Eric D. HILLMAN, Petitioner, v. NUECES COUNTY, Texas and Nueces County District Attorney's Office, Respondents

No. 17-0588

Supreme Court of Texas.

Argued October 31, 2018 Opinion delivered: March 15, 2019

Amie Augenstein, Christopher John Gale, Gale Law Group, PLLC, Corpus Christi, for Petitioner

Jeffrey R. Pruitt, Jenny Cron, Laura Garza Jimenez, Nueces County Attorney's Office, Corpus Christi, for Respondents

Justice Boyd delivered the opinion of the Court.

A former assistant district attorney filed this suit alleging that the county wrongfully terminated his employment because he refused his supervisor's order to withhold exculpatory evidence from a criminal defendant. The trial court dismissed the suit for lack of jurisdiction, and the court of appeals affirmed. Because we agree with those courts that governmental immunity bars the suit, we also affirm.

**I.**

**Background**1

Eric Hillman served as an assistant district attorney in Nueces County for two years. While preparing to prosecute a defendant charged with intoxicated assault and leaving the scene of an accident, Hillman discovered and interviewed a witness who said she was with the defendant the night of the incident and he was not intoxicated. Because the police report did not identify this witness, Hillman told his supervisor that he needed to disclose the witness to the defendant's attorney. The supervisor disagreed and instructed Hillman not to disclose the witness. Believing that he was legally required to disclose the witness, Hillman called the State Bar Ethics Hotline and the Texas Center for Legal Ethics for advice. Both told him he should disclose the information.

Three days before the defendant's trial, the victim confirmed to Hillman that the witness had been present at the scene. Hillman relayed this information to his *357supervisor and informed her that he had decided to disclose the witness to the defense attorney. On the day of trial, Hillman was fired for "failing to follow instructions." He alleges he was fired solely for refusing to withhold exculpatory evidence.

Hillman sued the County, the District Attorney's Office, and then-District Attorney Mark Skurka, in his official capacity (collectively, the County), seeking actual damages for lost wages and benefits, mental anguish, pain and suffering, and loss of earning capacity, and exemplary damages. The County moved to dismiss on the ground that governmental immunity bars Hillman's claims. The trial court agreed and dismissed the case, and the court of appeals affirmed, 559 S.W.3d 183, 187 (Tex. App.-Corpus Christi-Edinburg 2017).

**II.**

**Governmental Immunity**

Sovereign immunity-usually called governmental immunity when referring to political subdivisions-protects governmental entities against suits and legal liabilities. *City of Houston v. Hous. Mun. Emps. Pension Sys.* , 549 S.W.3d 566, 575 (Tex. 2018) ; *see also**Reata Constr. Corp. v. City of Dallas* , 197 S.W.3d 371, 374 (Tex. 2006). The County pleaded immunity from both suit and liability in this case, but only immunity from suit implicates the courts' jurisdiction. *State v. Lueck* , 290 S.W.3d 876, 880 (Tex. 2009). Because the trial court dismissed this case for lack of jurisdiction, we focus here solely on governmental immunity from suit. Because Hillman filed suit seeking money damages against a county and its department and official, governmental immunity bars this suit unless immunity has been waived. *See**City of Houston* , 549 S.W.3d at 575.

Like every court of appeals that has addressed the issue,2 the court of appeals concluded here that governmental immunity applies to Hillman's wrongful-termination claim and has not been waived. Presenting three alternative grounds for reversal, Hillman argues that (1) this Court abrogated or waived the County's immunity from this type of suit in *Sabine Pilot Service, Inc. v. Hauck* , 687 S.W.2d 733 (Tex. 1985), in which we recognized a cause of action for wrongful termination of an at-will employee for refusal to perform an illegal act, (2) the Texas legislature waived the County's immunity through the Michael Morton Act, or (3) we should abrogate or waive the County's immunity from such suits today. Although Hillman and his supporting amici3 bolster these grounds *358with serious and important policy concerns, we ultimately find the grounds themselves unconvincing.

**A. *Sabine Pilot***

Texas-"steadfastly an at-will employment state"-generally permits both employers and employees to terminate their relationship at any time for any reason unless they contractually agree otherwise. *Ritchie v. Rupe* , 443 S.W.3d 856, 885-86 (Tex. 2014). The law recognizes, however, a number of exceptions to this rule. One "very narrow exception to the employment-at-will doctrine," which we adopted in *Sabine Pilot* , prohibits employers from terminating at-will employees "for the sole reason that the employee refused to perform an illegal act." 687 S.W.2d at 735. An employer who terminates an employee solely for that reason is liable to the employee for all resulting "reasonable tort damages, including punitive damages." *Safeshred, Inc. v. Martinez* , 365 S.W.3d 655, 661 (Tex. 2012).

*Sabine Pilot* involved claims against a private-sector employer, and this Court's very brief opinion never mentioned the duties or obligations of government employers. Noting that the Court did not expressly limit the exception to private employers or declare it inapplicable to government employers, Hillman argues that *Sabine Pilot* prohibits all employers-government as well as private-from terminating at-will employees solely for refusing to perform an illegal act. This argument reads too much into *Sabine Pilot* . Nothing in that opinion indicates anything regarding government employers. Because we simply did not consider or address whether the exception applies to government employers in *Sabine Pilot* , it provides no controlling principle on that issue here. *See**In re Tex. Dep't of Transp.* , 218 S.W.3d 74, 77 (Tex. 2007) ("Because we did not address the question in *Wilson,* we do not consider *Wilson* controlling.") (referring to *Wilson v. Tex. Parks & Wildlife Dep't* , 886 S.W.2d 259, 261 (Tex. 1994) ).

