Friday, February 12, 2010

Texas Supreme Court Justices Snub Newest Member in Per Curiam Opinion

Having jurisdictionalized the issue of pleading sufficiency with respect to facts supporting the elements of a Whistleblower claim in State v. Lueck last year -- thus allowing for dismissal by jurisdictional plea prior to discovery, summary judgment motions, not to mention trial on the merits -- the Supremes send back another whistleblower case to the lower court, so as to have their newly crafted precedent applied.

Rookie Supreme Court Justice Eva Guzman gets snubbed by her elder peers. She authored the opinion for the court below that Court reverses today.

Galveston ISD v. Jaco (Tex. 2010),
09-0195 (Tex. Feb. 12, 2010)(per curiam) (whistle-blower case remanded to the court of appeals to determine whether plaintiff has alleged a violation under the Texas Whistleblower Act under the court's holding in Lueck, which made sufficiency of the facts pleaded in support statutory cause of action a jurisdictional issue)
14th district (14-08-00271-CV, 278 SW3d 477, 01-20-09)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Per Curiam Opinion
(Justice Eva M. Guzman not sitting)
(author of the opinion in the court below)


Justice Guzman did not participate in the decision.

Brent Jaco sued the Galveston Independent School District under the Texas Whistleblower Act, alleging that he was demoted from his position as Director of Athletics and Extracurricular Activities for reporting a Ball High School football player’s violations of the University Interscholastic League’s eligibility rules to UIL officials. In a plea to the jurisdiction, the District asserted that Jaco’s claims were barred by governmental immunity and the trial court lacked subject matter jurisdiction because Jaco failed to make a good-faith report of a violation of law to an appropriate law-enforcement authority, as required by the Texas Whistleblower Act. See Tex. Gov’t Code § 554.002(a).

The trial court denied the plea to the jurisdiction and the District appealed. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (permitting appeal from an interlocutory order that denies a plea to the jurisdiction by a governmental unit). The court of appeals affirmed, holding that the elements of section 554.002(a) of the Government Code are not jurisdictional. 278 S.W.3d 477, 482–83 (Tex. App.—Houston [14th Dist.] 2009).

However, in State v. Lueck, 290 S.W.3d 876, 883 (Tex. 2009), we held that “the elements of section 554.002(a) can be considered to determine both jurisdiction and liability.” Accordingly, whether the reporting of a violation of UIL rules and regulations to the UIL is a good-faith report of a violation of law to an appropriate law-enforcement authority is a jurisdictional question.

Therefore, without hearing oral argument, Tex. R. App. P. 59.1, and for the reasons explained in Lueck, we reverse and remand to the court of appeals to determine whether, under the analysis set forth in Lueck, Jaco has alleged a violation under the Whistleblower Act. See Tex. Gov’t Code § 554.002(a).

JUSTICE EVA HAD OPINED OTHERWISE: "Because the District failed to present arguments that, if true, would deprive the trial court of subject-matter jurisdiction, we affirm [ the trial court's denial of the school district's plea to the jurisdiction];" but was not allowed to participate in supreme-level reconsideration of that holding.

Nor was Guzman's court alone in declining to treat the elements as non-jurisdictional, as she explains in the opinion of the 14th court panel, which also included supreme court candidate Jeff Brown:
Although the Fourth,[5] Seventh,[6] and Tenth[7] Courts of Appeals have treated the elements of a whistleblower claim as jurisdictional,[8] these cases predate Park and were decided without discussion of whether the challenged elements concern jurisdiction or relate solely to liability. More recent opinions from the First,[9] Third,[10] Fifth,[11] and Thirteenth[12] Courts of Appeals suggest that the elements of a whistleblower cause of action are not jurisdictional. We agree with the latter opinions in concluding that, under the terms of the Act, waiver of immunity from suit is not dependent upon the merits of the claim. See Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 260 S.W.3d 221, 226 (Tex.App.-Dallas 2008, pet. filed); Tex. Bd. 483 of Pardons & Paroles v. Feinblatt, 82 S.W.3d 513, 520-21 (Tex.App.-Austin 2002, pet. denied) (good faith of report to appropriate agency affects the merits of the case but does not affect jurisdiction); see also Park, 246 S.W.3d at 613 n. 2 (holding that trial court had jurisdiction, although claim failed on the merits).
The Supremes put an end to that jurisprudential debate in 2009.

UT Southwestern Med. Ctr. at Dallas v. Gentillello, M.D., No. 08-0696 (Tex. Dec. 18, 2009)(per curiam) (Whistleblower case remanded in light of decision, holding in State vs. Lueck)
RELATED POST: Whistleblowers Beware: State of Texas and TxDOT vs. Lueck (Tex 2009)
public employment law, whistleblowing, sovereign immunity, statutory waiver of governmental immunity, Texas Whistleblower Act, plea to the jurisdiction, motion to dismiss for lack of subject-matter jurisdiction, pleading sufficiency, jurisdictional allegations

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