Affirmed in Part and Reversed and Remanded in Part and Majority and 

Dissenting Opinions filed May 12, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00097-CV

VICKI WARD, Appellant

V.

LAMAR UNIVERSITY AND TEXAS STATE UNIVERSITY SYSTEM, 

Appellees

On Appeal from the 172nd District Court

Jefferson County, Texas

Trial Court Cause No. E-194,323

MAJORITY OPINION

Appellant Vicki Ward sued appellees Lamar University and the Texas State 

University System for retaliating against her in violation of the Texas 

Whistleblower Act. Appellees filed a plea to the jurisdiction. Subsequently, Ward 

filed an amended petition, adding a claim for a declaratory judgment that appellees 

violated several sections of the Texas Constitution. After a hearing, the trial court 
issued an order dismissing Ward’s claims under the Whistleblower Act based on 

the plea and dismissing her constitutional claims sua sponte. 

In her first issue, Ward argues the trial court erred in dismissing her claims 

under the Whistleblower Act because her amended petition and testimony sufficed 

to defeat a plea to the jurisdiction. We hold the trial court erred in dismissing 

Ward’s whistleblower claims against Lamar University because there is evidence 

that she met the Act’s grievance requirement and that Lamar took an adverse 

personnel action against her. The court properly dismissed Ward’s whistleblower 

claims against the Texas State University System, however, because there is no 

evidence it took such an action. 

In her second issue, Ward asserts the trial court erred by dismissing her 

claims against Lamar and the System under the Declaratory Judgments Act and the 

Texas Constitution because no basis existed for the court’s dismissal. As to 

Lamar, we agree that the trial court erred in dismissing these claims sua sponte. 

With respect to the System, however, we hold that one of these claims was

properly dismissed on the same ground as the whistleblower claims: lack of 

evidence of an adverse personnel action. We affirm in part, reverse in part, and 

remand the case for further proceedings.

BACKGROUND

Appellant Vicki Ward filed a petition alleging that appellees had violated the 

Texas Whistleblower Act by taking adverse personnel action against her after she 

reported in good faith a violation of law to an appropriate law enforcement 

authority. Tex. Gov’t Code Ann. §§ 554.001, et seq. Appellees filed a plea to the 

jurisdiction, seeking dismissal of Ward’s claims. Ward then filed an amended 

petition, adding a second cause of action. Specifically, Ward’s amended petition

2
sought a declaratory judgment that appellees had violated Sections 3, 3a, 8, and 19 

of Article One of the Texas Constitution.

To support her claims, Ward alleged the following facts in her amended 

petition. Ward worked as an Associate Vice President for Finance at Lamar 

University Beaumont. Lamar University is a part of the Texas State University 

System. Ward was responsible for Lamar’s finance operations, including 

procurement. While reviewing payment requests, Ward noticed suspicious 

financial transactions within certain departments of Lamar. Ward reported her 

concerns to Lamar’s Police Chief, Jason Goodrich. Over the next several months, 

an investigation was conducted. The investigation produced a report, co-authored 

by Ward, that documented the transactions. The report was forwarded to James 

Simmons, who was at that time President of Lamar.

1

 Eventually, the report was 

leaked to a television station, and the station began running stories concerning the 

contents of the report.

Ward alleged that after the report was leaked, Simmons “indicated he was

interested in hurting [her] as author of the report more than he was interested in 

correcting the corruption uncovered in the report.” Ward lost the ability to approve 

and review procurement documents. When she asked Simmons about this 

limitation of her duties, he allegedly replied, “Stop looking at departments and 

their spending, [sic] you have caused enough trouble.” Ward also alleged that she 

lost authority over her department. Priscilla Parsons was named Senior Associate 

Vice President of Finance. During a meeting, Simmons allegedly stated that Ward

had no authority in the Finance Department.

1 Simmons is no longer President of Lamar, though he remains employed by Lamar as a 

tenured professor. 

3

 
Ward alleged that she then initiated an appeal to the Chancellor of the 

System as well as to Simmons and Dr. Cruse Melvin, whom Simmons had 

appointed as one of her superiors. No formal grievance or appeal policy was 

identified by any of the parties, either in their pleadings or at the hearing. 

