 On Appeal from the 116th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-19-18217. 

Opinion delivered by Justice Smith. 

Justices Schenck and Garcia 

participating. 

 In accordance with this Court’s opinion of this date, the trial court’s order 

denying Tarrant County College District’s plea to the jurisdiction on Amanda 

Sims’ constitutional claims is AFFIRMED. The trial court’s order denying 

Tarrant County College District’s plea to the jurisdiction on Amanda Sims’ claims 

under the Whistleblower Act is REVERSED, and we RENDER judgment 

dismissing Amanda Sims’ claims under the Whistleblower Act. This cause is 

REMANDED to the trial court for further proceedings consistent with this 

opinion. 

 It is ORDERED that each party bear its own costs of this appeal. 

Judgment entered this 10th day of March 2021.