the University of Texas Medical Branch at Galveston D/B/A John Sealy Hospital ("UTMB") v. Kevin Barrett, M.D. ( 2002 )

Reversed and Rendered and Majority and Dissenting Opinions filed December 12, 2002

  

Reversed and Rendered and Majority and Dissenting Opinions filed December 12, 2002.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-00529-CV

____________

THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON

d/b/a JOHN SEALY HOSPITAL (AUTMB@), Appellant

V.

KEVIN BARRETT, M.D., Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 95CV0834

M A J O R I T Y  O P I N I O N

This case involves the Whistleblower Act, in which the Legislature has waived immunity from suit when a state or local entity retaliates against an employee who reports a violation of the law. Tex. Gov=t Code Ann. '' 554.002 and 554.0035 (Vernon Supp. 2002).  The question presented here is whether failure to comply with the steps mandated by the Legislature in Texas Government Code section 554.006 deprives a trial court of jurisdiction to hear the employee=s suit.  We hold that it does.

I.  FACTUAL AND PROCEDURAL BACKGROUND

This is the second appeal concerning a statutory whistleblower claim filed by appellee Kevin Barrett, M.D. against the University of Texas Medical Branch at Galveston (UTMB) and two physicians.  In the first appeal, Barrett challenged the various grounds on which summary judgment was sought by UTMB and the physicians, one of which alleged Barrett failed to initiate administrative remedies under the Whistleblower Act.  We held Barrett created a material question of fact as to whether he initiated action under his employer=s appeals procedure, reversed the trial court=s judgment as to Barrett=s whistleblower claim, and  remanded same for trial on the merits.  See Tex. Gov=t Code Ann. ' 554.006(a) (Vernon Supp. 2002); Barrett v. The University of Texas Medical Branch at Galveston, 1999 WL 233341 (Tex. App.CHouston [14th Dist.] 1999, pet. denied).  On remand, UTMB filed a plea to the jurisdiction, arguing the district court lacked subject-matter jurisdiction because Barrett failed to wait sixty days after filing his grievance before filing suit.  See Tex. Gov=t Code Ann. ' 554.006(d) (Vernon Supp. 2002).  The district court denied the plea, and UTMB filed this interlocutory appeal.  We reverse and render judgment dismissing the case for lack of subject-matter jurisdiction.

II.  DISCUSSION

A.        Standard of Review

A party may contest a trial court=s subject-matter jurisdiction by filing a plea to the jurisdiction.  Texas Dep=t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).  The party suing a governmental agency must affirmatively establish in its pleadings the State=s consent to suit, Awhich may be alleged either by reference to a statute or to express legislative permission.@ Id. (citing Missouri Pac. R.R. Co. v. Brownsville Navigation, 453 S.W.2d 812, 814 (Tex. 1970)).  The trial court must look solely to the pleadings in determining whether it has subject-matter jurisdiction over the case challenged by a plea to the jurisdiction.  Amador v. San Antonio State Hosp., 993 S.W.2d 253, 254 (Tex. App.CSan Antonio 1999, pet. denied).  On appeal, the allegations set forth in the pleadings are taken as true and are construed in favor of the pleader.  Id. Subject-matter jurisdiction is a question of law that is reviewed de novo.  Id. at 255.  Therefore, we review the trial court=s denial of UTMB=s plea to the jurisdiction de novo.

B.        Sovereign Immunity and Subject-Matter Jurisdiction

Sovereign immunity encompasses two principles: immunity from suit and immunity from liability.  Travis County v. Pelzel & Assoc., 77 S.W.3d 246, 248 (Tex. 2002) (citing Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex. 1997)).  Immunity from liability protects a governmental entity from judgment even if the Legislature has consented to the suit, and does not affect subject-matter jurisdiction.  Id. (citing Jones, 8 S.W.3d at 638).  Immunity from suit, on the other hand, deprives a trial court of subject-matter jurisdiction, and is properly asserted in a plea to the jurisdiction.  Id; see also Texas Nat=l Resource Conservation Comm=n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002) (citing. Jones, 8 S.W.3d at 638, for the proposition that immunity from suit defeats a trial court=s subject-matter jurisdiction unless the state expressly consents to the suit); Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 295 (Tex. 2001) (per curiam) (holding trial court lacked jurisdiction over cause of action against school district for retaliatory discharge where plaintiff failed to exhaust her administrative remedies). 

