### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00186- CV

Travis County, Texas; and Sherif f Gre g Ham ilton, in his O ff icial Capacity, Appellan ts

v. Rick Roger s, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 419 TH JUDICI AL DISTRICT NO. D-1 -GN-1 2-0 0389 7, H ONO RAB LE STEP HEN Y ELENOSK Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

T r a v is Co u n ty , T e xa s , a

n d Sh e r if f G r e g H a mi lt o n , in h is o f

f ic ia l c a p a c it y , ( c o ll e c ti v e ly , the County ) appea l the trial court’s order deny ing the County ’s plea to the jurisdiction. See Tex. Civ.
Prac. & Rem. Code § 51.014(a) (8) (per mi tt in g a p p e a l f r o m in te r lo c u tory order deny ing g overnme ntal unit’s plea to jurisdiction). I n its plea, the County arg ued that Rick Roge rs’s sui t for breac h of an
ag re em en t settling an employ ment-re lated dispute betwee n Roge rs and the County was barr ed by

sovere ign immunity . We will affirm the trial c ourt’s orde r.

BACK GR OUND
I n 2006, Roge rs beg an wo rk i n g fo r the County as a patrol office r in the L aw Enforc ement Bur eau. I n Fe bruar y 2007, Roge rs wrote a letter to Hamilton in which he complained of the trea tment new employ ees rec eived d u ri n g t ra ining and repor ted that he had observe d violations of the law and discrimination by County employ ees. Specifica lly , Roge rs reported thathe was awa re that employ ees came to work with “alc ohol on their brea th,” and that one deputy was siphoni n g gas fr o m his patrol car to supplement his income. Roge rs also repor ted that he had observe d fema le employ ees being hara ssed and minority employ ees being discriminated ag ainst by their co-w orker s. After an internal investiga tion was conducte d, the investiga ting office r conclude d that Roge rs had eng ag ed in “unbec oming conduct” and failed to follow the chain of command and

rec ommended that he be terminated. On April 20, 2007, the Chief Deputy informed Roge rs that he had “dete rmined that it [was] no longe r mutually benef icial to continue [R og ers’ s] association with the Travis County Sheriff’ s Of fi ce” and offere d him the opportuni ty to resig n. The Chi ef Deputy further informed Roge rs that if he elec ted not to resig n, the terminat i o n wo u l d n o t be place d in eff ect until the t i m e fo r h im to appea l “had been exhausted.” Roge rs wrote a letter to Hamilton “appe aling ” the rec ommendation of termination, but on May 24, 2007, Hamilton inf ormed Roge rs that his employ

ment with the Travis County Sheriff’ s office was terminated eff ective May 23, 2007.
Be lieving the termination of his employ ment was in violation of the Whis tleblower
Act and the Texas Commi ssion on Human Righ ts Act, Roge rs prese nted these claims to the Travis County Commi ssioner’s Court. Acc ording to Roge rs, his attorney was then contac ted by the County Attorney to discuss settlement. On Aug ust 14, 20 0 7, the parties executed a Settlement Ag ree ment pursuant to which Roge rs ag ree d to rele ase any claims he might have ag ainst the County and t h e C o u n t y ag ree d to hire Roger s as a Cadet C orre ctions Offic er. The S ettlement Agre ement also provided:
Roge rs will not be trea ted worse or discrim i n at ed ag ainst beca use he complained about his previous termination, beca use of the events involving his previous termination, and/or be cause he ente red into this ag ree ment.

2I n the underly ing litigation, Roge rs contende d that the County brea ched this term of the Settlement

Ag ree ment in Dec ember 2011 and Marc h 2012 when three differ ent hiring boards ref used his
reque sts for transfe rs to the Patrol Division and to the Courthouse Security Division. Acc ording to Roge rs, eac h of t h e hiring boards “g rade d him down” for specific rea sons forbidden by the Settlement Ag ree ment, i.e., his previous complaints to Hamilton, his having been disc i p l i n ed for that conduct, and the fac t that his employ ment had previously been terminated. Roge rs alleg ed that these brea ches of the Settlement Ag ree ment resulted in his being denied the opportunity to transfe r to highe r pay

ing jobs in 2011 and 2012. The County filed a plea to the jurisdiction in which i t asser ted that g overnme ntal immunit y barr ed Roge rs’s brea ch of contra ct claim. Roge rs counter ed that, beca use the County had waived its immunit y for the claims that wer e settled, a suit to enfor ce the Settlement Ag ree ment was l i k ew i s e not barr ed by immunit y . See Texas A & M Univ.-Kingsville v. Lawson , 87 S.W