Ward subsequently received a phone call from Fernando Gomez, the Vice 

Chancellor of the System, informing her that her appeal had been received. During 

the conversation, he allegedly told her “she would have to go.” Gomez said Ward 

would be given a severance package to resign. He told her he was an attorney and 

could help “settle things” because Ward was not a “good fit.” He further told her 

that she was an employee at will. Ward asked Gomez if he was threatening to fire 

her. He replied that he was only an attorney and could not fire anyone. He 

repeated his severance package proposal, and Ward again asked Gomez if he was 

threatening to fire her. He said “no” but reiterated that Ward was an employee at 

will. Gomez said, “Remember, I can help you. If not, I will call HR and they will 

send you a letter.” Ward responded that she could not make a decision at that point 

and did not understand why she was being threatened because she was merely

safeguarding Lamar. Gomez ended the conversation by saying, “Well, I will be 

sending you a letter and contacting HR.” He then hung up. It is undisputed that 

Ward was not terminated following this conversation and remains employed by 

Lamar as Associate Vice President for Finance.

During a hearing on appellees’ plea to the jurisdiction, Ward testified that 

her former procurement responsibility had allowed her to identify the malfeasance. 

She also testified that the number of people under her supervision had been

reduced. Ward had overseen between 45 and 50 employees, but after the report 

was filed, approximately 15 people were removed from her supervision. 

Furthermore, Parsons ran meetings outside Ward’s presence, and Ward now had to 

4
report to Parsons, whereas before Ward reported directly to the Vice President for 

Finance. Ward’s job title remained the same, however, and her pay increased from 

$100,000 to $104,000.

Because the plea to the jurisdiction was filed before Ward’s amended 

petition, it did not address Ward’s constitutional claims. At the hearing on the 

plea, appellees’ counsel declared that the court could dismiss the entirety of the 

complaint on its own motion for failing to allege a constitutional violation but 

offered to file another plea addressing Ward’s constitutional claims if the court 

desired. The court did not respond to this offer at the hearing, and no motion or 

plea seeking dismissal of those claims appears in the record. Following the 

hearing, the trial court issued an order dismissing Ward’s claims under the Texas 

Constitution sua sponte and granting appellees’ plea to the jurisdiction as to 

Ward’s claims under the Texas Whistleblower Act. This appeal followed.2

ANALYSIS

I. The trial court erred in dismissing Ward’s whistleblower claims against 

Lamar but properly dismissed those claims against the System.

A. Standard of review

In her first issue, Ward contends the trial court erred in dismissing her 

claims under the Texas Whistleblower Act because she presented both allegations

and evidence sufficient to defeat appellees’ plea to the jurisdiction. If a 

governmental unit has immunity from suit, a trial court lacks subject-matter 

jurisdiction over a suit against the unit. City of Houston v. Ranjel, 407 S.W.3d 

2 Pursuant to its docket-equalization powers, the Supreme Court of Texas transferred this 

appeal from the Ninth Court of Appeals to this Court. See Tex. Gov’t Code Ann. § 73.001 (West 

2013). We must decide this case in accordance with the precedent of the Ninth Court of Appeals 

under principles of stare decisis if our decision otherwise would have been inconsistent with that 

court’s precedent. See Tex. R. App. P. 41.3

5

 
880, 887 (Tex. App.—Houston [14th Dist.] 2013, no pet.). A challenge to a trial 

court’s subject-matter jurisdiction may be asserted by a plea to the jurisdiction. 

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). 

We review a trial court’s decision on a plea to the jurisdiction de novo. State Dep’t 

of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). 

A plaintiff has the burden to allege facts demonstrating jurisdiction, and we 

construe the pleadings liberally in the plaintiff’s favor. Miranda, 133 S.W.3d at 

226. When the governmental unit challenges the existence of jurisdictional facts, 

and the parties submit evidence relevant to the jurisdictional challenge, we must 

consider that evidence when necessary to resolve the jurisdictional issues raised. 

Ranjel, 407 S.W.3d at 887. The court must take as true all evidence favorable to 

the nonmovant and indulge every reasonable inference and resolve any doubts in 

the nonmovant’s favor. Miranda, 133 S.W.3d at 228. If the evidence raises a fact 

question on jurisdiction, the trial court cannot grant the plea, and the issue must be 

resolved by the trier of fact. Id. at 227–28. On the other hand, if the evidence is 

undisputed or fails to raise a fact question, the trial court must rule on the plea as a 

matter of law. Id. at 228. This standard generally mirrors that of a summary 

judgment. Id.