Section 554.0035 of the Whistleblower Act provides a waiver of sovereign immunity for suits seeking redress for retaliatory measures taken by a governmental entity Ato the extent of liability for the relief allowed under this chapter.@ Pelzel, 77 S.W.3d at 249.  (quoting Tex. Gov=t Code Ann. ' 554.0035).  Section 554.006(a) requires an aggrieved employee to initiate action under the grievance or appeal procedures of the employing state or local governmental entity. Tex. Gov=t Code Ann. ' 554.006(a) (Vernon Supp. 2002).  If a final decision is not rendered before the sixty-first day after the procedures were initiated, the employee can choose to either exhaust the applicable procedures or terminate the applicable procedures and file suit under the Act.  Id. ' 554.006(d).  Only after a public employee follows the procedures set forth in this section is immunity from suit waived and subject-matter jurisdiction conferred on a trial court.  Univ. of Houston Sys. v. Lubertino, No. 01-01-00919-CV, 2002 WL 31521209, at *2B*4 (Tex.App.CHouston [1st Dist.] Nov. 14, 2002, no pet. h.) (holding failure to comply with ' 554.006(d) deprives trial court of subject-matter jurisdiction); City of San Antonio v. Marin, 19 S.W.3d 438, 442 (Tex. App.CSan Antonio 2000, no pet.) (same); Castleberry Indep. Sch. Dist. v. Doe, 35 S.W.3d 777, 781 (Tex. App.CFort Worth 2001, pet. dism=d w.o.j.) (stating proper procedure prior to filing suit under Whistleblower Act is to initiate grievance procedures, wait 60 days, and suit may be filed by employee only after allowing employer this time to render final decision).

This court has previously recognized that the administrative prerequisites in section 554.006 are jurisdictional.  See University of Houston v. Elthon, 9 S.W.3d 351, 355B56 (Tex. App.CHouston [14th Dist.] 1999, pet. dism=d w.o.j.) (discussing whether the requirements of section 554.006 were satisfied in order to confer jurisdiction on the trial court).  Various other intermediate appellate courts have also recognized that the administrative prerequisites in the Whistleblower Act are jurisdictional. The Austin Court of Appeals recently held that section 554.006 is a statutory prerequisite to filing suit, and the plaintiff satisfied the jurisdictional requirements by submitting a grievance within 90 days of his constructive discharge.  See Texas Bd. Of Pardons and Paroles v. Feinblatt, 82 S.W.3d 513, 522 (Tex.App.CAustin 2002, no pet. h.).  The San Antonio Court of Appeals held, where appellees had filed their suit two days after initiating grievance procedures, the trial court was deprived of jurisdiction because appellees failed to satisfy the mandatory statutory prerequisites to filing suit under the Act.  See Marin, 19 S.W.3d at 442.  The Austin Court of Appeals earlier reached the same conclusion.  See Gregg County v. Farrar, 933 S.W.2d 769, 777 (Tex. App.CAustin 1996, no writ) (holding failure to comply with statutory requirements deprives the trial court of jurisdiction).  Following the Farrar analysis, the First Court of Appeals also has held that when a party sues under the Whistleblower Act, the party must comply with administrative prerequisites, which are jurisdictional.  See Univ. of Texas Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 774 (Tex. App.CHouston [1st Dist.] 1999, pet. dism=d w.o.j.) (citing Farrar, 933 S.W.2d at777).  In reaching its conclusion, the Hohman court relied on the principle that requires a party suing on a statutory cause of action to comply with all administrative prerequisites which are jurisdictional.  Id. (citing Farrar, 933 S.W.2d at 777). Consistent with Hohman, the First Court of Appeals recently held the State=s sovereign immunity is not waived and suit may not be filed unless the statutory prerequisites for filing suit in the Whistleblower Act have been met.  See Lubertino, 2002 WL 31521209 at *2B*4; Texas S. Univ. v. Carter, 84 S.W.3d 787, 792 (Tex. App.CHouston [1st Dist.] 2002, no pet. h.). 

