Matthew Carroll v. Kermit Black ( 1996 )

Carroll-M v. Black-K et al

IN THE

TENTH COURT OF APPEALS

No. 10-96-049-CV

        MATTHEW CARROLL,

                                                                                       Appellant

        v.

        KERMIT BLACK, ET AL.,

                                                                                       Appellees

From the 361st District Court

Brazos County, Texas

Trial Court # 40,537-361

O P I N I O N

          Matthew Carroll sued several Texas A&M University officials claiming wrongful discharge. The defendants filed a plea to the jurisdiction asserting the defense of sovereign immunity. After a hearing, the court granted the defendants' plea to the jurisdiction. Carroll appeals on one point: Does the Sabine Pilot exception to the employment-at-will doctrine apply to public employees asserting the defense of sovereign immunity? See Sabine Pilot Serv. Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985).

          Texas has long adhered to the employment-at-will doctrine. East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 75, 10 S.W. 99, 102 (1888). Some exceptions have been made to the doctrine by statute. See, e.g., Tex. Labor Code Ann. § 451.001 (Vernon 1996) (discharge for filing worker's compensation claim); Tex. Gov't Code Ann. § 554.002 (Whistleblower Act) (Vernon Supp. 1996). In 1985, our Supreme Court created a "very narrow" judicial exception to the employment-at-will doctrine: an employer may not discharge an employee "for the sole reason that the employee refused to perform an illegal act." Sabine Pilot, 687 S.W.2d at 735.

          The appellees do not dispute that the Sabine Pilot exception to the at-will doctrine exists. Instead, they argue that the exception does not overcome their defense of sovereign immunity. As state officials who were acting in their official capacity, appellees assert that —absent legislative consent or statutory exception—they are entitled to the immunity defense. See Bagg v. University of Texas Med. Branch, 726 S.W.2d 582, 586 (Tex. App.—Houston [14th Dist.] 1987, writ ref'd n.r.e.). 

          The justifications for sovereign immunity have long been criticized. Green Intern., Inc. v. State, 877 S.W.2d 428, 433 (Tex. App.—Austin 1994, writ denied, order withdrawn, dism'd). However, the waiver of soverign immunity is a matter properly addressed to the legislature. University of Texas Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994).

          Because we find neither legislative consent nor a statutory exception to sovereign immunity, we cannot say the trial court erred in dismissing Carroll's suit. We affirm the judgment.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Davis,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed December 18, 1996

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ustained.

      Howard, however, failed to preserve his complaint by making an offer of proof as required by Rule 52(b) of the Texas Rules of Appellate Procedure. Because nothing is presented for review, we overrule point of error one.

      In point two, Howard contends that the court erred in restricting his impeachment of the victim concerning statements she made that she wanted to spend the day at his house following the incident. On direct examination, the victim testified that on the day after the incident she told Howard that she did not feel good and wanted to go home. Howard's attorney elicited the following testimony from the victim on cross-examination:

QNow, you claim that you told Steven that you wanted to go home the next morning. Is that correct?

AYes, it is.

. . .

QIsn't it true that [your mother] came over to Steven's approximately between eight-thirty and nine?

ANo.

QThat's not true?

ANo, it isn't.

. . .

QAnd isn't it true that about nine-fifteen . . . your mother, left? That's not true, either.

ANo.

QAnd, in fact, isn't it true that you told your mother that you wanted to spend the rest of the day there?

ANo, because I don't remember my mother coming.

      On cross-examination, Howard's counsel again attempted to impeach the victim's testimony through the testimony of A. C., who testified as follows:

QDid [the victim] go home with her?

ANo. She said she wanted to stay—

[Prosecutor]: Your honor, this also is—

A—a little longer.

THE COURT: I sustain the objection and instruct the jury to disregard the last statement of the witness whereby she said—made a statement about what was said to her by [the victim].

      Howard argues that, because he was attempting to impeach the victim's testimony that she did not ask to stay with him on the day following the incident, the court erred in striking A. C.'s testimony. The State argues that the court properly sustained the objection and instructed the jury to disregard the answer because A. C.'s answer was nonresponsive. Although the State did not have an opportunity to give the specific grounds for its objection, if the court's decision is correct on any theory of law applicable to the case it will not be disturbed. Because the court properly instructed the jury to disregard Curry's nonresponsive answer, we overrule point of error two.

      In point three, Howard contends that the court erred in prohibiting him from offering evidence concerning the opinion of a witness about the truthfulness of the victim. Howard attempted to attack the victim's character for truthfulness through the testimony of Patricia Howard. On direct examination, Patricia Howard testified as follows:

QNow, based on you living in her home, do you have an opinion as to the—whether [the victim] is a truthful person?

[Prosecutor]: Your Honor, I'm going to object to this question. This witness is not qualified. She just said she hasn't been around the victim in the past two years.

THE COURT: Sustained.

      Again, Howard failed to preserve his complaint by making an offer of proof as required by Rule 52(b) of the Texas Rules of Appellate Procedure. Because nothing is presented for review, we overrule point of error three.

      We affirm the judgment.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed September 9, 1992

Do not publish