Hillman suggests that even if *Sabine Pilot* did not resolve the issue, we can and should clarify today that the *Sabine Pilot* exception applies to government employers. *See**Sabine Pilot* , 687 S.W.2d at 735 ("[T]his court is free to judicially amend a judicially created doctrine."). We have no problem holding that the exception applies to all Texas employers, in the sense that they all have a common-law-tort duty not to terminate at-will employees solely because the employee refuses to perform an illegal act. But holding that the *Sabine Pilot* exception applies to government employers does not help Hillman. Hillman's problem is not that the duty does not apply to government employers, but that immunity bars any suit for a government employer's breach of that duty.

Governmental immunity protects all governmental entities against suits and liabilities for their governmental actions, even when acting as employers. *See**City of Galveston v. State* , 217 S.W.3d 466, 469 (Tex. 2007) (discussing the "heavy presumption in favor of immunity" for government actions). The legislature has provided a limited waiver of that immunity for certain tort and breach-of-contract actions.4

*359These statutes do not create tort or contractual duties or impose them on governmental entities. Those common-law duties preexist the statutes and apply to governmental entities as to anyone else, but immunity bars suits for breach of those duties. *See**City of Tyler v. Likes* , 962 S.W.2d 489, 494 (Tex. 1997) (characterizing governmental immunity as "a bar to a suit that would otherwise exist").

Instead of creating or imposing duties, the statutes waive the immunity that would otherwise protect the government, removing the barrier that precludes suits or liability for breach of those preexisting common-law duties. So although we can say that the common-law-tort duty we recognized in *Sabine Pilot* applies to all Texas employers, Hillman still cannot pursue this suit for the County's alleged breach of that duty unless the legislature has waived the County's governmental immunity. Because *Sabine Pilot* did not involve a governmental defendant and did not address governmental immunity or its waiver, it does not support Hillman's argument that the trial court had jurisdiction over his claim.

**B. The Michael Morton Act**

More than fifty-five years ago, the United States Supreme Court held that the Constitution's due-process clause prohibits criminal prosecutors from suppressing material evidence that is "favorable to an accused." *Brady v. Maryland* , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Just over five years ago, the Texas legislature statutorily addressed " *Brady* violations" by passing the Michael Morton Act. *See* Act of May 16, 2013, 83d Leg., R.S., ch. 49 (S.B. 1611) (codified at TEX. CRIM. PROC. CODE § 39.14) (amending subsection (a) and adding subsections (c) through (n) to section 39.14). The Michael Morton Act expressly requires prosecutors to

> disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.

TEX. CODE CRIM. PROC. § 39.14(h). Prosecutors must disclose such information whenever they discover it, whether "before, during, or after trial." *Id.* § 39.14(k).

Hillman contends that the Michael Morton Act required him to disclose the witness's information in the case he was prosecuting, so the County wrongfully terminated him for refusing to perform an illegal act. But even accepting these assertions as true,5 the issue here is not whether Hillman has pleaded a valid *Sabine Pilot* claim, but whether the Act waives *360the County's governmental immunity against that claim.

To waive governmental immunity, a statute must use "clear and unambiguous language" expressing that intent. *Tooke v. City of Mexia* , 197 S.W.3d 325, 328-29 (Tex. 2006) ; *see* TEX. GOV'T CODE § 311.034 ("[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language."). When deciding whether a statute clearly and unambiguously waives governmental immunity, we

> (1) consider "whether the statutory provisions, even if not a model of clarity, waive immunity without doubt;"

> (2) resolve any "ambiguity as to waiver ... in favor of retaining immunity;"

> (3) generally find waiver "if the Legislature requires that the [governmental] entity be joined in a lawsuit even though the entity would otherwise be immune from suit;"

> (4) consider whether the legislature "provided an objective limitation on the governmental entity's potential liability"; and

> (5) consider "whether the statutory provisions would serve any purpose absent a waiver of immunity."

*Harris Cty. Hosp. Dist. v. Tomball Reg'l Hosp.* , 283 S.W.3d 838, 844 (Tex. 2009).

Like the *Sabine Pilot* opinion, the Michael Morton Act does not address governmental immunity or waiver at all. None of its language waives immunity "without doubt" or even creates any ambiguity on the point. The Act does not require that the government be joined in any lawsuit or impose any limitation on the government's potential liability in such a suit. Implicating only the fifth consideration, Hillman argues that the Act necessarily must waive the County's immunity from his wrongful-termination suit because the Act's sole purpose is to require prosecutors to disclose exculpatory evidence. He contends that the Act would be "illusory" unless it waives immunity from *Sabine Pilot* claims, and finding no waiver "would defeat the sole purpose for passing the Michael Morton Act in the first place." As Hillman puts it, "A law making it a crime for a prosecutor to withhold evidence from the defense, but at the same time allowing the prosecutor's supervisor to fire him for refusing to do so is nonsensical and cannot possibly be what the legislature intended when it enacted the Michael Morton Act."

These arguments read too much into the Michael Morton Act. The Act serves obvious purposes separate and apart from addressing any wrongful-termination issues. It codifies and "supplements" prosecutors' constitutional obligations under *Brady* . Gerald S. Reamey, *The Truth Might Set You Free: How the Michael Morton Act Could Fundamentally Change Texas Criminal Discovery, or Not* , 48 TEX. TECH L. REV. 893, 901, 904 (2016). It requires production of several items that "previously were not discoverable" in criminal cases, including "written witness statements, written communications between the State and its agents, and work product." Cynthia E. Hujar Orr & Robert G. Rodery, *The Michael Morton Act: Minimizing Prosecutorial Misconduct* , 46 ST. MARY'S L.J. 407, 412-13 (2015). And violations of the Act may constitute grounds for reversing a conviction. *See, e.g.* , *Ex parte Temple* , No. WR-78,545-02, 2016 WL 6903758, at *1 & n.20 (Tex. Crim. App. Nov. 23, 2016) (not designated for publication) (granting post-conviction habeas relief for *Brady* violations) ("We believe that the Michael Morton Act was created to avoid problems exactly like those that arose in this case.").