. 3 d 5 1 8 , 522-23 (Tex. 2002) (“[W] e hold that, having waived immunit y from suit in the Whis tleblower Act, the State may not now claim immunit y from a suit broug ht to enfor ce a settlement ag ree ment rea ched
to dispose of a claim broug ht under that Act.”)

. The trial court denied the plea to the jurisdiction and this int erloc utory

appea l followed.

STANDARD OF REVIEW
A plea to the jurisdiction is a dilatory plea that se eks dismissal of a ca se for lack of subject-matter jurisdiction. Harris Cnty. v. Sykes , 1 36 S.W .3d 635, 638 (Tex. 2004). We revie w de novo a trial court’s ruling on a plea to the jurisdiction. W estbrook v. Penley , 231 S.W .3d 389, 394 ( T e x. 2 0 0 7 )

. Sa

ti s f y in g s ta tu to r y p r e r e q u is it e s to s u it is a ju

r is d ic ti o n a l r e q

u ir e me n t in a ll s u it s a g a in s t
3a g overnme ntal entity

. See Tex. Gov’t Code § 311.034(a)

. Fa ilure to c omply with a jurisdictional

require ment deprive s the trial court of the power to act, other th an t o d et er m i ne that it lacks jurisdiction. City of DeSoto v. W hite , 288 S.W .3d 389, 393 (Tex. 2009).

DISCUSSIO N Gover nmental im

mu n it y p r o te c ts p o li ti c a l s u

b d iv is io n s o f th e s ta

te , in c lu d in g c o u

n ties and its ag encie s, from liability and lawsuits. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist.

v. Texas Political Subdivisions Prop./Cas. Joint Self-Ins. Fund , 212 S.W .3d 320, 324 (Tex. 2006). “A polit ical subdi vision enjoy s g overnme ntal immunit y from sui t to the ex tent th at i m m u n ity has
not been abrog ated by the L eg is l at u re . ” Id. Gover nmental i mmunity is waived only by clea r and unambig uous lang uag e indi cating the l eg islature’s intent to do so. Kirby Lake Dev., L td. v. C lear Lake City W

ater Auth. , 320 S.W .3d 829, 838 (Tex. 2010). The issue in t h i s ca s e is whether the
L eg islature has w aived immunity for Rog ers’ s brea ch of c ontrac t claim. Roge rs arg ues t hat t he C oun ty ’s i mmunity from sui t was waived by a combination of section 554.035 of the Texas Gover nment Code and the T ex as Supreme Court’s opinion in
Lawson

. S

ee T ex . Gov’t Code § 554.035 (“A public employ ee who alleg es a violation of [t he Whis tleblower Act] may sue the employing state or local g overnme n t al entity for the relief provided by this chapte r.”) ; Lawson , 87 S.W .3d at 522-23. I n Lawson , a university fac ulty member b r o u g h t a Wh is tl e b lo w e r A c t c la im a g a in s t th e u n iv e r s it y a f te r it te r mi n a te d h is e mp lo y

me n t. La ws o n , 87 S.W .3d at 518. The suit ended when the parties enter ed into a settlement ag ree ment. Id. at 519.
L awson subsequently broug ht another suit, claiming bre ach of the settlement ag ree ment. Id. The university filed a plea to the j urisdiction, claiming to be im mune from suit for br ea ch o f co n t ra ct.