B. Applicable law

Both in the trial court and on appeal, Lamar and the System advance several 

arguments to support the dismissal of Ward’s whistleblower claims.3

 First, they 

contend that Ward failed to initiate a grievance procedure before filing suit as 

3 Because the plea to the jurisdiction did not challenge other elements of a whistleblower 

claim, such as Ward’s status a public employee who in good faith reported a violation of law, the 

status of Lamar and the System as governmental entities, or the existence of a causal link 

between the report of illegal conduct and the identified personnel actions (see City of Fort Worth 

v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000)), we do not address those issues.

6

 
required by the Whistleblower Act. On appeal, they submit an appeals policy and 

ask that we take judicial notice of it. Second, they contend Ward’s identified 

personnel actions are not “materially adverse” as a matter of law. Third, they 

argue Ward’s claims against the System fail because Lamar, not the System, was 

her employer during the relevant time period, and furthermore there is no evidence 

that the System took any adverse personnel action against Ward.

The Texas Whistleblower Act provides that a “state or local governmental 

entity may not suspend or terminate the employment of, or take other adverse 

personnel action against, a public employee who in good faith reports a violation 

of law by the employing governmental entity or another public employee to an 

appropriate law enforcement authority.” Tex. Gov’t Code Ann. § 554.002(a)

(West 2012). A “personnel action” is one that affects a public employee’s 

compensation, promotion, demotion, transfer, work assignment, or performance 

evaluation. Tex. Gov’t Code Ann. § 554.001(3) (West 2012). 

An adverse personnel action is one that “would be likely to dissuade a 

reasonable, similarly situated worker from making a report under the Act.” 

Montgomery County v. Park, 246 S.W.3d 610, 614 (Tex. 2007). The supreme 

court has explained that this objective materiality standard, which is derived from 

federal employment law, allows claims based on retaliatory actions “likely to 

deter” reporting of governmental violations of law while weeding out “petty 

slights” and “minor annoyances.” Id. The standard also bars trivial claims 

resulting from a plaintiff’s unusual subjective feelings, while allowing claims 

arising from the particular circumstances of the challenged action. Id. at 614–15. 

Nonexclusive factors to consider in determining materiality include whether the 

allegedly adverse personnel action negatively affected the employee’s (1) prestige; 

(2) opportunity for advancement; (3) working conditions; (4) pay or income; or (5) 

7
ability to obtain outside employment. Id. at 615. The presence or absence of any 

of these factors is not dispositive. Id. The effects of a challenged action must be 

considered as a whole and in light of all the circumstances, and an act that would 

be immaterial in some situations is material in others. Id.

The Act waives the employing entity’s immunity from an employee’s suit 

alleging a violation of the Act. Tex. Gov’t Code Ann. § 554.0035 (West 2012). 

Before filing suit, however, the Act requires an employee to “initiate action under 

the grievance or appeal procedures of the employing state or local governmental 

entity relating to suspension or termination of employment or adverse personnel 

action.” Tex. Gov’t Code Ann. § 554.006(a) (West 2012). The employee must 

initiate the grievance procedures within 90 days after the alleged violation occurred

or was discovered by the employee through reasonable diligence. Tex. Gov’t Code 

Ann. § 554.006(b) (West 2012). This provision affords the governmental entity an 

opportunity to correct its errors by resolving disputes before facing litigation, as 

the expense of litigation is borne ultimately by the public. Fort Bend Indep. Sch. 

Dist. v. Rivera, 93 S.W.3d 315, 318 (Tex. App.—Houston [14th Dist.] 2002, no 

pet.). 

An employee is not relieved of the requirement to initiate a grievance or 

appeal by the lack of a formal procedure. Berry v. Bd. of Regents of Texas S. 

Univ., 116 S.W.3d 323, 325 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). 

The Act, however, does not dictate what actions are required to ‘initiate’ the 

appeals process. Moore v. Univ. of Houston-Clear Lake, 165 S.W.3d 97, 102 (Tex.

App.—Houston [14th Dist.] 2005, no pet.); see City of Austin v. Ender, 30 S.W.3d 

590, 594 (Tex. App.—Austin 2000, no pet.). The statute also does not require the 

use of particular words, nor require the employee to state that his grievance or 

8
appeal is based on the Whistleblower Act. Moore, 165 S.W.3d at 102; Ender, 30 

S.W.3d at 594. 

In the absence of a standard created by an employee manual detailing the 

required contents of a public employee’s grievance or appeal, the notice given to 

an employer must provide fair notice that the employee desires to appeal the 

employer’s personnel decision and fair notice of the decision made by the 

employer from which the employee desires to appeal. Montgomery County Hosp. 

