In The
Court of Appeals
Ninth District of Texas at Beaumont
___________________
NO. 09-14-00443-CV
___________________
JEFFERSON COUNTY, TEXAS, Appellant
V.
APRIL SWAIN, Appellee
_________________________________________________________________
On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D-195,767
__________________________________________________________________
OPINION1
This is the second petition for permissive appeal filed by Jefferson County,
Texas (“the County”) seeking appellate review of an interlocutory order that is not
otherwise appealable. On October 2, 2014, we issued a memorandum opinion
denying the first petition for permissive appeal filed by the County relating to the
1
“An opinion may not be designated as a memorandum opinion if the author
of a concurrence or dissent opposes that designation.” Tex. R. App. P. 47.4.
1
trial court’s denial of the County’s Rule 91a motion to dismiss.2 Jefferson Cnty. v.
Swain, No. 09-14-00347-CV, 2014 WL 4952280 (Tex. App.—Beaumont Oct. 2,
2014, no pet. h.) (mem. op.); see Tex. R. Civ. P. 91a. On October 7, 2014, the
County obtained a second amended order from the trial court denying the County’s
same Rule 91a motion to dismiss. The County, as petitioner, has now filed a
second petition for permissive appeal in this Court regarding the denial of the same
Rule 91a motion to dismiss. See Tex. R. App. P. 28.3; Tex. R. Civ. P. 168; Tex.
Civ. Prac. & Rem. Code Ann. § 51.014 (West Supp. 2014).
Having reviewed the petition, the response, the orders and letter ruling, as
well as the record before us at this time, we conclude the County has not
demonstrated that the order it seeks to appeal involves a controlling question of
law as to which there is a substantial ground for difference of opinion. We dismiss
2
In the County’s Rule 91a motion to dismiss and in its petition for
permissive appeal, the County argues that Swain “makes no reference to any legal
causes of action or violations of any law or regulation. The only cite is to the Labor
Code, which includes a section that does not exist.” In her Original Petition, Swain
stated, “Defendant County, being sued for violation of the Tex. Lab. Code Ann.
§554.0035[] is a municipality . . . .” In the factual section of her Original Petition,
Swain alleged among other items that “Plaintiff was suspended[] and terminated
because she reported to the Internal Affairs Division . . . that [her supervisor] was
violating the policies and the law.” Swain argues that the reference to the “Labor
Code” was a typographical mistake and that she intended to cite to Chapter 554 of
the “Government Code,” the Whistleblower Statute. Swain claims it was “clear to
the Court and Defendant County” that she “was asserting a cause of action under
the Whistleblower Act.”
2
the matter for want of jurisdiction. See Tex. R. App. P. 28.3(e)(4); Tex. Civ. Prac.
& Rem. Code Ann. § 51.014(d), (f); Swain, 2014 WL 4952280, at *1; see also
generally GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex. App.—
Beaumont 2014, pet. filed).
PETITION FOR PERMISSIVE APPEAL DISMISSED.
______________________________
LEANNE JOHNSON
Justice
Submitted on December 10, 2014
Opinion Delivered December 11, 2014
Before Kreger, Horton, and Johnson, JJ.
3
CONCURRING OPINION
In my opinion, Jefferson County’s request to appeal presents a question that
involves a controlling question of law on which there is a substantial difference of
opinion, so its request to appeal meets the standard that entitles it to gain
interlocutory review. However, while I do not agree with the majority’s
explanation about why we should dismiss the County’s request for permission to
appeal, I agree that the request should be dismissed, as the County has not shown
that the trial court had subject-matter jurisdiction to render the order that it seeks to
have us review.
The procedural history in the trial court is relevant to a proper disposition of
the County’s request. Because that history is not sufficiently explained in the
opinion authored by the majority, I include it here.