4Id. The supreme court observe d that, while the L eg islature has waived immunit y for Whis tleblower

Act claims, it has not waived immunit y for the ty pe of brea ch of contra ct claim L awson broug ht in his second suit. Id. at 521. But a plurality of the court held that “whe n a g overnme ntal entity is exposed to suit be cause of a waiver of immunit y , it c annot nullify that waiver by settling the claim with an ag ree ment on which it cannot be sued.” Id. The court re as o n ed , “We do not think the
L eg islature int ended by waiving the bar of i mmunity for claims under the Whis tleblower Act that settlements would be preve nted or delay ed by a reviva l of the bar in the form of immunit y from suit for breac h of settl ement agr ee m ents .” Id. The plurality held t hat “having waived imm unity from suit in the Whis tleblower Act, the State may not now claim immunit y from a suit broug ht to enfor ce a settlement a g ree ment rea ched to dispose of a cla im broug ht under that Ac t.” Id. at 522-23.
T h e Co u n ty arg ues that Lawson is distinguishable beca use, in the p r e s e n t c a s e , Ro g e r s

never filed sui t alleg ing violations of the Whis tleblower Act and therefor e there was no waiver of
g overnme ntal immunit y . Acc ording to the County , filing a suit alleg ing fac ts meeting the elements of a claim under the Whis tleblower Act is a statuto ry p rerequisite to suit which Roge rs failed to comply with. See Tex. Gov’ t Code §§ 554.005 (“Except as provided by Section 554.006, a public employ ee who seeks relief under this c hapter must sue not la ter than the 90th day afte r the date on which the alleg ed violation of this ch ap t er : (1) occur red; or (2) was discovere d by the employ ee throug h rea sonable diligenc e.”) , .006 (providing for tolling of 90-d ay fi l ing period for amount of time public employ ee u s es in meeting his obliga tion to participa te in the g rieva nce or appea l
proce dures of his employ er)

. Thus, in the County ’s view, the Whis tleblower Act claim rele ased
in the Settlement Ag ree ment d i d not have the “adjudicative value” nece ssary to find waiver of

5immunit y under Lawson

. See Texas Dep’ t of Health v. Neal , No. 03-09-00574- CV, 2011 WL

1744966, at *4 (Te x . App.—Austin May 6, 2011, pet. denied) (mem. op.).
I n Neal , this Court applied the Lawson analy sis to deter mine whether a g overnme ntal entity was immune from a suit alleg ing brea ch of a settlement agr ee m en t with Nea l, a former employ ee, who had asser

ted claims of employ

ment discrimination under the Texas Commi ssion on Human Rights Act. See Tex. L ab. Code §§ 21.002(8)( D), 21.051, 21.254 (wa iver of immunit y for claims of employ

ment discrimination). At the time the parties executed the settlement ag ree ment, Neal had not initiated the administrative proce ss that could have led to a waiver of g overn m en t al immunit y and bestowed jurisdiction on the trial court. Neal , 2011 WL 1744966, at *4. We declined
to extend Lawson to a situation wher e the claimant “‘se ttled a claim that, at that point in time, had no adjudicative val u e in our court sy stem.’” Id. (quoting Donna Indep. Sch. Dist. v. Gracia , 286 S.W .3d 392, 395 (Tex. App.—Corpus Christi 2008, n o p et

. ))

. The parties to this appea l join issue on whether Roge rs’s Whis tleblower Act claim had “adjudicative value” at the time the parties executed the Settlement Ag ree ment.

T h e Wh is tl e b lo w e r A c t p r o v id e s a li mi te d w a iv e r o f im mu n it y w h e n a p u

b li c e m p l o y e e alleg es a violation of the Act. Tex. Gov’t Code § 554.035. The elements of a cause of action under the Whis tleblower Act are : (1) a stat e o r l o ca l g overnme ntal entity (2) suspends, discharg es, or discriminates ag ainst (3) a public employ ee (4) who repor ts in g ood faith a violation of the law (5) to

an ap propriate law enfor ceme nt authority

. Id. § 554.002(a) ; Texas Dep’ t of Criminal Just i ce v.

6Terrell , 18 S.W .3d 272, 274 (Tex. App.—Ty ler 2000, pet. denied)

. The parties do not dispute that

Roge rs has stated f

acts that, if true , would establish a violation of sec tion 554.002(a). 1
The sole basis for the County ’s claim that Roge rs’s Whis tleblower Act claim lacke d “adjudicative value” is the fac t that, at the time the parties settled, Roge rs had not filed suit, nor did he subseque ntly

file a suit wit hin the l imitations period set forth in section 554.005. The County 2
contends that compliance with section 554.005 is a “statutory prer equisite” to suit and therefor e a jurisdictional require ment for Roge rs’s suit ag ainst the County , which had to b e acc omplished in order for there to be a waiver of the County ’s immunit y . See Tex. Gov’t Code § 311.034 (“Statutory
prer equisites to suit, including the provision of notice, are jurisdi ct i onal require ments in all suits
ag ainst a g overnme ntal entity .”); Prairie View A & M Un i v. v. Chatha , 381 S.W .3d 500, 514-15 3
Normally we would look to the plaintiff’s pleading s to de termine whether he has met his 1 burden of alleg ing fac ts that aff ir m ati vely demonstrate a trial court’s subject matter jurisdiction. See, e.g. , Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S