Dist. v. Smith, 181 S.W.3d 844, 850 (Tex. App.—Beaumont 2005, no pet.). By 

being given such a notice, the employer will be aware that its employee has 

appealed from its disciplinary decision and will know which of its employment 

decisions are being made the subject of its appeal process. Id.

C. There is a fact issue regarding whether Ward initiated a grievance 

as required by the Act.

To support their contention that Ward failed to initiate the required 

grievance or appeal procedures before filing suit, Lamar and the System first 

present a policy that they contend details the steps Ward was required to take in 

order to initiate a grievance. They argue that we may take judicial notice of the 

policy on appeal despite their failure to introduce the policy in the trial court in 

support of their plea to the jurisdiction. By its express terms, however, this alleged 

policy does not apply to administrative staff members such as Ward. Accordingly, 

we need not decide whether this inapplicable policy is a proper subject for judicial 

notice. 

Appellees also point to an affidavit—filed with their plea—of Bertha Fregia, 

Lamar’s Vice President for Human Resources, in which she states that Ward never 

filed a grievance or appeal. Appellees contend this assertion is uncontroverted 

evidence of the existence of a grievance procedure and Ward’s failure to comply. 

9
But Ward’s amended petition, which was filed after appellees’ plea, asserts that

she initiated an appeal to the Chancellor of the System, Simmons, and Dr. Cruse 

Melvin. Furthermore, Ward testified about her appeal and stated that in her appeal 

letter, which is not part of the record, she asked the Chancellor to intervene in 

Simmons’ retaliatory acts. She argues that the complaints in her letter and the 

return phone call from System official Gomez suffice to fulfill the requirement to 

initiate an appeals process before filing suit. 

The record lacks information regarding the relationship between the System

and Lamar, so it is unclear whether addressing an appeal to the Chancellor of the 

System suffices to comply with the requirement that the employee provide notice 

to the employer. Given that Simmons—the subject of Ward’s grievance—was 

president of Lamar, a letter to the System may have been the best informal avenue 

available to Ward to initiate a grievance. See Upton County, Tex. v. Brown, 960 

S.W.2d 808, 813–14 (Tex. App.—El Paso 1997, no pet.) (holding in absence of 

formal procedure a county employee’s phone call to the county commissioner 

sufficed to fulfill Whistleblower Act’s requirement to initiate a grievance 

procedure before filing suit). In any event, appellees did not offer evidence that 

the Chancellor is an improper recipient of a grievance or appeal. Considering 

Ward’s testimony regarding the letter to the System Chancellor and the phone call 

she received from a System official in response, we conclude there is some 

evidence that appellees had fair notice of Ward’s desire to appeal her employer’s 

personnel decision and fair notice of the decision made by the employer from 

which the employee desires to appeal. Smith, 181 S.W.3d at 850.

As noted above, Ward contended that she also directed her appeal to 

Lamar’s then-President Simmons and to Dr. Cruse Melvin, who was operating as 

her direct superior at Lamar. “To the extent the steps in such a [grievance or 

10
appeal] procedure are unclear, as in this case, an employee’s request to ranking 

officials of the employer to invoke the procedure (i.e., whatever it may be) can 

hardly be denied effect.” Berry, 116 S.W.3d at 325. For these reasons, we 

conclude there is a fact issue regarding whether Ward initiated an appeal before 

filing suit, and therefore the plea cannot be sustained based on Ward’s failure to 

satisfy the Act’s grievance requirement.

D. There is a fact issue regarding whether Lamar took materially 

adverse personnel action against Ward, but a lack of evidence 

that the System took such action.

We next consider appellees’ argument that the plea was properly granted 

because the personnel actions alleged by Ward are not materially adverse as a 

matter of law. In City of El Paso v. Parsons, a firefighter was transferred from his 

position at the training academy after he reported the fire chief’s submission of 

false reports concerning employee continuing-education requirements. 353 

S.W.3d 215, 220–21 (Tex. App.—El Paso 2011, no pet.). The firefighter lost his 

responsibility as training chief, and other firefighters were removed from his 

supervision. Id. at 21. He retained his job title, however, and received pay 

increases. Id. The court of appeals held the evidence legally sufficient for a jury 

to conclude the firefighter’s transfer constituted an adverse personnel action. Id. at 

228. 