Of course, the legislature could always do more to ensure that prosecutors *361disclose exculpatory information. Presumably, at least, prosecutors would be more likely to disclose such information if the Act authorized civil-damages suits-and waived immunity for such suits-against those who violate its requirements or who terminate subordinates who refuse to violate them. Whether countervailing policy concerns outweigh such benefits, however, "is the very essence of legislative choice." *Rodriguez v. United States* , 480 U.S. 522, 525-26, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987). And the mere fact that a statute prohibits a government official from engaging in particular conduct does not establish that the statute also waives governmental immunity whenever a government employer terminates an employee for refusing to engage in that conduct. If that were true, every statutory prohibition would waive immunity from wrongful-termination claims.

Nothing in the Michael Morton Act indicates a legislative intent to waive governmental immunity from a wrongful-termination suit under *Sabine Pilot* . No explicit language or even ambiguous language indicates such an intent. We hold that the Michael Morton Act does not waive the County's governmental immunity from this suit.

**C. Judicial Abrogation of Immunity**

Alternatively, Hillman urges us to abolish the "ancient and antiquated" doctrine of governmental immunity altogether, or at least modify it to allow for *Sabine Pilot* claims against governmental entities. He notes that sovereign immunity developed and exists as a common-law doctrine, and "it remains the judiciary's responsibility to define the boundaries of the common-law doctrine and to determine under what circumstances sovereign immunity exists in the first instance." *Reata* , 197 S.W.3d at 375. But in fulfilling that responsibility, we must respect both our precedent and our limitations under the constitutional separation of powers.

Having existed for more than six hundred years, the governmental-immunity doctrine is "an established principle of jurisprudence in all civilized nations." *Tooke* , 197 S.W.3d at 331 (quoting *Beers v. Arkansas* , 61 U.S. 527, 529, 20 How. 527, 15 L.Ed. 991 (1857) ). We first recognized it as a principle of Texas law more than 170 years ago. *See**Hosner v. DeYoung* , 1 Tex. 764 (1847) ("[N]o state can be sued in her own courts without her consent, and then only in the manner indicated by that consent."). Although the justifications for its existence have evolved through the years, we have steadfastly retained it in modern times precisely because it shields "the public from the costs and consequences of improvident actions of their governments," *Tooke* , 197 S.W.3d at 332, and ensures that the taxes the public pays are used "for their intended purposes," *Reata* , 197 S.W.3d at 375.

We are not blind to the truism that, "just as immunity is inherent to sovereignty, unfairness is inherent to immunity." *City of Galveston v. State* , 217 S.W.3d 466, 480 n.38 (Tex. 2007) (Willett, J., dissenting). But as the Court's majority explained in that case, we resolve that concern by deferring to the legislature, as the policy-making branch of government, "to decide whether and to what extent that immunity should be waived." *Id.* at 472-73. As important as Hillman's and his supporting amici's policy concerns may be, they do not justify discarding these fundamental principles of Texas law.

Although we defer to the legislature to waive immunity, the judicial branch retains the authority and responsibility to determine whether immunity exists in the first place, and to define its scope. As Hillman notes, we have recognized limitations on *362the scope of immunity in two recent cases. First, we held in *Reata* that governmental immunity does not reach counterclaims asserted against a governmental entity that "interjects itself into or chooses to engage in litigation to assert affirmative claims for monetary damages," to the extent the counterclaims serve only to offset any such damages. 197 S.W.3d at 375. Then last term, in *State ex rel. Best v. Harper* , we held that immunity does not extend to counterclaims for attorney's fees under the Texas Citizens Participation Act. 562 S.W.3d 1 (Tex. 2018).

The justifications for finding that immunity did not reach the counterclaims at issue in *Reata* and *Harper* are lacking here. The *Reata* limitation supports "fundamental fairness" while still fully protecting public resources because the counterclaim it permits against the government can serve only as an offset against any damages the government might recover; and to the extent the government expends litigation costs but makes no recovery, those expenses will have been made "for their intended purposes." *See**Reata* , 197 S.W.3d at 375-76. In other words, the only public resources expended will be those the government *chose* to expend when it elected to interject itself in litigation. And because the *Harper* limitation only permits a recovery of attorney's fees against a governmental entity that initiates a claim under the TCPA, "rather than damages or some other uncapped sum," we reasoned in that case that the limitation "does not present any grave danger to the public fisc." *Harper* , 562 S.W.3d at -.6

Two important limitations in *Reata* and *Harper* are not present in *Sabine Pilot* claims. First, this is not a situation in which the governmental entity has chosen to "interject[ ] itself or ... engage in litigation to assert affirmative claims." *Reata* , 197 S.W.3d at 375 ; *see Harper* , 562 S.W.3d at -. Governmental employers do not bring *Sabine Pilot* claims; they only defend against them. The government does not make the decision to expend resources in defending against these claims.

Second, *Sabine Pilot* claims sound in tort and thus allow for a broad range of damages, including punitive damages. *See**Safeshred* , 365 S.W.3d at 657. In fact, Hillman seeks exemplary damages, as well as damages for past and future lost wages and benefits, mental anguish, pain and suffering, and loss of earning capacity. An award of such damages could most certainly disrupt the "fiscal planning of the governmental entity" in this case. *Reata* , 197 S.W.3d at 375.7

*363As a tort that the government must defend against, a *Sabine Pilot* claim is not the type of claim or counterclaim we addressed in *Reata* or *Harper* . Without protections to guard the public fisc, no basis exists to hold that governmental immunity does not reach *Sabine Pilot* claims. Nor will we attempt to judicially determine and impose those fiscal protections, for that involves policy-making decisions that belong to the legislature and not to this Court. *See**Brown & Gay Eng'g, Inc. v. Olivares* , 461 S.W.3d 117, 121 (Tex. 2015) ("[S]overeign immunity preserves separation-of-powers principles by preventing the judiciary from interfering with the Legislature's prerogative to allocate tax dollars."); *Fed. Sign v. Tex. S. Univ.* , 951 S.W.2d 401, 415 (Tex. 1997) ( HECHT , J., concurring) ("For this Court to invade matters so laden with political policy concerns and, by abolishing immunity from suit, to disrupt the procedures the Legislature has fashioned, would be not only contrary to our precedents but also unsound jurisprudence.").

