Vicki Ward v. Lamar University, Texas State University System and James Simmons ( 2015 )

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
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
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
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 non-
jurisdictional 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
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 non-
jurisdictional 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.
19