Anthony Leatherwood v. Prairie View a & M University

Opinion Issued February 12, 2004

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-01334-CV

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ANTHONY LEATHERWOOD, Appellant

V.

PRAIRIE VIEW A & M UNIVERSITY AND TEXAS A & M UNIVERSITY SYSTEMS, Appellees

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On Appeal from the 9th District Court

Waller County, Texas

Trial Court Cause No. 02-08-16491A

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MEMORANDUM OPINION

          Anthony Leatherwood, appellant, filed suit against Prairie View A & M University, Texas A & M University Systems, and several individuals connected to the Universities in their individual and official capacities for defamation and for retaliation under the Texas Whistleblower Act and sought injunctive relief and damages. Prairie View A & M University and Texas A & M University Systems (collectively “the University”) responded to Leatherwood’s petition with a motion to sever and a plea to the jurisdiction. The trial court granted the University’s motion to dismiss and sever. In three issues presented for review, appellant argues that the trial court improperly granted the University’s motion to dismiss. In particular, appellant contends that the trial court failed to consider (1) that the Texas Whistleblower Act contains a statutory waiver of sovereign immunity; (2) that injunctive relief for defamation is available when the defamation affects a natural or contractual right; and (3) that a statement which falsely charges a person with the commission of a crime punishable by imprisonment is considered defamatory per se and entitles the plaintiff to general or nominal damages. We affirm the order as modified.   

Background

          Anthony Leatherwood was employed in the Information Technology Department at Prairie View Texas A & M University. The underlying lawsuit concerns a one-page letter written on July 12, 2002 by Shah Ardalan, Leatherwood’s supervisor, to Mr. Larry Raab, Vice President for University Operations. In the letter, Ardalan wrote about five behavioral conflicts involving Leatherwood and other University employees. Leatherwood claims that the content of the letter was defamatory and written in retaliation for his reporting of improper University conduct.

          Leatherwood filed his original petition on August 14, 2002, claiming that Ardalan’s letter was defamatory; he requested damages and a temporary injunction to prevent dissemination of the information contained in the letter and removal of the letter from his personnel file. On August 23, 2002, a hearing was granted on Leatherwood’s request for injunctive relief and set for October 28, 2002. On October 25, 2002, the University filed its response to Leatherwood’s claims and request for injunctive relief. In its response, the University also filed a plea to the jurisdiction and a motion to dismiss, claiming that the trial court lacked subject matter jurisdiction over Leatherwood’s claims because the University was immune from tort liability under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code § 101.021 (Vernon 1997).

          On October 28, 2002, immediately prior to the hearing on Leatherwood’s temporary injunction request, Leatherwood filed his “first supplemental pleading,” alleging for the first time that the University had violated the Texas Whistleblower Act. See Tex. Gov’t Code Ann. § 554.0035 (Vernon Supp. 2003). That same day, following the hearing, the trial court denied Leatherwood’s motion for injunctive relief and granted the University’s motion to dismiss with prejudice.

Discussion

          Standard of Review

          In three issues, appellant challenges the trial court’s granting of the University’s plea to the jurisdiction and its dismissal of his claims. A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction to hear the case. Bland I.S.D. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Subject matter jurisdiction is essential to the authority of a court to decide a case and is never presumed. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Id. at 446; Richardson v. First Nat’l Life Ins. Co., 419 S.W.2d 836, 839 (Tex. 1967).

          The existence of subject-matter jurisdiction is a question of law. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Therefore, we review de novo the trial court’s ruling on a plea to the jurisdiction. Id. In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the plaintiff’s pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).   

          Sovereign Immunity

          Sovereign immunity, unless waived and absent legislative consent to sue the State, protects the State, its agencies, and its officials from lawsuits for damages. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). The University is a state agency entitled to sovereign immunity. Univ. of Tex.-Pan Am. v. Valdez, 869 S.W.2d 446, 448 (Tex. App.—Corpus Christi 1993, writ denied). In the absence of a waiver of sovereign immunity, a court has no jurisdiction to entertain a suit against a governmental unit. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). When a trial court learns that it lacks jurisdiction to hear a cause, the court must dismiss the cause and refrain from rendering a judgment on the merits. Li v. Univ. of Tex. Health Sci. Ctr., 984 S.W.2d 647, 654 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). The doctrine of sovereign immunity shields the State from liability for torts, such as defamation, except to the extent the immunity was waived by the Legislature or by statute. See City of La Porte v. Barfield,  898 S.W.2d 288, 291 (Tex. 1995); City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.—Houston [1st Dist.] 1995, no writ).