We in no way discount the serious policy concerns that Hillman, his supporting amici, and today's concurring opinion express. Governmental immunity from *Sabine Pilot* claims eliminates one means by which the law could ensure that prosecutors disclose exculpatory evidence as *Brady* and the Michael Morton Act require. As the amici note, the Act has enjoyed broad, bipartisan support in the legislature, the public, and the press, and the legislature has further strengthened the Act in more recent legislative sessions. But to hold that governmental immunity does not apply to *Sabine Pilot* claims, we must trespass across the boundary between defining immunity's scope (a judicial task) and waiving it (a legislative task). The distinction between scope and waiver is "a fine one," and we must "be very hesitant to declare immunity nonexistent in any particular case," lest we use our authority to define the scope as "a ruse for avoiding the Legislature." *City of Galveston,*217 S.W.3d at 471.

As we have repeatedly confirmed, " 'it is the Legislature's sole province to waive or abrogate sovereign immunity.' " *Tex. Adjutant Gen.'s Office v. Ngakoue* , 408 S.W.3d 350, 353 (Tex. 2013) (quoting *Mission Consol. Indep. Sch. Dist. v. Garcia* , 253 S.W.3d 653, 660 (Tex. 2008) ); *Rusk* , 392 S.W.3d at 93 (same in the tort-claims context); *Prairie View A & M Univ. v. Chatha* , 381 S.W.3d 500, 513 (Tex. 2012) (same in the employment context); *Univ. of Tex. at El Paso v. Herrera* , 322 S.W.3d 192, 201 n.49 (Tex. 2010). That the legislature has recently revised the Michael Morton Act to strengthen its protections illustrates its continuing awareness of the Act and its importance, as well as its willingness to take steps to improve it. Whether waiving immunity from *Sabine Pilot* claims should be the next step in that process is up to the legislature, and we must defer to it to "protect its policymaking function." *Wasson* , 489 S.W.3d at 432-33.

**D. Ultra Vires**

Finally, we note that the County suggests in its brief that, if we determine that immunity does not apply to *Sabine Pilot* claims, we should also hold that a *Sabine Pilot* violation is an *ultra vires* act, giving rise only to prospective injunctive relief and not to claims for damages or other "normal tort remedies." Picking up on this idea, several amici supporting Hillman urge us to allow an ultra vires claim if we determine that immunity *does* apply, and to remand the case to allow Hillman to pursue that claim. And today's concurring opinion suggests that Hillman "arguably"

*364has grounds for an *ultra vires* claim on remand. *Post* at ----. Hillman, however, adamantly insists we should not address this issue because we have "long held that a *Sabine Pilot* cause of action sounds in tort," and in any event, the County waived the issue by failing to raise it in the courts below. In light of Hillman's position on this potential alternative remedy, we will not address it here, and we express no opinion on the validity of an ultra vires claim under these circumstances.

**III.**

**Conclusion**

"Sovereign immunity from suit defeats a trial court's subject matter jurisdiction." *Miranda* , 133 S.W.3d at 225. When, as here, a claim falls within the realm of governmental immunity, courts have no jurisdiction to hear the case unless immunity has been waived. We hold that neither *Sabine Pilot* nor the Michael Morton Act waives the County's governmental immunity from Hillman's wrongful-termination claim, and we defer to the legislature to decide whether such a waiver would be appropriate as a matter of public policy. We affirm the trial court's judgment granting the County's plea to the jurisdiction and dismissing the case.

Justice Guzman filed a concurring opinion, in which Justice Lehrmann and Justice Devine joined.

Justice Guzman filed a concurring opinion, in which Justice Lehrmann and Justice Devine joined.

> *No tyranny is more cruel than the one practiced in the shadow of the laws and under color of justice.*1

Imagine being accused, charged, and convicted of bludgeoning your spouse to death. You are innocent but sentenced to life in prison, effectively orphaning your only child. Over the next 24 years, you wage an uphill battle to prove your innocence, eventually discovering that the prosecution held the keys to your jail cell before you ever set foot in it. Eye-witness testimony pointing the finger at someone else and DNA evidence that was never tested would have exculpated you if the prosecutor had not secreted the evidence from those who were constitutionally charged with defending you. Ultimately exonerated after nearly a quarter century in confinement, you walk free. The prosecutor-now a judge-is found in contempt of court for suppressing this evidence. Small comfort. Justice delayed is justice denied. But more than that, justice delayed is life denied.

While you were locked away for a crime you did not commit, you were denied your unalienable rights of life, liberty, and the pursuit of happiness. You lost your constitutional right to parent your child. To have his love and companionship. To shape who he is and how he became that way. Instead, your beautiful toddler is now a man struggling to reconnect with a person he doesn't know, can't remember as a parent, and spent years thinking was a vicious monster. And worse, the actual perpetrator of this heinous crime continued to walk the streets. Free to kill again.

Alas, this is not a hypothetical. This is the true story of Michael Morton.2 Husband.

*365Father. Supermarket manager. An ordinary Texan whose young wife fell victim to a stranger's brutality. And while Morton languished in jail, another young wife-Debra Baker-paid the ultimate price at the hands of the same killer, leaving yet another young child motherless. Foreseeable victims of overzealous prosecution.