Swain’s Original Petition, the pleading on which the trial court based its
decision to deny the County’s motion to dismiss, alleges that the County violated
“[section] 554.0035” of the Texas Labor Code. While the Labor Code has sections
prohibiting many types of discriminatory actions against employees, the section
Swain cited does not exist. See Tex. Lab. Code Ann. §§ 21.001-.556 (West 2006 &
Supp. 2014) (referred to as the Texas Commission on Human Rights Act (CHRA);
4
section 21.055 of the Act makes it unlawful for an employer to retaliate against an
employee for opposing a discriminatory practice).
After answering, the County filed a Rule 91a motion to dismiss Swain’s
lawsuit, asserting that Swain alleged no claims that had a basis in law. See Tex. R.
Civ. P. 91a.1 (authorizing the dismissal of baseless causes of action that have “no
basis in law or fact”). According to the County’s motion to dismiss, Swain’s
petition “is silent on the causes of action against [the County.]” In support of its
argument that Swain’s petition had no legal basis, the County pointed out that
Swain’s Original Petition wholly relied on a statute “that does not exist.” Prior to
the hearing on the County’s Rule 91a motion to dismiss, Swain did not amend her
petition.
The majority notes that we dismissed the County’s prior attempt to review
the trial court’s decision on the County’s Rule 91a motion. See Jefferson Cnty. v.
Swain, No. 09-14-00347-CV, 2014 WL 4952280 (Tex. App.—Beaumont Oct. 2,
2014, no pet. h.) (mem. op.). And, the majority notes that the order which is the
subject of the County’s present request to appeal concerns a different order than
the one we ruled on previously. But, the majority fails to note that the trial court
stated a basis for its ruling in the order now at issue, a basis different from the
explanation the trial court provided the parties in a letter intended to explain the
5
reasons that led it to render the prior order. Unlike the trial court’s prior order, the
order now at issue concludes that Swain’s Original Petition has no basis in law, as
the trial court’s order states that “the petition alleges as the sole ground of recovery
a statutory cause of action which does not exist and therefore has no basis in law
such that it cannot entitle plaintiff to any relief[.]” The majority appears to view the
two orders as having no material difference, despite the trial court’s effort to
clarify the basis of its ruling so the County could gain our review in its attempt to
pursue an interlocutory appeal.
However, even though the trial court found that Swain’s claims, as alleged
in her petition, had no basis in law, the trial court did not dismiss Swain’s lawsuit.
Instead, the trial court denied the motion, and took the position that the deficiencies
in Swain’s pleading could be addressed through special exceptions, a procedure
governed by Rule 91 of the Texas Rules of Civil Procedure. In relying on Rule 91
to deny the County’s motion, the trial court recognized that its construction of Rule
91a—allowing Swain to file amended pleadings to cure a pleading that failed to
state a legal basis—is a ruling that is at odds with some of the language in Rule
91a.6, which requires trial courts to decide Rule 91a motions based solely on the
pleadings before it at the hearing. See Tex. R. Civ. P. 91a.6. Given the trial court’s
determination that the pleading before it stated no legal claim and considering the
6
provisions governing the disposition of Rule 91a motions, the trial court
recognized that the question of whether it had the authority to permit further
amendment presented a pure question of law over which there could be substantial
difference of opinion. Obviously, our court has a substantial difference of opinion
about whether the trial court could allow Swain to amend pleadings after the trial
court conducted the hearing, given the trial court’s recognition that Swain’s
pleadings failed to state a legal basis for her claims.
My difference of opinion with the majority on the question of the trial
court’s authority to allow a party to amend pleadings that state no legal basis for a
claim is grounded on Rules 91a.5 and 91a.6 of the Texas Rules of Civil Procedure,
rules that severely limit what a trial court may consider in deciding a Rule 91a
motion. Rule 91a.5 provides: “In ruling on the [Rule 91a] motion, the court must
not consider a nonsuit or amendment not filed as permitted by paragraphs (a) or
(b).”3 Tex. R. Civ. P. 91a.5(c). Rule 91a.6 also prohibits a trial court from
speculating about whether the pleadings before it are capable of being amended to
properly allege a claim. Under Rule 91a.6, “the court may not consider evidence in
3
Paragraph (a) of Rule 91a.5 concerns a party’s nonsuit of a claim in the face
of a hearing on a motion to dismiss, a provision that is not at issue here. Tex. R.