Section 554.006 of the Whistleblower Act is an unambiguous statute requiring a public employee to follow certain steps in order to invoke the waiver of immunity provided for in the Act and enable the employee to bring a suit^[1] against an employer.  Tex. Gov=t Code Ann. ' 554.006 (Vernon Supp. 2002).  An employee is required to initiate the applicable grievance procedure and wait sixty days for an employer to reach a final decision.  Tex. Gov=t Code Ann. ' 554.006.  After sixty days have passed, if a final decision is not rendered, the Act permits an employee to terminate the grievance procedures and file suit for the prescribed relief.  Id. We hold these statutorily prescribed procedures are jurisdictional.  See Lubertino, 2002 WL 31521209 at *2B*4; Carter, 87 S.W.3d at 792; Feinblatt, 82 S.W.3d at 522; Marin, 19 S.W.3d at 442; Hohman, 6 S.W.3d at 774; Farrar, 933 S.W.2d at 777. To hold otherwise would have significant and adverse consequences: an aggrieved employee could initiate the grievance procedures, wait an hour or a day, and then file suit.  Marin, 19 S.W.3d at 441.  Interpretation of the Act in this way would render the sixty-one day requirement in section 554.006(d) meaningless, contravening the Code Construction Act=s presumption that in enacting a statute, it is presumed that the entire statute is intended to be effective.  Tex. Gov=t Code Ann. ' 311.021 (Vernon 1998).  Moreover, the Legislature intended that the governmental entity be afforded the opportunity to correct its own errors by resolving disputes before being subjected to the expense and effort of litigation.  Farrar, 933 S.W.2d at 775.

C.        1995 Amendment of the Whistleblower Act

Section 554.006 of the Whistleblower Act was amended in 1995 to read:

(a)  A public employee must initiate action under the grievance or appeal procedures of the employing state or local governmental entity relating to the suspension or termination of employment or adverse personnel action before suing under this chapter. . . .

(d) If a final decision is not rendered before the 61st day after the date procedures are initiated under Subsection (a), the employee may elect to:

(1) exhaust the applicable procedures under Subsection (a) . . .; or

(2) terminate procedures under Subsection (a), in which event the employee must sue within the time remaining under Section 554.005 to obtain relief under this chapter.

Tex. Gov=t Code Ann. ' 554.006 (Vernon Supp. 2002) (emphasis added).

Prior to its amendment in 1995, subsection (a) read: AAn employee of a local government must exhaust that government=s grievance or appeal procedures relating to suspension or termination of employment or unlawful discrimination before suing under this chapter.@ Act of May 22, 1993, 73rd Leg., R.S. ch. 268, ' 1, 1993 Tex. Gen. Laws 583, 610 (amended 1995) (emphasis added).  The 1995 amendment to subsection (d) increased the number of days an employee had to wait for a final decision in the grievance procedures from thirty to sixty, but left the remainder of the statute unchanged.  See Act of May 25, 1995, 74th Leg. R.S. ch. 721 ' 6 1995 Tex. Gen. Laws 3812, 3813B14. Both before and after the 1995 amendments to the act, an employee seeking to file suit must follow the same procedures: after waiting the specified number of days (formerly thirty, now sixty), the employee may either continue to pursue the applicable grievance procedures until exhaustion, or terminate the procedures and file suit.  See Act of May 22, 1993, 73rd Leg., R.S. ch. 268, ' 1, 1993 Tex. Gen. Laws 583, 610 (amended 1995); Tex. Gov=t Code Ann. ' 554.006.  No substantive change in procedures was effected by the Legislature=s 1995 amendment.  See Marin, 19 S.W.3d at 441.  Although the word Aexhaust@ was used in the prior version, exhausting the applicable procedures was never the only way to comply with the requirements set forth in the Act.  See Act of May 22, 1993, 73rd Leg., R.S. ch. 268, ' 1, 1993 Tex. Gen. Laws 583, 610 (amended 1995).  As stated above, aggrieved public employees always had the option of terminating grievance procedures before exhaustion if a final decision had not been rendered within the number of days specified.  See Marin, 19 S.W.3d at 440B41.