Unfortunately, this is not an isolated incident. Official misconduct has been a factor in more than half of the nationally reported exonerations since 1989-nearly four score of which have occurred in Texas.3 Wrongful convictions are anathema to our constitution. And suppression of evidence is anathema to the duty of a prosecutor to seek justice. Concealment of exculpatory evidence undermines the integrity of our criminal justice system, which is of vital importance to every one of us: "Society wins not only when the guilty are convicted but when criminal trials are fair ... the administration of justice suffers when any accused is treated unfairly."4

The tragic story of Michael Morton and Debra Baker compelled the Legislature to take affirmative steps to prevent wrongful convictions due to prosecutorial misconduct. In the legislative session following Morton's exoneration, the Texas Legislature unanimously passed the Michael Morton Act.5 The Morton Act extends, but has not altered, prosecutors' longstanding obligation under *Brady v. Maryland*6 to disclose exculpatory evidence in the prosecution's possession. Before the Morton Act, prosecutors had a constitutional duty under *Brady* to disclose all evidence that might exonerate the defendant, but the defense had very limited pretrial discovery rights.7 Under the Morton Act, if the defense requests discovery, the prosecution is under a statutory duty to continually disclose exculpatory, mitigating, or impeachment evidence.8 The Act is an important legislative step towards ensuring *Brady* compliance and bolstering the integrity of the criminal justice system.

As this case sadly demonstrates, however, unacceptable gaps remain. When one good man refuses to stay silent, refuses to "just follow orders," and refuses to do the wrong thing under the misguided belief that it's for the greater good, he should not lose his job. While Hillman might have had *366a viable *ultra vires* claim, had he chosen to pursue one, the limited remedies available under that theory are manifestly inadequate to ensure accountability in matters of the highest constitutional dimension. The law must-but currently does not-afford a remedy that advances the Legislature's calculated efforts to secure our constitutional guarantees.

**I**

*Injustice anywhere is a threat to justice everywhere.*9

In 2013, Eric Hillman, an assistant district attorney in Nueces County, was assigned to prosecute David Sims for intoxication assault and leaving the scene of an accident.10 Hillman performed a diligent independent investigation and located a witness who was not listed in the police report. The witness told Hillman she was with Sims the entire evening, he had only consumed two alcoholic beverages, and he was not intoxicated when the accident occurred.11

Hillman immediately informed his supervisor that a new witness with exculpatory testimony had been located and he would be releasing that information to Sims's defense counsel. The supervisor demanded Hillman withhold the information, assuring him it was proper to do so.

Unconvinced, Hillman conducted an independent investigation of his ethical obligations, consulting with both the Texas Center for Legal Ethics and the State Bar of Texas Ethics Hotline. Both admonished him to disclose the information to defense counsel. Hillman therefore reported to his supervisor that he intended to turn over the evidence to the defense because withholding it would be unethical. According to Hillman, his supervisor responded, "Eric, you need to decide if you want to be a prosecutor or a defense attorney." A week after Hillman announced his intention to disclose the information, former District Attorney Mark Skurka summarily terminated Hillman's employment for refusing to "follow instructions."

Hillman sued the County, District Attorney Skurka, and the District Attorney's Office (collectively, the County) for wrongful termination, but his case was dismissed on a plea to the jurisdiction. Today the Court affirms, holding that (1) neither the common law nor the Morton Act permit Hillman to sue his governmental employer for damages and (2) Hillman has expressly waived an *ultra vires* claim.

I concur in today's judgment and join in much of the Court's reasoning. The gravamen of this case is governmental immunity: whether the County is immune from a wrongful-termination suit alleging a prosecutor was fired because he insisted on doing what the law requires. Under our immunity jurisprudence, this case is fairly straightforward, and the Court's analysis is sound. First, we did not abrogate governmental immunity in *Sabine Pilot.*12 The employer in that case was not a governmental entity, so the issue of governmental *367immunity was not before us and cannot be inferred *sub silentio.*13 Second, immunity has not been waived. We defer to the Legislature to waive immunity,14 and I agree with the Court that the Morton Act contains no such waiver because no "clear and unambiguous language" expresses that intent.15 Third, we should not abrogate immunity here. Although we have the power to abrogate immunity,16 we have rarely done so, and even then we limited it to offset claims rather than allowing unlimited recovery of monetary damages.17 Sanctioning the recovery of monetary damages-without any legislatively considered limitations like those in the Texas Tort Claims Act-would have significant public-fisc implications that raise separation-of-powers concerns. Finally, though Hillman arguably has a viable *ultra vires* claim, he has disclaimed any intent to assert one. Accordingly, I agree with the Court that the County is immune from suit in this case and that remand is not appropriate. I write separately, however, to highlight a lacuna in the legislative scheme that neuters the Legislature's efforts to forestall prosecutorial misconduct that could lead to wrongful convictions.

**II**

*If impunity is not demolished, all efforts to bring an end to corruption are in vain.*18

Taking Hillman's account as true, he was fired for endeavoring to fulfill constitutional and statutory obligations imposed on all prosecutors. By any measure of law and morality in a civilized country, that is wrongful termination. Those we entrust to pursue justice should not be put to the Hobson's choice of earning a living or doing the right thing. Cloaking governmental employers with absolute immunity in such circumstances erodes public confidence in the criminal justice system and undermines concerted legislative efforts to reform that system. By and large, prosecutors are honorable public servants committed to fairness in the administration of justice, but when unlawful practices are tolerated, encouraged, or rewarded with career advantages, others may be enticed to cross the line or may be cowed by consequences visited on those who resist. It's fair to assume that the Legislature did not envision such a consequence when *368enacting the Morton Act without adopting measures to ensure prosecutors could comply with the Act without losing their jobs. In light of the underbelly this case exposes, it would be appropriate for the Legislature to do so now.

Both *Brady* and the Morton Act obligate prosecutors to disclose certain types of evidence to the defense as a function of due process and to stave off wrongful convictions by thwarting pernicious prosecutorial practices. Wrongful convictions, as numerous studies have shown, come at a significant cost to our society. Financial burdens on the taxpayers accumulate through "an appeal, an appellate reversal, a retrial, investigational efforts to trace the real offender, possible civil lawsuits, and compensatory payments."19 While we can calculate economic losses from wrongful convictions-for example, the state has paid more than $ 93 million in compensation to 101 men and women who were wrongfully sent to prison over the past 25 years20 -the true cost is immeasurable. There is simply no way to restore lost time, no reset button that erases the financial and emotional consequences to the wrongfully incarcerated and their families.