In her amended petition and testimony, Ward alleged that Lamar removed

her procurement responsibility, 15 people from her supervision, and her authority 

over the department. While her pay and job title remained the same, as Parsons

shows, such factors are not dispositive. See also Harrison v. Corr. Corp. of Am., 

476 F. App’x 40, 45 n.23 (5th Cir. 2012) (collecting Fifth Circuit cases 

acknowledging that lateral reassignment to a position with equal pay could amount 

to a materially adverse action in some circumstances); Kessler v. Westchester 

11
County Dep’t of Soc. Servs., 461 F.3d 199, 202, 210 (7th Cir. 2006) (finding a fact 

issue where a transfer stripped employee of many of his earlier management 

responsibilities, even though the employee was never disciplined, suspended, or 

written up and his salary, benefits, and hours were not decreased). Moreover, she 

no longer reported directly to the Vice President for Finance; instead, she reported 

to the new Senior Associate Vice President, an individual with no previous finance 

experience. Such an action is some evidence that she lost job prestige. See Gray v. 

City of Galveston, No. 14-12-00183-CV, 2013 WL 2247386, at *9 (Tex. App.—

Houston [14th Dist.] May 21, 2013, no pet.) (holding appellant’s reassignment 

from a “command position” to an “investigative position,” where he reported to an 

officer with a lower rank and no longer served as a “direct report” to the Chief of 

Police, supported a conclusion that appellant was transferred to a less prestigious 

position). 

Moreover, Ward testified that she lost her procurement duties, which were 

the duties that had allowed her to discover the transactions she reported.

Removing the very authority that allowed a whistleblower to find wrongdoing in 

the first place is some evidence of an action that would likely dissuade a 

reasonable, similarly situated worker from making a report under the Act. See 

Park, 246 S.W.3d 614–15. Under the circumstances, taking all of Ward’s 

allegations as true, we hold the pleadings and testimony were sufficient to raise a 

fact question as to whether she suffered adverse employment actions at the hands 

of Lamar. Miranda, 133 S.W.3d at 227–28. The trial court thus erred in 

dismissing Ward’s whistleblower claims against Lamar.

With respect to the System, however, the only adverse employment actions

Ward alleges are the implied threats of termination she received during the phone 

call with Gomez. Ward was never terminated, however. Unfulfilled threats to fire 

12
do not constitute actionable adverse employment decisions. Elgaghil v. Tarrant 

County Junior Coll., 45 S.W.3d 133, 143 (Tex. App.—Houston [1st Dist.] 2000, 

pet. denied); see also Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 531 (7th 

Cir. 2003) (“An unfulfilled threat, which results in no material harm, is not 

materially adverse.”).4

 Accordingly, we hold the trial court properly dismissed

Ward’s whistleblower claim against the System. We therefore sustain Ward’s first

issue in part and overrule it in part.

II. The trial court erred in dismissing sua sponte appellant’s claims against 

Lamar under the Declaratory Judgments Act and the Texas 

Constitution, but it properly dismissed one of those claims against the 

System.

In her second issue, Ward contends the trial court erred in dismissing sua 

sponte her claim under the Declaratory Judgments Act and the Texas Constitution 

because no ground existed for dismissal. As noted above, Ward amended her 

petition after Lamar and the System filed their plea to the jurisdiction. Ward’s 

amended petition added allegations that, among other things, both Lamar and the 

System retaliated against her for exercising her right to free speech under the Texas 

Constitution. Invoking the Declaratory Judgments Act, Ward seeks declarations 

including that appellees violated Article I, Section 8 of the Texas Constitution, as 

well as an injunction requiring appellees to restore her former job duties and 

refrain from violating her constitutional rights and retaliating against her. Ward 

also alleges that appellees violated Article I, Sections 3, 3a, and 19 of the Texas 

Constitution, which guarantee equal rights, equality based on sex, and due course 

of law.

4 Because Ward failed to allege an adverse employment action committed by the System, 

we need not consider appellees’ argument that the Texas Whistleblower Act does not apply to 

the System because it was not the employing entity.

13

 
The Texas Constitution’s Bill of Rights includes the following provision:

Every person shall be at liberty to speak, write or publish his opinions 

on any subject, being responsible for the abuse of that privilege; and 

no law shall ever be passed curtailing the liberty of speech or of the 

press. In prosecutions for the publication of papers, investigating the 

conduct of officers, or men in public capacity, or when the matter 

published is proper for public information, the truth thereof may be 

given in evidence. And in all indictments for libels, the jury shall have 

the right to determine the law and the facts, under the direction of the 

court, as in other cases.

Tex. Const. art. I, § 8. Because this provision expressly guarantees an affirmative 

right to speak, the supreme court has held that it provides greater rights than the 

First Amendment to the Constitution of the United States in the context of prior 

restraints on speech, though it has not extended that holding to other contexts. 