We agree with the analysis and holding of the Fourth Court of Appeals in Marin, that the Legislature=s substitution of the word Ainitiate@ for Aexhaust@ had no practical effect on the statute.  Id.  Thus, just as compliance with the statutory requirements set forth in section 554.006 was jurisdictional in nature prior to the 1995 amendment, compliance remains jurisdictional in nature after the 1995 amendment.  See, e.g.,  Marin, 19 S.W.3d at 441 (holding that when the entire statute is viewed in context, the 1995 amendment had no effect on the implementation of the statute); see also Elthon, 9 S.W.3d at 355B56 (treating Whistleblower Act prerequisites as jurisdictional); Hohman, 6 S.W.3d at 774 (stating the Whistleblower Act prerequisites are jurisdictional); Harlandale Indep. School Dist. v. Hernandez, 994 S.W.2d 257, 258 n.1 (Tex. App.CHouston [1st Dist.] 1999, no pet.) (stating AThis change did not alter the jurisdictional nature of the administrative process.@); Farrarr, 933 S.W.2d at 777 (holding that failure to comply with the Whistleblower Act prerequisites deprives a trial court of jurisdiction).

Texas courts continue to affirm the jurisdictional nature of the provisions of the  Whistleblower Act.  Addressing this issue, the First Court of Appeals in Carter, 84 S.W.3d at 789, considered whether Texas Southern University could pursue an interlocutory appeal from a denial of its plea to the jurisdiction, a question which first required the court to decide whether the provisions in section 554.006(b) C requiring invocation of the applicable grievance or appeal procedures within 90 days of the alleged violation C were jurisdictional.  The Carter court concluded the statutory prerequisite requiring the plaintiff in a Whistleblower Act action to timely initiate a grievance is a jurisdictional requirement.  Id at 792.  Indeed, the court concluded all of the prerequisites of the Act are jurisdictional:

In sum, the Whistleblower Act creates the cause of action sued upon, provides procedural prerequisites for filing suit, and then waives sovereign immunity from suit once those requirements have been met.  The trial court has no subject matter jurisdiction over the suit unless the State=s sovereign immunity from suit is waived, and the State=s sovereign immunity from suit is not waived unless the statutory prerequisites for filing suit have been met.

Id.  (statutory citations omitted) (emphasis added).

The First Court of Appeals continues to recognize the jurisdictional nature of the statutory prerequisites in the Whistleblower Act.  See Lubertino, WL 31521209 at *2 (stating because limitations provisions of the Act are jurisdictional, plaintiffs must adhere to them to confer jurisdiction on the trial court).

We agree the statutory prerequisites for filing suit under the Whistleblower Act are jurisdictional, and failure to satisfy those requirements deprives the trial court of jurisdiction over the suit.

D.        Waiver of Immunity vs. Presentment

The dissent, citing Essenburg, disagrees with this jurisdictional analysis of the Whistleblower Act and asserts that the Act is merely a presentment statute, not an exhaustion of administrative remedies statute.  See Essenburg v. Dallas County, 988 S.W.2d 188 (Tex. 1998). In Essenburg, the Texas Supreme Court held that section 81.041 of the Texas Local Government Code (the predecessor to section 89.004) contains a presentment requirement, not an exhaustion requirement which is jurisdictional.  Id. at 189.  Thus, as a presentment, or notice, statute section 89.004 is not jurisdictional.  Id.  Importantly, however, the Essenburg court observed A[t]he presentment requirement . . . is not analogous to the exhaustion of administrative remedies requirement.@ Id.  Indeed, because the Essenburg court adverted favorably to the holding in Farrar, that the Whistleblower Act requires plaintiffs to exhaust all remedies before suing, we conclude the presentment/exhaustion question regarding that Act has been resolved adversely to the dissent=s position.