Civ. P. 91a.5(a). Paragraph (b) of Rule 91a.5 concerns amendments to pleadings
filed at least three days before the date of the hearing, and it is also not at issue
here. Tex. R. Civ. P. 91a.5(b).
7
ruling on the motion and must decide the motion based solely on the pleading of
the cause of action[.]” 4 Tex. R. Civ. P. 91a.6. In Swain’s case, Swain’s Original
Petition was her live pleading for the purpose of the hearing the trial court
conducted on the County’s motion to dismiss. The trial court has recognized that
Swain’s Original Petition has not alleged a claim that has a legal basis, as she
alleged a statutory basis for her claim that does not exist. Given the restrictions on
a trial court’s authority to consider amended pleadings, applicable in Rule 91a
proceedings, the trial court’s decision to allow pleadings that fail to state a legal
basis to be amended is a matter that presents a legal question that we would be
required to review in a permissive appeal, assuming that the trial court had
jurisdiction over the subject of the dispute when it ruled.
Therefore, if the trial court had subject-matter jurisdiction over Swain’s case
when it denied the County’s motion, I would be filing a dissent from the majority’s
decision to deny the County’s request to appeal. But, based on the information
4
Rule 91a.6 reads that “Except as required by 91a.7, the court may not
consider evidence in ruling on the motion and must decide the motion based solely
on the pleading of the cause of action, together with any pleading exhibits
permitted by Rule 59.” Tex. R. Civ. P. 91a.6. The exceptions mentioned, Rule
91a.7 and Rule 59, were not shown to be relevant in either the County’s motion to
dismiss or Swain’s response to the County’s motion, nor did the trial court rely on
these exceptions in its Second Amended Order.
8
presently before us, it does not appear the trial court possessed subject-matter
jurisdiction over Swain’s case when it ruled.
I must base my jurisdictional analysis on the limited information before us
because the majority has refused to exercise the authority it has under the
Government Code to determine whether subject-matter jurisdiction exists over the
County’s request to appeal.5 When a trial court acts without subject-matter
jurisdiction, its lack of jurisdiction affects whether the decisions that we make on
that case are valid. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012)
(“We have said on numerous occasions that sovereign immunity deprives courts of
subject-matter jurisdiction.”); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 446 (Tex. 1993) (explaining that “[w]hen an appellate court questions
jurisdiction on appeal for the first time . . . [and] reviews the standing of a party
sua sponte, it must construe the petition in favor of the party, and if necessary,
review the entire record to determine if any evidence supports standing”);
Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985) (explaining that a judgment
5
Section 22.220 of the Texas Government Code allows the courts of appeal
to determine, by affidavit or otherwise, “the matters of fact that are necessary to
the proper exercise of its jurisdiction.” Tex. Gov’t Code Ann. § 22.220(c) (West
Supp. 2014). The majority has not authorized our use of this provision in this case,
and issued a ruling without first establishing that we do have jurisdiction over the
dispute.
9
is void when, among other things, it is apparent that court rendering judgment “had
. . . no jurisdiction of the subject matter”); see also Alfonso v. Skadden, 251 S.W.3d
52, 55 (Tex. 2008) (holding that the trial court orders were subject to a collateral
attack and were unenforceable due to the trial court’s lack of subject-matter
jurisdiction over the dispute).