          Defamation

          In his second and third issues, appellant contends the trial court erred in dismissing his claims for injunctive relief and damages for defamation against the University on grounds of sovereign immunity. We disagree.

          The Texas Tort Claims Acts waives governmental immunity in three general areas: use of publicly owned vehicles, premises defects, and injuries arising from conditions or use of property. Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 1997). Appellant did not allege that the alleged retaliatory letter was related to the operation or use of a motor vehicle, a premises defect, or the use or misuse of property owned or controlled by the University—the only three areas in which the State waives immunity for torts. Thus, he does not bring his suit within the waiver provisions of the Texas Tort Claims Act.

          Moreover, intentional torts, such as defamation, do not fall within the scope of the waiver of immunity under the Tort Claims Act. Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2); City of Hempstead, 902 S.W.2d at 122. Thus, Leatherwood’s claim also fails because defamation is an intentional tort, for which the Tort Claims Act does not waive immunity. See City of Hempstead, 902 S.W.2d at 122. Accordingly, the University demonstrated its right to sovereign immunity, depriving the trial court of subject matter jurisdiction over appellant’s defamation claim against it and all other related claims and requests against the University. See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d at 638 (trial court lacks jurisdiction to hear a suit against the State unless the State has waived governmental immunity). Because the University has sovereign immunity with respect to appellant’s defamation claim, the trial court properly dismissed that claim, with prejudice, as well as his claims against the University for injunctive relief and damages arising from the defamation claim. We overrule appellant’s second and third issues.

          Whistleblower Act

          In his first issue, appellant contends the trial court erred in dismissing his claim against the University under the Whistleblower Act, section 554.035 of the Texas Government Code.           However, the Texas Whistleblower Act also contains a waiver of sovereign immunity. Tex. Gov’t Code Ann. § 554.0035 (Vernon Supp. 2003). However, before the State’s sovereign immunity is waived, the Act’s statutory prerequisites for filing suit must be satisfied. Tex. S. Univ. v. Carter, 84 S.W.3d 787, 792 (Tex. App.—Houston [1st Dist.] 2002, no pet.) . A plaintiff’s               mere reference to the Whistleblower Act does not establish the State’s consent to be sued. See Tex. Gov’t Code Ann. § 554.0035; see also Tex. Dep’t Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) (referring to the Tort Claims Act). Rather, the plaintiff bears the burden of alleging facts affirmatively demonstrating the trial court’s jurisdiction to hear his case. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

          A court does not have jurisdiction over a Whistleblower Act claim unless the plaintiff establishes that the State has waived immunity which entails establishing that he has satisfied the jurisdictional prerequisites to filing suit under the Act. Tex. S. Univ., 84 S.W.3d at 792. Before an employee files suit under the Whistleblower Act, he or she must initiate the grievance or appeal procedures of the employing state or governmental entity within 90 days after the alleged violation occurred. Tex. Gov’t Code Ann. § 554.006(a),(b). The grievance procedure is a jurisdictional requirement that is necessary to confer jurisdiction on the trial court. Tex. S. Univ., 84 S.W.3d at 792. Dismissal for lack of jurisdiction is proper when a public employee files a statutory Whistleblower claim before satisfying mandatory statutory prerequisites. Id.

          In the present case, Leatherwood pleaded a cause of action under the Texas Whistleblower Act but failed to plead that he had initiated the grievance or appeal procedures as required by the Act. Because Leatherwood did not plead compliance with the Act’s prerequisites, he failed to establish his right to sue the University under the Whistleblower Act. However, a litigant has a right to amend to attempt to cure pleading defects if jurisdictional facts are not alleged. Tex. R. Civ. P. 80; see Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002), Tex. Ass’n of Bus., 852 S.W.2d at 446.

          Accordingly, we overrule appellant’s first issue and affirm the trial court’s dismissal of his claims against the University under the Whistleblower Act as modified to reflect a dismissal without prejudice to appellant’s right to replead.

    Conclusion

          We affirm the portion of the trial court’s order dismissing Leatherwood’s defamation claim and related claims for lack of subject matter jurisdiction with prejudice, and we affirm as modified the portion of the order dismissing Leatherwood’s Whistleblower Act claims.

                                                             Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Taft, Keyes, and Bland.

Do not publish. Tex. R. App. P. 47.4.