The unambiguous language of the Whistleblower Act specifically provides that a public employee alleging a violation of the statute may sue the employing state or local governmental entity for relief after they have exhausted the applicable grievance procedures, or after the sixtieth day if a final decision is not rendered by the governmental agency.  Tex. Gov=t Code Ann. '' 554.0035, 554.006 (Vernon 2002) (emphasis added).  The Act states that sovereign immunity is waived and abolished to the extent of liability for the relief allowed for a violation of the Act. Id. 554.0035.  In contrast, the statute examined in Essenburg did not clearly and unambiguously waive immunity from suit for a claim against a county.  See Pelzel, 77 S.W.3d at 249.  A claimant under section 89.004 has no statutory right to bring a suit for a money claim against a county.  Id. at 251.  Thus, because questions of jurisdiction are not relevant to an analysis of section 89.004, no issue of exhaustion is raised and the inquiry is restricted to presentment questions only.  In sum, Essenburg and Pelzel address a statute allowing presentment only, and not suits against governmental entities, while sections 554.0035 and 554.006 of the Government Code permit litigation.  The dissent=s attempted application of the presentment classification to the Whistleblower Act is baseless.

E.        Waiver of Immunity vs. Constitutional Jurisdiction

The dissent also cites Dubai for the proposition that failure to comply with statutory prerequisites does not affect a district court=s subject-matter jurisdiction over a case.  See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000). The dissent=s reliance on this case is misplaced.  Dubai, unlike this case, did not involve a suit against the State and therefore, did not involve principles of sovereign immunity.  Indeed, the suit arose from Kazi=s death, and his survivors brought a wrongful death action in a Harris County district court.  Id. at 73. Although the suit was brought under section 71.031 of the Texas Civil Practice and Remedies Code, the Dubai court held the trial court had jurisdiction because a claim for wrongful death was within its jurisdiction under the Texas Constitution, not because the plaintiffs satisfied all the grounds listed in section 71.031(a).  Id. at 76.  Therein lies the key distinction between this case and Dubai. Texas district courts have no Aconstitutional jurisdiction@ over a suit against the State, or a governmental entity, absent a waiver of sovereign immunity.  See Fed. Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex. 1997) (recognizing sovereign immunity, unless waived, protects the State of Texas, its agencies and its officials from lawsuits for damages, absent legislative consent to sue the State). 

Unlike the plaintiffs in Dubai, who had a threshold right under the Texas Constitution to bring their suit in a Harris County district court, Dr. Barrett=s only vehicle to bring suit against UTMB was the Whistleblower Act.  That Act waives sovereign immunity from suit Ato the extent of liability for the relief allowed under this chapter for a violation of this chapter.@ Tex. Gov=t Code Ann. ' 554.0035 (Vernon Supp. 2002).  If the plaintiff has no right to relief under the statute, because the statutory prerequisites have not been met, then there is no waiver of immunity by the State, and the trial court has no jurisdiction.  Carter, 84 S.W.3d at 792.  No issue has been presented in this case contending the district court has jurisdiction over Dr. Barrett=s claim pursuant to the Texas Constitution.