On the other side of the coin, for every innocent person that sits in jail, a criminal roams free. Free to commit more crimes. If DNA-exoneration cases are any kind of indicator, the societal consequences of convicting the wrong person-however it happens-are devastating. For example, out of 325 DNA-exoneration cases from 1989 to 2014, 68 of the true perpetrators later committed an additional 142 violent crimes-including 77 rapes, 34 homicides, and 31 other violent crimes.21

With such grave consequences, the best defense is a good offense. The Morton Act is a strong foundation, but more is required to ensure that those wielding power use it as the founders intended. Prosecutors are on the forefront of avoiding wrongful convictions and ameliorating the ensuing societal costs. Based on data complied by the National Registry of Exonerations, official misconduct ranks second among the top five factors contributing to exonerations, leading to over half of the 2,401 (and counting) exonerations since 1989.22 The most common type of official misconduct involves concealing exculpatory evidence.23

While multiple external forces are aimed at ensuring accountability for misconduct-including professional discipline,24 potential criminal charges,25 and loss of *369elected office-this case epitomizes the limits of existing accountability measures. Research shows professional discipline and criminal charges are rarely imposed for prosecutorial misconduct.26 Even in the rare instances when misconduct is uncovered, it usually does not surface until after an innocent person has stayed in prison for years,27 presenting time-based challenges to any investigation or prosecution of wrongdoing. The possibility of some adverse consequence in some future public election has even less force as a deterrent28 and, more importantly, does absolutely nothing to alleviate irreparable harm resulting from the wrong.

*Brady* violations are difficult to uncover because, by definition, they involve concealment of evidence in the prosecution's exclusive possession and control.29 Indeed, exposure of *Brady* violations generally requires the prosecution's own admission, some "chance discovery" by the defense team, or "dumb luck."30 The most effective way to combat prosecutorial misconduct is to provide a disincentive extrinsic to an individual prosecutor's own moral compass. "Ironically, the only one who can act as a check on the prosecution is the prosecution itself."31 This case places the internal dynamics within the prosecutor's office under a microscope. Although many district attorney's offices have implemented internal guidance or best practices,32 when the pressure to withhold evidence comes from the top, internal guidelines are at best a window dressing.33 Under circumstances like those alleged here, it is imperative that honest prosecutors not be punished.

Absent legislative action, the best someone in Hillman's position could hope for is to seek prospective equitable relief under an *ultra vires* theory.34 An ultra vires *370claim can be brought against a state official if the officer "acted without legal authority."35 Although a district attorney has discretion to fire subordinates,36 one could argue there is no discretion to undertake such an action if it "conflicts with the law."37 If Hillman had not opposed consideration of his claims under an *ultra vires* theory, I would remand in the interest of justice to allow him to pursue that claim.

However, as a policy matter, I am dubious that a remedy limited to prospective equitable relief is strong enough to deter the egregious conduct alleged here. To be effective, the remedy must be proportional to the wrong. To my mind, the threat of other consequences, including monetary relief, would provide the external pressure required to motivate vigilance and self-policing. The Legislature is better suited, and constitutionally constituted, to weigh the policy interests that bear on whether to waive immunity (and to what extent),38 but as to that matter, this case makes painfully clear that what's past is prologue.

1

We construe Hillman's pleaded allegations liberally to determine whether they allege facts that establish a waiver of governmental immunity. *Harris County v. Annab* , 547 S.W.3d 609, 612-13 (Tex. 2018). For purposes of this appeal, we accept Hillman's pleaded facts as true. If the pleadings and record "conclusively negate the existence of jurisdiction, ... the suit should be dismissed." *Rusk State Hosp. v. Black* , 392 S.W.3d 88, 96 (Tex. 2012).

2

*See**Beaumont Indep. Sch. Dist. v. Thomas* , No. 09-15-00029-CV, 2016 WL 348949, at *3 (Tex. App.-Beaumont Jan. 28, 2016, no pet.) (mem. op.); *Tex. State Office of Admin. Hearings v. Birch* , No. 04-10-00777-CV, 2010 WL 5141647, at *1 (Tex. App.-San Antonio Dec. 15, 2010, no pet.) (mem. op.); *Midland Indep. Sch. Dist. v. Watley* , 216 S.W.3d 374, 381 (Tex. App.-Eastland 2006, no pet) ; *Nueces County v. Thornton* , No. 13-03-011-CV, 2004 WL 396608, at *5 (Tex. App.-Corpus Christi-Edinburg Mar. 4, 2004, no pet.) (mem. op.); *Salazar v. Lopez* , 88 S.W.3d 351, 353 (Tex. App.-San Antonio 2002, no pet.) ; *Dall. Metrocare Servs. v. Pratt* , No. 05-02-00327-CV, 2002 WL 31238640, at *2 (Tex. App.-Dallas Oct. 7, 2002) (not designated for publication), *rev'd in part on other grounds* , 124 S.W.3d 147 (Tex. 2003) ; *Univ. of Tex. Med. Branch at Galveston v. Hohman* , 6 S.W.3d 767, 777 (Tex. App.-Houston [1st Dist.] 1999, pet. dism'd w.o.j.) ; *Carroll v. Black* , 938 S.W.2d 134, 134-35 (Tex. App.-Waco 1996, writ denied).

3

We received amicus briefs in support of Hillman from the Innocence Project, Inc. and the Innocence Project of Texas; the Texas Criminal Defense Lawyers Association; and The Cato Institute, The American Civil Liberties Union, The Due Process Institute, Law Enforcement Action Partnership, and Texas criminal law scholars. We received amicus briefs supporting the County from the State of Texas; the Texas Association of School Boards Legal Assistance Fund; and the Texas Municipal League, Texas Association of Counties, and the Texas City Attorneys Association.