. W

. 3d 217, 226 (Tex. 2004). I n Whis tleblower Act claims, the section 554.002(a) elements must be included w ithin the pleading s so that a court can deter

mine whether they sufficie ntly alleg e a violation under the Act to fall within the section 554.035 waiver of immunit y . See S t a te v. Lueck , 290 S.W .3d 876, 882 (Tex. 2009). Roge rs di d not file any court pleading s, but the record includes his aff idavit setting forth the fa cts he contends meet the elements of a claim under the Whis tleblower Act. The County has not arg ued that Roge rs failed to asser t fac ts that would satisfy the elements set forth in section 554.002(a) and we do not express any

opinion in that reg ard. I n its brief, the County conce des t hat, when the parties settled, the l imitations period for 2 filing a Whis tleblower Act claim had not expired. Specifica lly , the County states in its brief: “Tha t [R og ers’ s] time to satisfy the jurisdictional pre- requisites for the underly ing claims had not expired when he enter ed the settlement ag ree ment i s n o t co n s equential.” Footnote three to the County ’s brief also states its posi t i o n t h at the 90-day time period for filing a Whis tleblower Act claim had not expired when the S ett lement Ag ree ment was signe d. This was also counsel for the County ’s position at oral arg ument. The leg islature added this sentenc e to Texas Gover nment Code section 311.034 by 3 amendment in 2005. See Act of May 25, 2005, 79th L eg., R

. S

. , ch. 1150, § 1, 2005 Tex. Gen. L aws 3783. 7(Tex. 2012) (“U nder section 311.034, a statutory require ment comm anding action befor e filing

suit is a st atutory prer equisite. Thus, a statutory prer equisite to suit, whether a dminist rative ( such

as filing a char g e of discrimination) or proce dural (such as timely filing a lawsuit) is jurisdictional when the de fenda

nt is a g overnme ntal entity .”). The supreme court has not expressly held that section 554.005, entitled “L imitation Period,” is a “statutory prer equisite” to a Whis tleblower Act suit. Howeve r, its a naly sis in Chatha
sug g ests that it might rea ch that conclusion, meaning that the failure t o h ave timely filed a Whis tleblower Act claim could deprive the trial court of subject-matter jurisdiction over that claim. Id. Courts of appeals have g ener ally not trea ted the timely filing of a Whistl eblower

Act cla im as

a jurisdictional prer equisite to maintaining the suit, but rathe r have t re at ed untimely filing as an

a f f ir ma ti v e d e f e n s e . S e e M il te e r v
. U n iv e r s it y o f Te x
. a t D a ll a s , N o . 0 5

- 1 3

- 0 1 0 7 6 , 2 0 1 4 WL 5 5 8 1 3 1 5 (Tex. App.—Dallas Nov. 4, 2014, no pet.) (mem. op.) (af firming summary judgme nt on g round that limit ations period for plaintiff’s claim under Whis tleblower Act had run); City of Houston v. Smith , No. 01-13-00241- CV, 2014 WL 768330 (Tex. App.—Houston [1st Dist

. ] Fe b. 25, 2014, no pet.) (mem. op.) (holding that timely initiating any applicable g rieva nce proce dure was jurisdictional
prer eq u i s i t e to bring ing Whis tleblower Act claim but not addre ssing whether limit ations period for filing suit is also a jurisdictional prer equisite); Scott v. Cameron Cnty. , No. 13-05-00117- CV,
2007 WL 1365442 (Tex. App.—Corpus Christi-Edinburg May 10, 2007, no pet.) (mem. o p.) (af firming summary judgme nt on g round that plaintiff in Whis tleblower Act suit failed to timely file petit ion and claim was barre d by limit ations); Dallas Cnty. v. Hughe s , 1 8 9 S

. W

. 3 d 886 (Tex. App.—Dallas 2006, pet. denied) (holding that limit ations period for filing suit in Whis tleblower Act

8was “a defe nsive issue, not a jurisdictional issue”); Dallas Cnty. v. Gonzalez , 183 S.W .3d 94 (Tex.