As stated in Pelzel, immunity from suit deprives a trial court of subject-matter jurisdiction, and is properly asserted in a plea to the jurisdiction.  Pelzel, 77 S.W.3d at 248.  In post-Dubai cases involving sovereign immunity, the Texas Supreme Court continues to hold that plaintiffs must comply with statutory prerequisites in order to confer jurisdiction on the trial court.  See IT-Davy, 74 S.W.2d at 855 (citing Jones, 8 S.W.3d at 638); Wilmer-Hutchins, 51 S.W.3d at 293B94.  Simply put, the Texas Supreme Court has not applied or even adverted to Dubai in later cases involving sovereign immunity.  See Wal-Mart Stores, Inc. v. Canchola, 64 S.W.3d 524, 533B35 (Tex. App.CCorpus Christi 2001, no pet.) (noting the Wilmer-Hutchins court=s failure to discuss Dubai); King v. Texas Dep=t of Human Services, 28 S.W.3d 27, 30B31 (Tex. App.CAustin 2000, no pet.) (declining to address appellant=s argument that Dubai applies to suits involving sovereign immunity).  Therefore, there is no authority for integration of the Dubai analysis into Whistleblower Act suits, and we will not apply Dubai here. 

III.  CONCLUSION

In sum, we interpret the Whistleblower Act in accordance with the plain meaning of the words chosen by the Legislature.  It is cardinal law in Texas that a court construes a statute, first by looking to the plain and common meaning of the statute=s words.  Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864, 865 (Tex. 1999).  If the meaning of the statutory language is unambiguous, we adopt, with few exceptions, the interpretation supported by the plain meaning of the provision=s words and terms.  Id.  We hold compliance with section 554.006 of the Whistleblower Act is necessary to confer jurisdiction on the trial court.  In accordance with the plain meaning of the words in section 554.006 of the Whistleblower Act, a claimant may file suit without exhausting his administrative remedies only if a final decision is not rendered before the sixty-first day after the date the procedures were initiated under section 554.006, subsection (a).  Filing suit before expiration of the sixty-day period, as occurred here, deprives the trial court of jurisdiction.^[2]

Accordingly, we reverse the trial court=s judgment, and render judgment granting UTMB=s plea to the jurisdiction.  See Univ. of Texas Med. Branch v. Mullins, 57 S.W.3d 653, 657 (Tex. App.CHouston [14th Dist.] 2001, no pet.).

/s/        John S. Anderson

Justice

Judgment rendered and Majority and Dissenting Opinions filed December 12, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost, (Brister, C.J., dissenting).

Publish C Tex. R. App. P. 47.3(b).

Reversed and Rendered and Majority and Dissenting Opinions filed December 12, 2002.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-00529-CV

____________

THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,

d/b/a JOHN SEALY HOSPITAL (AUTMB@) Appellant

V.

KEVIN BARRETT, M.D., Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 95CV0834

D I S S E N T I N G   O P I N I O N

Section 554.006 of the Whistleblower Act required Dr. Barrett to initiate a grievance before filing suit. He did.  But because he filed suit 27 days later rather than 60, the Court holds we are ousted from subject-matter jurisdiction.  For several reasons, I disagree.

First, the waiver of sovereign immunity in the Whistleblower Act is not conditional. The Legislature waived immunity from suit and liability for any and all violations of the chapter:

A public employee who alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this chapter.  Sovereign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter.

Tex. Gov=t Code ' 554.0035.  Obviously, immunity is not waived A[o]nly after a public employee follows the procedures set forth@ in the Act.  Ante at ___.  Instead, sovereign immunity is waived if an employee alleges a violation and liability under the chapter.  Nothing in the section conditions waiver of immunity upon compliance with grievance procedures or anything else.

Second, inserting conditions in this unconditional waiver of sovereign immunity is at odds with our treatment of section 554.005 of the Act.  That section requires claimants to initiate a grievance and sue within ninety days after the alleged violation occurred or was discovered. If they wait too long, they may lose the case, but we do not lose subject-matter jurisdiction.  See University of Houston v. Elthon, 9 S.W.3d 351, 356 (Tex. App.CHouston [14th Dist.] 1999, pet. dism=d w.o.j.) (holding failure to file suit within ninety days is affirmative defense raised by summary judgment rather than jurisdictional matter raised by plea to the jurisdiction).¹

Third, in Essenburg v. Dallas County, the Texas Supreme Court drew a distinction between Aexhaustion@ and Apresentment@ statutes:

$ statutes requiring exhaustion of administrative remedies confer primary jurisdiction upon an administrative agency; failure to comply requires dismissal for want of jurisdiction.