4

*See* Tex. Civ. Prac. & Rem. Code §§ 101.001 -.009 (waiving immunity for certain tort claims against governmental entities); Tex. Gov't Code §§ 2260.001 -.108 (providing procedures for resolving certain contract claims against units of state government); Tex. Loc. Gov't Code §§ 271.151 -.160 (waiving immunity for certain contract claims against local governmental entities). Hillman does not contend that the Tort Claims Act or chapter 271 waivers apply to and waive immunity for his claims.

5

The Attorney General, acting as counsel for the State of Texas, filed an amicus brief arguing that neither *Brady* nor the Michael Morton Act required Hillman to disclose the witness information in the underlying case because the information was readily available to the defendant, who was with the undisclosed witness on the night of the incident. Thus, the State contends, Hillman has failed to allege a valid *Sabine Pilot* claim because even if he was fired for refusing to withhold the information, he was not fired for refusing to perform an illegal act. The merits of Hillman's claim, however, are not before us in this appeal from a dismissal for lack of jurisdiction. We must decide only whether governmental immunity bars Hillman's claims, and we "adhere to the fundamental precept that a court must not proceed on the merits of a case until legitimate challenges to its jurisdiction have been decided." *Tex. Dep't of Parks & Wildlife v. Miranda* , 133 S.W.3d 217, 228 (Tex. 2004). We need not and do not address the State's merits-related arguments.

6

Hillman's supporting amici also cite *Wasson Interests, Ltd. v. City of Jacksonville* , in which we held that immunity does not apply to breach-of-contract claims against municipalities that acted in their proprietary (as opposed to governmental) capacity when they entered the contract. 489 S.W.3d 427 (Tex. 2016). But we did not abrogate or limit governmental immunity in *Wasson* . We merely applied the law's longstanding recognition that a municipality does not act as or for the sovereign when it acts in its proprietary capacity. *Id.* at 433.

7

*See, e.g.* , *Safeshred* , 365 S.W.3d at 658 (noting that jury awarded *Sabine Pilot* plaintiff $ 7,569.18 in lost wages, $ 10,000 in mental anguish, and $ 250,000 in exemplary damages); *Simmons Airlines v. Lagrotte* , 50 S.W.3d 748, 749 (Tex. App.-Dallas 2001, pet. denied) (jury awarded $ 2,354,504 in actual damages and $ 3,459,008 in exemplary damages); *Enserch Expl., Inc. v. Thorne* , No. 11-98-00070-CV, 2000 WL 34234577, at *1 (Tex. App.-Eastland Jan. 13, 2000, no pet.) (not designated for publication) (jury awarded $ 464,036 for past lost earnings and benefits and $ 100,000 for lost earning capacity and future benefits); *Willy v. Coastal States Mgmt. Co.* , 939 S.W.2d 193, 194 (Tex. App.-Houston [1st Dist.] 1996, writ denied) (jury awarded $ 267,283 in actual damages and $ 232,717 in punitive damages, and trial court awarded $ 412,757.99 in prejudgment interest).

1

Charles de Secondat, Baron de Montesquieu, *Considerations on the Causes of the Greatness of the Romans and Their Decline* 130 (David Lowenthal trans., Hackett Pub. Co., 1999) (1965).

2

*See Michael Morton* , Innocence Project , https://www.innocenceproject.org/cases/michael-morton/ (last visited Mar. 1, 2019); *see also* Brandi Grissom, *Morton Talks About Ordeal, Life After Prison* , Texas Tribune (Mar. 27, 2012), https://www.texastribune.org/2012/03/27/michael-morton-talks-about-ordeal-plans-future; Claire Osborn, *How Ken Anderson was Released After Only Five Days in Jail* , Statesman (Sept. 26, 2018), https://www.statesman.com/NEWS/20131116/How-Ken-Anderson-was-released-after-only-five-days-in-jail.

3

*See Exoneration Detail List* , National Registry of Exonerations , http://www.law.umich.edu/special/exoneration/Pages/detaillist.aspx?FilterClear=1&View={faf6eddb-5a68-4f8f-8a52-2c61f5bf9ea7}&SortField=OM&SortDir=Asc&FilterField1=OM&FilterValue1=8_OM&FilterField2=ST&FilterValue2=TX (last visited Mar. 1, 2019).

4

*Brady v. Maryland* , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

5

*See* Michael Morton Act, 83d Leg., R.S., ch. 49, 2013 Tex. Gen. Laws 106 (amended 2017) (current version at Tex. Crim. Proc. Code art. 39.14 ); *see also* Brandi Grissom, *Michael Morton Act Handily Passes Senate* , Texas Tribune (Apr. 11, 2013), https://www.texastribune.org/2013/04/11/senate-approves-michael-morton-act/.

6

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

7

*Hackathorn v. State* , 422 S.W.2d 920, 922 (Tex. Crim. App. 1964) ("It has been the consistent holding of this Court that counsel for the state is not required to furnish the accused with statements of witnesses, copies of reports, or his written statements, for the purpose of pre-trial inspection.").

8

Tex. Crim. Proc. Code § 39.14(a), (h), (k).

9

Martin Luther King, Jr., *Letter from Birmingham Jail* (Apr. 16, 1963).

10

The facts recounted are based on Hillman's pleadings, which we construe liberally in his favor. *Tex. Dep't of Parks & Wildlife v. Miranda* , 133 S.W.3d 217, 226 (Tex. 2004).

11

The identity of the witness and her relationship to the incident is not stated in the pleadings. The Innocence Project's amicus brief states, and the parties do not dispute, that the witness was a parent who chaperoned a group of girls, including the victim, on the night of the incident when they first became acquainted with Sims and his group.

12

687 S.W.2d 733 (Tex. 1985).

13

*See**id.* at 734.