Jefferson County’s Rule 91a motion neither questioned whether the trial
court could exercise jurisdiction over Swain’s suit, nor has the County questioned
our jurisdiction to act on the County’s request for permission to appeal. 6 However,
it is well settled that “sovereign immunity deprives courts of subject-matter
jurisdiction.” Black, 392 S.W.3d at 95; Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 225-26 (Tex. 2004); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d
636, 638 (Tex. 1999) (per curiam). Governmental immunity, like sovereign
immunity, affords protection against suits to subdivisions of the state such as
counties, unless that immunity has been waived. Harris Cnty. v. Sykes, 136 S.W.3d
635, 638 (Tex. 2004). Therefore, before we may properly decide the County’s
appeal, we must establish whether the trial court and our court possess subject-
6
However, the County’s answer asserts that “Jefferson County, Texas, is
entitled to sovereign immunity as is provided under the law and said immunity has
not been waived by Defendant.” Thus, the information in the record shows that a
question regarding the trial court’s jurisdiction of the subject matter of the dispute
has been raised, even if not yet ruled on.
10
matter jurisdiction over Swain’s case. See Black, 392 S.W.3d at 95 (holding that in
an interlocutory appeal under Chapter 51 of the Texas Civil Practice and Remedies
Code, an appellate court must still consider whether it has jurisdiction over the
appeal even if a claim of sovereign immunity is not raised in the trial court but
noticed for the first time on appeal, and disapproving of cases holding to the
contrary).
With respect to permissive appeals, the legislative grant of jurisdiction is
found in Chapter 51 of the Texas Civil Practice and Remedies Code. Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(a), (d) (West Supp. 2014). Even though no
party has questioned whether subject-matter jurisdiction is present, a court’s lack
of subject-matter jurisdiction is not waived and may be raised at any time, even if
raised for the first time on appeal. See Black, 392 S.W.3d at 95. Because the
majority declines the County’s request to appeal, the record is not fully developed
regarding the questions that I have raised with the majority concerning whether
subject-matter jurisdiction exists in Swain’s case. Thus, my opinion regarding
whether subject-matter jurisdiction exists is constrained by the limited information
in the record before us.
11
To assess whether the trial court had jurisdiction over the subject of Swain’s
complaint, we examine the entire record before us.7 Black, 392 S.W.3d at 95
(noting that “the Texas Constitution does not afford courts jurisdiction to make
advisory decisions or issue advisory opinions”); Tex. Ass’n of Bus., 852 S.W.2d at
444. Based on the information that is before us, Swain’s suit appears to stem from
the County’s decision to terminate her as a correctional officer. Swain’s pleadings
allege, in conclusory fashion, that her supervisor “was subjecting her to
7
The following information is before us: (1) Swain’s Original Petition; (2)
Jefferson County’s Answer; (3) Jefferson County’s Motion to Dismiss Per Texas
Rule of Civil Procedure Rule 91a; (4) a Notice of Hearing, scheduling the 91a
hearing for July 22, 2014; (5) an unsigned Order granting the County’s Motion to
Dismiss; (6) a letter from the trial court, dated July 23, 2014, explaining why the
trial court intended to deny the Rule 91a motion, stating the trial court “believe[d]
that there are, in fact, certain causes of action that could be supported by the
allegations (taking the allegations as true as the Court is instructed to do)[;]” (7)
Jefferson’s County Request for Permission to Appeal; (8) an amended order,
signed by the trial court on August 15, 2014, dismissing the County’s Rule 91a
motion and granting the County permission to pursue an interlocutory appeal; (9) a
second amended order, signed by the trial court on October 7, 2014, stating the
trial court found the controlling question of law to be “whether the legal analysis of
TRCP 91a is any different than from TRCP 91? More specifically, if so, does it
require the dismissal of a case where the petition alleges as the sole ground of
recovery a statutory cause of action which does not exist and therefore has no basis
in law such that it cannot entitle plaintiff to any relief? There is no case law by any
Texas appellate court regarding TRCP 91a[;]” (10) Plaintiff’s Interrogatories and
Request for Production to Jefferson County (without answers); (11) Swain’s First
Amended Petition, filed August 22, 2014; (12) a letter dated June 27, 2014, from
Jefferson County’s district attorney to Swain’s attorney regarding the County’s
special exceptions; and, (13) a draft of Jefferson County’s proposed special
exceptions.