$ statutes requiring presentment give a governmental defendant notice and an opportunity to settle claims without litigation; failure to comply requires only an abatement.

988 S.W.2d 188, 189 (Tex. 1998) (per curiam).  As the Whistleblower Act requires employees to initiate but not exhaust grievance procedures, it can only fall in Essenburg=s presentment category.  Thus, when Dr. Barrett jumped the gun, abatement was the proper remedy to allow UTMB to investigate and try to settle the claim.  As six years have passed since he filed suit, UTMB has had more than a fair opportunity to do so.  Neither dismissal nor abatement is warranted.  Id.² 

Fourth, this old-fashioned, no-jurisdiction approach to statutory construction has been rejected by the Texas Supreme Court.  Traditionally, compliance with prerequisites to statutory claims (like this one) was not just mandatory but jurisdictionalCfailure to comply meant the judgment was void and could be collaterally attacked years later.  But in Dubai Petroleum Co. v. Kazi, the Texas Supreme Court abandoned this approach, holding that compliance with statutory prerequisites may affect recovery, but not the court=s subject-matter jurisdiction.  12 S.W.3d 71, 76 (Tex. 2000).³ 

The Court is correct that several intermediate appellate courts (including ours)  have held that an employee=s failure to initiate a grievance is jurisdictional.⁴  The Act does say that an employee must initiate a grievance before filing suit:

A public employee must 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 before suing under this chapter. 

Tex. Gov=t Code ' 554.006(a).  But this section does not say what the consequences are if an employee fails to do so. For example, the similar requirement in the DTPA for written notice 60 days before filing suit is also mandatory, but the remedy for failure is a 60-day abatement, not dismissal.  See Tex. Civ. Prac. & Rem. Code ' 17.505; Hines v. Hash, 843 S.W.2d 464, 469 (Tex. 1992).  No court has explained why the grievance requirement in section 554.006 amends the unconditional waiver of immunity in section 554.0035, when the Act contains nothing to suggest they are related. 

But even if our sister courts are correct that initiating a grievance is jurisdictional, that is no support for this court to follow the error of City of  San Antonio v. Marin, holding that failure to wait 60 days after initiating a grievance is also jurisdictional.  19 S.W.3d 438, 441 (Tex. App.CSan Antonio 2000, no pet.).⁵  The 60-day provision is stated in terms that are elective, not mandatory:

If a final decision is not rendered before the 61st day after the date procedures are initiated under Subsection (a), the employee may elect to:  (1) exhaust the applicable procedures under Subsection (a), in which event the employee must sue not later than the 30th day after the date those procedures are exhausted to obtain relief under this chapter; or (2) terminate procedures under Subsection (a), in which event the employee must sue within the time remaining under Section 554.005 to obtain relief under this chapter.

Tex. Gov=t Code ' 554.006(d) (emphasis added).  Like section 554.006(a), there is nothing here to suggest sovereign immunity is waived only after the stated deadline, or that subject-matter jurisdiction suddenly pops into existence at that point.  But unlike section 554.006(a), this section does not even state that an employee Amust@ wait until the deadline passes to sue.⁶

The Court professes to Ainterpret the act according to the plain meaning of the statute.@  But at the same time, it finds:

$ the 1995 amendment changing Aexhaust@ to Ainitiate@ had Ano practical effect@;

$ the waiver of immunity is conditional, even though it does not say so; and

$ the 60-day waiting period is mandatory, even though it says Amay,@ not Amust.@

If this is a Aplain@ reading, I need new glasses.      