14

*Tex. Nat. Res. Conservation Comm'n v. IT-Davy* , 74 S.W.3d 849, 854 (Tex. 2002) ("[T]he Legislature is better suited than the courts to weigh the conflicting public policies associated with waiving immunity ...."); *Fed. Sign v. Tex. S. Univ.* , 951 S.W.2d 401, 409 (Tex. 1997) ("[T]his Court has uniformly held that it is the Legislature's sole province to waive or abrogate sovereign immunity.").

15

*Tooke v. City of Mexia* , 197 S.W.3d 325, 328-29 (Tex. 2006).

16

*Reata Constr. Corp. v. City of Dallas* , 197 S.W.3d 371, 375 (Tex. 2006) ("[I]t remains the judiciary's responsibility to define the boundaries of [sovereign immunity] and to determine under what circumstances sovereign immunity exists in the first instance.").

17

*See, e.g.* , *State v. Harper* , 562 S.W.3d 1, 19-20 (Tex. 2018) (holding immunity does not extend to counterclaims for attorney's fees under the Texas Citizens Participation Act); *Reata Constr.* , 197 S.W.3d at 375 (abrogating immunity to the extent the opposing party's claims offset the government's recovery); *cf.**City of Galveston v. State* , 217 S.W.3d 466, 471 (Tex. 2007) (cautioning that the nonexistence of immunity "could become a ruse for avoiding the Legislature, [and] courts should be very hesitant to declare immunity nonexistent in any particular case.").

18

Rigoberta Menchú Tum, *The Plague of Corruption: Overcoming Impunity and Injustice* , in Global Corruption Report 2001, at 155 (Robin Hodess, Jessie Banfield & Toby Wolfe eds., Transparency Int'l 2001).

19

Center for Prosecutor Integrity, an Epidemic of Prosecutor Misconduct at 8-9 (2013), http://www.prosecutorintegrity.org/wp-content/uploads/EpidemicofProsecutorMisconduct.pdf.

20

Johnathan Silver & Lindsay Carbonell, *Wrongful Convictions Have Cost Texans More Than $ 93 Million* , Texas Tribune (June 24, 2016), https://www.texastribune.org/2016/06/24/wrongful-convictions-cost-texans-over-93-million/.

21

Emily West & Vanessa Meterko, *Innocence Project: DNA Exonerations, 1989-2014: Review of Data and Findings from the First 25 Years* , 79 Alb. L. Rev. 717, 723, 731-32 (2016).

22

*% Exonerations by Contributing Factor* , National Registry of Exonerations , http://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx (last visited Mar. 1, 2019).

23

National Registry of Exonerations, Exonerations in 2017, at 6 (2018), http://www.law.umich.edu/special/exoneration/documents/Exonerationsin2017.pdf.

24

Tex. Disciplinary Rules Prof'l Conduct R. 3.04(a), 3.09(d), 8.04(a), *reprinted in* Tex. Gov't Code , tit. 2, subtit. G, app. A.

25

*See, e.g.* , Tex. Penal Code §§ 37.09 (tampering with or fabricating physical evidence), .10 (tampering with governmental records), 39.03(a)(2) (abuse of official capacity).

26

*See, e.g.* , Gerald S. Reamey, *The Truth Might Set You Free: How the Michael Morton Act Could Fundamentally Change Texas Criminal Discovery, or Not* , 48 Tex. Tech L. Rev. 893, 920, 924 (2016) ; Lesley E. Williams, *The Civil Regulation of Prosecutors* , 67 Fordham L. Rev. 3441, 3472-77 (1999) ; *see also* Brandi Grissom, *Study: Prosecutors Did Not Face Discipline for Misconduct in Cases* , Texas Tribune (Mar. 29, 2012), https://www.texastribune.org/2012/03/29/study-prosecutors-not-disciplined-misconduct/.

27

Of the 54 DNA-exonerated wrongful convictions attributable to official misconduct, most of the wrongfully convicted spent at least 10 years in prison. *Featured Cases* , Innocence Project , https://www.innocenceproject.org/all-cases/#government-misconduct,exonerated-by-dna (last visited Mar. 1, 2019).

28

George A. Weiss, *Prosecutorial Accountability After* Connick v. Thompson, 60 Drake L. Rev. 199, 222-23 (2011).

29

Rachel E. Barkow, *Organizational Guidelines for the Prosecutor's Office* , 31 Cardozo L. Rev. 2089, 2093 (2010) (noting "the biggest problem" with *Brady* violations "is that most violations are never discovered in the first place" because "[d]efendants often have no way of knowing whether a prosecutor is in possession of exculpatory evidence that should be disclosed under *Brady* ").

30

Don J. Degabrielle & Eliot F. Turner, *Ethics, Justice, and Prosecution* , 32 Rev. of Litig. 279, 286-88 (2013).

31

Texas Criminal Defense Lawyer's Association's Amicus Brief at 4.

32

Texas Appleseed & Texas Defender Service , Towards More Transparent Justice: the Michael Morton Act's First Year 19-20 (2015), https://www.texasappleseed.org/sites/default/files/2015MortonAct-FinalReport.pdf.

33

Williams, *supra* note 26, at 3477-78 ("Prosecutors' offices would seem to know best what prosecutors do, but they may be inherently too biased to ensure fair disciplinary review.").

34

*See**City of El Paso v. Heinrich* , 284 S.W.3d 366, 376 (Tex. 2009) ("[A] claimant who successfully proves an ultra vires claim is entitled to prospective injunctive relief ....").

35

*Id.* at 372.

36

Tex. Gov't Code § 41.105.

37

*Hous. Belt & Terminal Ry. Co. v. City of Houston* , 487 S.W.3d 154, 158, 162-63 (Tex. 2016).

38

*Heinrich* , 284 S.W.3d at 377 (noting the Legislature "can authorize retrospective relief if appropriate" and citing as an example section 180.006 of the Texas Local Government Code, which was enacted after *City of Houston v. Williams* , 216 S.W.3d 827 (Tex. 2007), and waived immunity for firefighters' and police officers' claims for back pay and civil penalties).