Compare Davenport v. Garcia, 834 S.W.2d 4, 8–9 (Tex. 1992), with Tex. Dep’t of 

Transp. v. Barber, 111 S.W.3d 86, 106 (Tex. 2003), and Comm’n for Lawyer 

Discipline v. Benton, 980 S.W.2d 425, 434–35 (Tex. 1998). 

The trial court dismissed Ward’s claims under the Declaratory Judgments 

Act and the Texas Constitution “[o]n its own motion,” stating that Ward’s petition

“fail[s] to articulate facts which, if believed, would support such a claim.” Ward 

argues that no legal grounds existed for the dismissal. We agree as to her claims 

against Lamar but disagree as to her free speech retaliation claim against the 

System.

5

 

5 Our dissenting colleague asserts that Ward’s appeal does not challenge the trial court’s 

dismissal of her claims under Article I, Sections 3, 3a, or 19 of the Texas Constitution, and 

therefore we are reversing on unassigned error. Post, at 3–9. We disagree. In her appellate 

brief, Ward argues that her “constitutional claims were hardly even addressed” by the plea to the 

jurisdiction. After noting that the order dismissing those claims was made on the trial court’s 

own motion, Ward states that “the trial court should not have so moved.” Ward also asserts that 

“[n]o ground existed for dismissal of [the constitutional] claims, and the trial court’s order 

should be reversed.” (emphasis added). Ward thus expressly asked our Court to reverse the 

14

 
Although the trial court stated the ground for its ruling dismissing these 

claims, we may consider in the interest of judicial economy other grounds for 

dismissal that were preserved for review.6

 As discussed in the previous section, 

one of the grounds for dismissal raised in appellees’ plea was that Ward did not 

suffer an adverse employment action. Thus, we consider whether this ground 

could provide a basis for dismissing Ward’s constitutional claims. See City of 

Dallas v. Turley, 316 S.W.3d 762, 774 (Tex. App.—Dallas 2010, pet. denied)

(analyzing whether grounds raised in plea to jurisdiction supported dismissal of 

claims added in amended petition filed after plea).

order dismissing her claims under the Declaratory Judgments Act sua sponte. Similarly, 

although the second issue in Ward’s brief mentions her free speech right, it also asks broadly 

“Was the trial court’s dismissal of her claim erroneous?” Her argument heading regarding this 

issue shows that the claim to which she refers is her “claim for declaratory judgment under the 

Texas Constitution.” The discussion following the heading also refers to her claim under the 

Declaratory Judgments Act, not solely to the subsidiary free-speech claim. 

Texas Rule of Appellate Procedure 38.1(f) provides that “[t]he statement of an issue or 

point will be treated as covering every subsidiary question that is fairly included.” Tex. R. App. 

P. 38.1(f). “[I]t is our practice to construe liberally points of error in order to obtain a just, fair 

and equitable adjudication of the rights of the litigants.” Speck v. First Evangelical Lutheran 

Church of Hous., 235 S.W.3d 811, 819 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing 

Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989)); see also Tex. R. App. P. 38.9 

(“Because briefs are meant to acquaint the court with the issues in a case and to present argument 

that will enable the court to decide the case, substantial compliance with this rule is sufficient 

. . . .”); Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 54 (Tex. 1998) (“Courts should 

liberally construe briefing rules.”); Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex. 1995) 

(same). Our Court routinely follows this practice, and we conclude it is appropriate to do so 

here. E.g., Thu Binh Si Ho v. Saigon Nat. Bank, 438 S.W.3d 871, 873 (Tex. App.—Houston 

[14th Dist.] 2014, no pet.) (“We must construe appellate briefs reasonably, yet liberally, so that 

the right to appellate review is not lost by waiver.”) (citing Perry v. Cohen, 272 S.W.3d 585, 587 

(Tex. 2008) (per curiam)). 

6 Cf. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996) (holding in 

summary judgment context that appellate court “may consider other grounds that the movant 

preserved for review and trial court did not rule on in the interest of judicial economy”); City of 

Mont Belvieu v. Enter. Prods. Operating, LP, 222 S.W.3d 515, 519 (Tex. App.—Houston [14th 

Dist.] 2007, no pet.) (limiting appellate review of order sustaining plea to jurisdiction to matters 

presented to trial court); Britton v. Tex. Dep’t of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.—

Houston [1st Dist.] 2002, no pet.) (looking to summary judgment practice for guidance in 

reviewing pleas to jurisdiction based on multiple grounds).