App.—Dallas 2006, pet. denied) (imply ing that timely filing of Whis tleblower Act not jurisdictional issue by ref

using to permit appellant to raise complaint in reply brief) ; but see County of El Paso v. Latimer , 431 S.W .3d 844 (Tex. App.—El Paso 2014, no pet.) (af firming trial court’s denial of plea
to jurisdiction afte r concluding that fac t issue exis ted with reg ard to whether limit ations period for filing Whis tleblower Act had expired). We will assume, without deciding , that the County is corr ect 4 that a par ty ’s fa ilure to comply

with the limit ations period provide d for in section 554.005 cre ates

a jurisdictional defe ct that deprive s the trial court of subject-matter jurisdiction. See City of DeSoto , 288 S.W .3d at 393.

As previously noted, the parties do not dispute t hat, at the time the Settlement Ag ree ment was executed, the limit ations period for Roge rs’s Whis tleblower Act claim had not expired. Thus, at the time the parties signe d the Settlement Agre em ent, Roge rs had not failed to comply with any jurisdictional prer equisites to suit

. His Whis tleblower Act claim was viable and,
if filed, would have been within the t rial court’s subject-matter jur i s d i ction. Had the deadline for ti me ly f il in g a Wh is tl e b lo w e r A c t c la im p a s s e d b e fo r e th e p a

r ti e s e xe c u te d th e Se tt le me n t A g r e e me n t, the result might be differ ent. But u nder the fac ts of this case , we conclude that, at the time the parties signe d the Settlement Ag ree ment, Roge rs’s Whis tleblower Act claim had “adjudicative

By contra st, since 2005, the courts of appea ls have uniformly held that the require ment that 4 a public employ ee timely initiate an action under the employ er’ s g rieva nce or appea l proce du res rela ting to suspension or termination of employ ment or adver se personne l actions is a jurisdictional prer equisite to bring ing a claim under the Whis tleb l o we r Act. See Tex. Gov’t Code § 554.006 (addr essing use of g rieva

nce or appea l proce dures)

. The parties do not dispute that Roge rs complied with section 554.006. 9value in our court sy stem.” Lawson instructs that when, as here , “a g overnme ntal entity is exposed

to suit because of

a wa iver of immuni ty , it cannot nulli fy that waiver by settling the c laim with an
ag ree ment on which it cannot be sued.” Lawson , 87 S.W .3d at 521. Apply ing Lawson , we hold that the County is not immune from Roge rs’s suit for brea ch of the Settlement Ag ree ment, which settled

v i ab l e cl aims under the Whis tleblower Act. Having so held, we need not addre ss the Count y ’s
arg ument that Roge rs also failed to invoke waiver o f go v er n m ental immunit y under Texas L abor Code chapte r 21 by timely filing a char g e of discrimination. See Tex. L ab. Code § 21.202 (cla imant
must file complain t with TWC or EEOC no later than 180th day afte r date alleg ed unlawful employ ment prac tice occ urre d). We overr ule the County ’s first issue.
I n its second issue, the County addre sses Roge rs’s alter

native ar g ument that, in the
event the trial court lacke d subject-matter jurisdiction, the proper dispositi on wa s to rema nd the

case to the Travis County Civil Service Commi ssion fo r co n s idera tion. Be cause we hold that the trial court had subject-matter jurisdiction over Roge rs’s brea ch of contra ct claim, we do not addre ss this iss ue. See Tex R. App. P . 47.1.

CONCLUSION

Having conclude d that , ap p ly ing the Texas Supreme Court’s analy sis in Lawson , the trial court had subject-matter jurisdiction over Roge rs’s claim that the County brea ched the Settlement Ag ree ment, we aff irm the trial court’s order deny ing the County ’s plea to the jurisdiction.

10__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Pemberton, and F ield Concurring Opinion by J ustice Pemberton
Affir med Filed: Jul y

29, 2015

11