12
discriminatory and retaliatory conduct[,]” but her petition fails to allege facts about
what she reported or what was done to her. Instead, she pleads in a conclusory
fashion that what happened to her was discriminatory and retaliatory.
Swain’s pleadings allege that she reported complaints to a deputy, who on
receiving her complaints, and with the assistance of a supervisor, fabricated
charges against her “to discredit her.” At some later date, a date that cannot be
determined from Swain’s pleadings, she was terminated. Thus, the complaints that
Swain is making relate to how she was treated at work once she voiced complaints
that she had about her direct supervisor with a deputy. Nevertheless, Swain’s
pleadings do not contain affirmative allegations of fact informing a court about
what Swain claims she reported to the deputy or alerting the tribunal about what
Swain’s direct supervisor did to retaliate against her based on her report, so we are
unable to determine factually what facts form the basis of her alleged unlawful
discrimination and retaliation claims.
Additionally, Swain has not pled that the County waived its immunity from
being sued, that she exhausted any administrative remedies that she was required to
exhaust before filing suit, or that her claims are not subject to any exhaustion
requirements. From a factual standpoint, knowing what is alleged to form the basis
of Swain’s claims is critical to determining whether Swain has a claim under the
13
Texas Commission on Human Rights Act, as it provides the exclusive state
statutory remedy for most retaliatory discharge cases involving county employees.
See Tex. Lab. Code Ann. §§ 21.001-.556, § 21.055 (West 2006) (explaining that
the statute makes it unlawful for an employer to retaliate “against a person who . . .
(1) opposes a discriminatory practice; (2) makes or files a charge; (3) files a
complaint; or (4) testifies, assists, or participates in any manner in an investigation,
proceeding, or hearing”); see also City of Waco v. Lopez, 259 S.W.3d 147, 155
(Tex. 2008) (noting that the policies of the CHRA could be sidestepped if plaintiffs
were allowed to “simply frame their disputes as whistleblower claims and sidestep
the investigatory and conciliation scheme set forth in the CHRA”). By making
vague and conclusory allegations, it appears that Swain is attempting to sidestep
the exhaustion requirements of the CHRA, a failure that prevents the trial court
from having jurisdiction over her claims. Generally, when an agency of the state
has exclusive jurisdiction over the matter in dispute, a claimant must exhaust all of
her administrative remedies before filing a claim in the trial court. In re Entergy
Corp., 142 S.W.3d 316, 321-22 (Tex. 2004) (“Until the party has exhausted all
administrative remedies, the trial court lacks subject matter jurisdiction and must
dismiss any claim within the agency’s exclusive jurisdiction.”). The exhaustion-of-
remedies requirement ensures that the appropriate administrative agency has an
14
opportunity to resolve disputed fact issues that are within an agency’s exclusive
jurisdiction before a court is required to address them. Essenburg v. Dallas Cnty.,
988 S.W.2d 188, 189 (Tex. 1998).
If Swain’s complaints about Jefferson County fall under the CHRA, and the
claims she advanced in her petition appear to me to fall under that Act, she was
required to plead and to show that she exhausted her administrative remedies
before a court has subject-matter jurisdiction of her case. See Lopez, 259 S.W.3d at
155 (holding that the CHRA “provides the exclusive state statutory remedy for
public employees alleging retaliation arising from activities protected under the
CHRA”). Because Swain failed to plead that she had exhausted her remedies under
the Act, the trial court did not have jurisdiction over the claims alleged in Swain’s
pleadings before the trial court at the hearing on the County’s motion to dismiss.
Id. at 154, 156.
In conclusion, in the absence of information showing otherwise, Swain’s
pleadings and the information before me indicate that Swain failed to
“affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of
immunity.” Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.
2003) (citations omitted). Therefore, because it appears to me that the courts lack
subject-matter jurisdiction over Swain’s claims, as those claims are alleged in
15
Swain’s Original Petition, I concur in this Court’s decision to dismiss the County’s
request for permission to appeal.
______________________________
HOLLIS HORTON
Justice
Concurrence Delivered
December 11, 2014
16