15

 
In their briefs on appeal, both parties look to federal decisions addressing the 

elements of a First Amendment retaliation claim for guidance on the elements of 

Ward’s free speech retaliation claim under the Texas Constitution. One of those 

federal elements is an adverse employment decision. See, e.g., Juarez v. Aguilar, 

666 F.3d 325, 332 (5th Cir. 2011). Because the parties have not argued that the 

elements of the claim differ under the Texas Constitution, we will analyze Ward’s 

claim using the federal requirement of an adverse employment decision. See Price 

v. Tex. Alcoholic Bev. Comm’n, No. 01-12-1164-CV, 2014 WL 3408696, at *5 

(Tex. App.—Houston [1st Dist.] July 10, 2014, pet. denied) (mem. op.).

As we explained in the previous section, the pleadings and testimony are

sufficient to raise a fact question regarding whether Ward suffered an adverse 

employment decision at the hands of Lamar, but Ward has not alleged any 

actionable adverse employment decision by the System. Accordingly, we affirm 

the trial court’s dismissal of Ward’s declaratory judgment claim against the System 

under Article I, Section 8 of the Texas Constitution. The parties do not address 

whether any ground raised in the plea (including the lack of an adverse 

employment decision) would defeat Ward’s other constitutional claims, and we 

therefore do not consider that issue.

Because appellees’ plea to the jurisdiction does not support dismissal of all 

of Ward’s constitutional claims, we next examine the trial court’s stated nonjurisdictional reason for dismissing those claims. The trial court’s order specifies 

that the dismissal was for failure to plead facts supporting the claims.7

 But there 

7 Our dissenting colleague contends the trial court’s order is “subject to more than one 

interpretation,” and that the court may have dismissed Ward’s constitutional claims based on a 

conclusion that it lacked jurisdiction over the claims. Post, at 3 n.1. We disagree that the order 

may be interpreted in this manner. The trial court stated that the “claims under the Texas 

Constitution contained in the Amended Petition fail to articulate facts which, if believed, would 

support such a claim.” In other words, the trial court concluded that Ward’s petition failed to 

16

 
was no motion or other procedural vehicle available to the trial court authorizing it 

to dismiss these claims, and neither the trial court nor appellees identify any 

authority for dismissing a claim sua sponte on this basis. Cf. Tex. R. Civ. P. 91a.1 

(requiring motion to dismiss cause of action on the grounds that it has no basis in 

law or fact); Porras v. Jefferson, 409 S.W.3d 804, 807 (Tex. App.—Houston [14th 

Dist.] 2013, no pet.) (“Inherent power does not permit a trial court to dismiss a 

party’s claims on the merits without a pending motion.”).

In the absence of such authority, courts should rely on the adversary system

of justice, which depends on the parties to frame the issues for decision and assigns 

to courts the role of neutral arbiter of the matters that the parties present. 

Greenlaw v. United States, 554 U.S. 237, 243 (2008).

8

 One rationale for this

system is that the parties and their counsel usually know far better than the courts 

what is best for them, and thus they are responsible for advancing the facts and 

arguments entitling them to relief. Id. at 244.

9

 Resolving disputes only on grounds 

raised by the parties also serves judicial economy,10 keeps courts within their 

state a claim, which is not the same as a failure of jurisdiction. E.g., Dubai Petrol. Co. v. Kazi, 

12 S.W.3d 71, 75–77 (Tex. 2000). The trial court did not say that the petition failed to allege 

facts demonstrating the court’s subject-matter jurisdiction, nor did it say why any such failure 

could not be remedied by affording Ward an opportunity to amend. Cf. Miranda, 133 S.W.3d at 

226–27. 

8 See also United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring in the 

judgment) (“The rule that points not argued will not be considered is more than just a prudential 

rule of convenience; its observance, at least in the vast majority of cases, distinguishes our 

adversary system from the inquisitorial one”); McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 

(1991) (“What makes a system [of justice] adversarial rather than inquisitorial is . . . the presence 

of a judge who does not (as an inquisitor does) conduct the factual and legal investigation 

himself, but instead decides on the basis of facts and arguments pro and con adduced by the 

parties.”).

9 See also Castro v. United States, 540 U.S. 375, 386 (Scalia, J., concurring in part and 

concurring in judgment); Dennis v. United States, 384 U.S. 855, 875 (1966) (“In our adversary 

system, it is enough for judges to judge. The determination of what may be useful to [a party] 

can properly and effectively be made only by an advocate.”).

