Harris County, Texas & Harris County Sheriff's Department v. Lawson, Christopher ( 2003 )

Opinion issued November 21, 2003

    In The  

Court of Appeals  

For The  

First District of Texas  

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  NO. 01-02-00288-CV

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HARRIS COUNTY, Appellant  

V.

CHRISTOPHER LAWSON, Appellee

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On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 2000-47573

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DISSENTING OPINION FROM DENIAL OF

MOTION FOR REHEARING EN BANC  

          I respectfully dissent from denial of rehearing. I believe the original dissenting opinion that was issued in this case is correct.

          When a public employee is suspended or terminated for reporting violations of law by a governmental entity, the Whistleblower Act permits the employee two exclusive avenues to sue the State. The employee may either (1) exhaust the grievance proceedings and file suit within 30 days of the date of exhaustion or (2) terminate the grievance proceedings and file suit within the time remaining under the Act. Tex. Gov’t Code Ann. § 554.006(d). The majority opinion creates a third option—the employee may continue grievance proceedings while suing the state. By holding as it does, the majority overturns established law in this jurisdiction and creates a jurisprudence for plaintiffs within the jurisdiction of this court that is at odds with the other courts of appeals that have construed the Act, with pernicious consequences.

          By allowing employees to ignore the election provision, the majority permits employees to pursue grievance proceedings and lawsuits simultaneously in different forums. It thus invites duplicative proceedings, violating the principle of judicial economy the legislature intended to further by enacting section 554.006(d) and, instead, encouraging the waste of judicial and legal resources; it discourages voluntary settlement of employee grievances (an additional purpose of the exhaustion provision ); and it invites inconsistent outcomes between administrative and legal proceedings. As the dissent discusses, the consequence of this holding is not only to distance this court from the vast majority of appeals courts of this state which have considered the requirements of the Act, but also to distinguish the Act in this jurisdiction from the many similar statutes in which exhaustion of administrative remedies is a jurisdictional prerequisite to filing suit.

          For the foregoing reasons, I believe the Court should grant rehearing, withdraw and vacate its August 22, 2003 en banc opinion, and adopt the dissenting opinion as the opinion of the en banc court.

Evelyn V. Keyes

                                                                        Justice

The motion was considered by the en banc Court, consisting of Chief Justice Radack and Justices Hedges, Taft, Nuchia, Jennings, Keyes, Alcala, Hanks, and Higley. Tex. R. App. P. 49.3.  

A majority of the en banc Court voted to deny the motion. Id.

Justice Keyes, dissenting, joined by Justices Taft, Alcala, and Higley. Tex. R. App. P. 47.5.