The Whistleblower Act contains some very close timetables, and the interaction among them is complicated.  I do not believe the Legislature intended to make this a game.  The statutory deadlines have their purposes, but those do not include tossing whistleblowers out of court for filing too early.  Thus, I would hold that compliance is not jurisdictional, and affirm the trial court=s order.

/s/        Scott Brister

Chief Justice

Judgment rendered and Majority and Dissenting Opinions filed December 12, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.

Publish C Tex. R. App. P. 47.3(b).

---

^[1]  Under section 554.003, a public employee is entitled to sue for, inter alia, injunctive relief, actual damages, court costs, and reasonable attorney fees arising from the termination or suspension of employment or an adverse personnel action in violation of section 554.002. 

^[2]  In parts II.D and E we address the inapplicability of the Texas Supreme Court cases cited by the dissent.  To the extent the dissent relies on precedent from courts other than the Texas Supreme Court or the United States Supreme Court, this Court is not obligated to follow those decisions.  See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993).

¹  Accord, Texas Dept. of Mental Health and Mental Retardation v. Olofsson, 59 S.W.3d 831, 833 (Tex.  App.CAustin 2001, no pet. h.); Castleberry Independent School Dist. v. Doe, 35 S.W.3d 777, 782 (Tex.  App.CFort Worth 2001, pet. dism=d w.o.j.); contra, Tex.  S. Univ.  v.  Carter, 84 S.W.3d 787, 791-92 (Tex.  App.CHouston [1st Dist.] 2002, no pet. h.).

²  The Court dismisses Essenburg because the presentment provision in that case did not waive immunity; but as discussed below, neither does section 554.006.  Nor is the Court correct that on this point Essenburg Aadverted favorably@ to  Gregg County v. Farrar, 933 S.W.2d 769, 777 (Tex. App.CAustin 1996, writ denied) (finding section 554.006 jurisdictional); the Essenburg court cited to Farrar only for the proposition that section 89.041 of the Texas Local Government Code is a notice statute.  Essenburg, 988 S.W.2d at 188-89.

³  The Court says we can ignore Kazi because the supreme court Acontinues to hold that plaintiffs must comply with statutory prerequisites in order to confer jurisdiction on the trial court.@  Ante at __.  The cases the Court cites for support concern:

$ contract claims against the government (in which sovereign immunity exists regardless of exhaustion or presentment), see Travis County v. Pelzel & Assoc., 77 S.W.3d 246 (Tex. 2002); Texas Nat=l Resource Conservation Comm=n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002); and

$ an exhaustion statute, see Wilmer-Hutchins Indep. School Dist. v.  Sullivan, 51 S.W.2d 293 (Tex. 2001) (per curiam).

I agree that, as these cases show, some matters remain jurisdictional.  But that does not change what the supreme court said about presentment statutes in Essenburg.

⁴  See Fort Bend Indep. Sch. Dist. v. Rivera, 2002 WL 1899717, * 4 (Tex.  App.CHouston [14th Dist.] 2002, no pet. h); City of Weatherford v. Catron, 83 S.W.3d 261, 266 (Tex. App.CFort Worth 2002, no pet. h.); Tex.  S.  Univ. v.  Carter, 84 S.W.3d at 791-92; Johnson v. The City of Dublin, 46 S.W.3d 401, 405 (Tex. App.CEastland 2001, pet. denied); Gregg County v. Farrar, 933 S.W.2d 769, 777 (Tex. App.CAustin 1996, writ denied).

⁵  In Marin, it is significant that the City requested abatement, not dismissal. But because the employees in that case had abandoned their grievance and the American Arbitration Association had closed the file, there was nothing left to abate the case for.

⁶  In University of Texas Medical Branch at Galveston v. Hohman, the First Court of Appeals found the trial court had jurisdiction under the Whistleblower Act, even though the facts recited show the employees did not wait sixty days after initiating grievance procedures before filing suit. 6 S.W.3d 767, 774-75 (Tex.  App.CHouston [1st Dist.] 1999, pet. dism=d w.o.j.).