10 See Martinez v. State, 91 S.W.3d 331, 336 n.12 (Tex. Crim. App. 2002).

17

 
constitutionally-assigned role as impartial and “neutral arbiter[s],” id. at 243,11 and 

enables courts to make well-informed decisions based on full adversary 

presentation and testing of the arguments on either side of the issue at hand.

The parties have not addressed—either in the trial court or on appeal—

whether Texas courts recognize the causes of action pleaded by Ward, nor have 

they addressed whether appellees are immune from suit on most of those causes of 

action.12 The trial court should have allowed the parties to develop these issues 

through the adversary process; it erred by dismissing Ward’s remaining 

constitutional causes of action sua sponte without a legal basis for doing so.

13 We 

11 See also Greenlaw, 554 U.S. at 244 (“‘[Courts] do not, or should not, sally forth each 

day looking for wrongs to right. We wait for the cases to come to us, and when they do we 

normally decide only questions presented by the parties.’” (quoting United States v. Samuels, 

808 F.2d 1298, 1301 (8th Cir. 1987) (R. Arnold, J., concurring in denial of reh’g en banc)); 

Smith v. Horn, 120 F.3d 400, 409 (3d Cir. 1997) (explaining that when courts decide cases on 

grounds they raise sua sponte, they “come dangerously close to acting as advocates for [a party] 

rather than as impartial magistrates”). The Due Process Clause of the Federal Constitution and 

the Due Course of Law Clause of the Texas Constitution require judges to be neutral and 

detached. U.S. Const. amend. V; Tex. Const. art. I, § 19; Tex. Const. art. I, § 13; see Concrete 

Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 617–18 

(1993); Earley v. State, 855 S.W.2d 260, 262 (Tex. App.—Corpus Christi 1993, no pet.). 

12 We are aware that courts have allowed public employees to sue their employers for 

damages under 42 U.S.C. § 1983 when the employees suffer adverse employment consequences 

for exercising their First Amendment right to speak on matters of public concern. E.g., Connick 

v. Myers, 461 U.S. 138 (1983); Baker v. Gregg County, 33 S.W.3d 72, 79 (Tex. App.—

Texarkana 2000, pet. dism’d). But Ward has not sued under section 1983, Texas has no 

comparable state statute, and there is no implied private right of action for damages arising under 

the free speech provision of the Texas Constitution. See City of Beaumont v. Bouillion, 896 

S.W.2d 143, 147 (Tex. 1995). The trial court and the parties have not addressed whether 

injunctive relief is available in this circumstance to remedy violations of the Texas Constitution,

cf. City of Elsa v. M.A.L., 226 S.W.3d 390, 392 (Tex. 2007) (per curiam), or whether appellees’ 

sovereign immunity is waived in this circumstance under the Declaratory Judgments Act. Cf. 

City of El Paso v. Heinrich, 284 S.W.3d 366, 372–73 (Tex. 2009) (“[Under the Declaratory 

Judgments Act], the governmental entities themselves—as opposed to their officers in their 

official capacity—remain immune from suit.”). We therefore do not decide those questions here.

13 Our dissenting colleague contends that because the parties have not briefed on appeal 

the merits of whether Ward has stated declaratory judgment claims under Article I, Sections 3, 

3a, and 19, it is unfair and unwise for us to address those claims. Post, at 4–9 & n.11. But we 

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sustain Ward’s second issue in part and, with one exception, we reverse the trial 

court’s dismissal of her claims against Lamar and the System under the 

Declaratory Judgments Act and the Texas Constitution. We affirm the dismissal of 

Ward’s free speech retaliation claim against the System under the Declaratory 

Judgments Act and Article I, Section 8 of the Texas Constitution.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s dismissal of Ward’s 

whistleblower claims and her free speech retaliation claim against the Texas State 

University System, reverse the trial court’s dismissal of Ward’s whistleblower 

claims against Lamar University and the trial court’s sua sponte dismissal of 

Ward’s remaining constitutional claims against both Lamar and the System, and 

remand the case to the trial court for further proceedings consistent with this 

opinion.

/s/ J. Brett Busby

Justice

Panel consists of Chief Justice Frost and Justices Christopher and Busby (Frost, 

C.J., dissenting).

are not addressing the merits of those claims and holding that Ward pled sufficient facts to 

support them. Instead, we are reversing the trial court’s decision to dismiss those claims without 

allowing the parties to take the lead in addressing them in the trial court. As discussed in 

footnote 5 above, Ward’s brief gives fair notice that she is complaining of the latter error.

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