Opinion issued August 22, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00288-CV
____________
HARRIS COUNTY, Appellant
V.
CHRISTOPHER LAWSON, Appellee
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2000-47573
DISSENTING OPINION
I respectfully dissent. When a public employee is suspended or terminated for reporting violations of law by the employing governmental entity, sections 554.0035 and 554.006(d) of the Whistleblower Act (1) (the Act) waive sovereign immunity and permit the employee two avenues to sue the State. See Tex. Gov't Code Ann. §§ 554.0035, 554.006(d) (Vernon Supp. 2003). 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); Smith v. Univ. of Tex. Southwestern Med. Ctr. of Dallas, 101 S.W.3d 185, 189 (Tex. App.--Dallas 2003, not pet.). In accordance with section 554.006(d), this Court has recently held that an employee who simultaneously sought to pursue her grievance proceedings and a lawsuit after the 60-day waiting period did not comply with section 554.006(d)'s election provision and, therefore, did not maintain jurisdiction in the trial court. Univ. of Houston Sys. v. Lubertino, 95 S.w.3d 423, 427 (Tex. App.--Houston [1st Dist.] 2002, no pet.). Lubertino followed this Court's recent decision in Texas Southern University v. Carter by concluding that an employee's failure to comply with the Act's limitations provisions results in a loss of jurisdiction, because employees who fail to comply with the limitations provisions do not fall within the State's limited waiver of sovereign immunity. Id., 84 S.W.3d 787, 792 (Tex. App.--Houston [1st Dist.] 2002, no pet.).
The issue now before the Court is the majority's attempt to overrule our decision in Lubertino and to hold that an employee need not make the election that section 554.006(d) requires. The majority incorrectly concludes that employees may simultaneously pursue grievance proceedings and lawsuits after the 60-day waiting period, and that the limitations provisions contained in section 554.006(d)'s election provision are not mandatory. Harris County v. Lawson, No. 01-02-00288-CV (Tex. App.--Houston [1st Dist.] August 22, 2003, n.p.h.). Because the majority does not accord necessary deference to the plain meaning and legislative intent of the Act, I respectfully dissent.
Significance of the Election Provision
The election provision is significant in the Whistleblower Act for two reasons. First, the election provision requires that grievance proceedings be exhausted or terminated--and not ongoing--when a lawsuit is filed. Second, the election provision states the time limitations that govern when a lawsuit may be filed against the State, depending on the course of action taken by an employee. Each issue is addressed in turn.
1. Concurrent Grievance Proceedings and Lawsuits
After waiting 60 days from the date grievance procedures are initiated, can employees disregard the election provision and simultaneously pursue grievance procedures and lawsuits?
The plain language of the Act neither permits nor contemplates concurrent lawsuits and grievance proceedings and affirmatively dictates otherwise. Under section 554.006(d), after an employee participates in the grievance process for 60 days, the employee may (1) file a lawsuit within 30 days after exhausting grievance procedures, or (2) file a lawsuit within the remaining time limits under the Act if the employee chooses to terminate the grievance procedures. Tex. Gov't Code Ann. § 554.006(d). Under either of the options that authorize a lawsuit, the grievance proceedings must first have ended--by exhaustion or termination. The Act does not envision an ongoing grievance proceeding when a lawsuit is filed. See id. Despite section 554.006(d)'s plain language authorizing an employee to file a lawsuit after exhaustion or termination of grievance proceedings, the majority has judicially created a new process that permits grievance proceedings and lawsuits to proceed concurrently.
The panel opinion relies on Castleberry Independent School Dist. v. Doe, for the proposition that "the employee is no longer required to exhaust available grievance procedures, but may file suit within the remaining time." Id., 35 S.W.3d 777, 782 (Tex. App.--Fort Worth 2001, pet. dism'd w.o.j.). Castleberry does not address, however, whether an employee must comply with the election provision. Furthermore, this Court has expressly declined to follow Castleberry's holding that "the proper avenue for raising the statute of limitations defense under the Whistleblower Act is in a motion for summary judgment, not in a plea to the jurisdiction." See Carter, 84 S.W.3d at 792 (holding that Whistleblower Act's statute-of-limitations provisions are jurisdictional requirements that may be challenged by way of plea to the jurisdiction).
To clarify, Lubertino does not hold that an employee must exhaust administrative remedies before filing suit. Lubertino holds only that an employee must adhere to statutory prerequisites to filing suit, including the election provision in section 554.006(d), before filing suit under the Act. Lubertino, 95 S.W.3d at 427. As opposed to isolated quotations from Castleberry, the more recent opinion of the Dallas Court of Appeals in Smith more aptly states the requirements of the Act, as follows:
In her third issue, Smith argues that the trial court erred in dismissing her claims under the Texas Whistleblower Act. That act requires a public employee seeking whistleblower status to sue no later than 90 days after the alleged violation of the act. Tex. Gov't Code Ann. § 554.005 (Vernon Supp. 2003). The single exception to this requirement is found in section 554.006 of the act. That section requires the employee to initiate action under the grievance or appeal procedures of her employer before filing suit. Id. § 554.006(a). The time taken by participation in these procedures is excluded from the 90-day requirement of section 554.005. Id. § 554.006(c). If the grievance or appeal is not resolved within 60 days, the employee may either terminate the procedure and file suit or exhaust the procedure and sue after exhaustion. Id. § 554.006(d).
Smith, 101 S.W..3d at 189 (emphasis added).
Under Lubertino, and as apparently contemplated by Smith, the employee may either terminate the grievance proceedings and file a lawsuit within the time remaining under the Act or exhaust the grievance proceedings and file a lawsuit within 30 days. Smith, 101 S.W.3d at 189; Lubertino, 95 S.W.3d at 427. Lubertino is at odds with the majority opinion's assertion that the employee is free to ignore this election. (2)
2. The Time Limitations
When may an employee sue the State for violations under the Act? The election provision provides limitations periods that depend on the course of action an employee chooses. As stated above, the election provision provides that, if a final decision is not rendered before the 61st day after the date grievance procedures are initiated, an "employee make elect to: (1) exhaust the [grievance procedures] . . ., in which event the employee must sue not later than the 30th days after the date those procedures are exhausted to obtain relief under this chapter; or (2) terminate [grievance procedures] . . ., 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(d) (emphasis added). Under the plain language of the Act, an employee's elected course of action determines which limitations period applies when filing suit.
Under the majority opinion, however, it is unclear what limitations periods would apply when an employee fails to elect under section 554.006(d). In footnote five, the majority opinion states that section 554.006(d) "in no way precludes an employee from filing suit at any time after waiting 60 days for a final decision, provided that the suit is filed within the statutory limitations period" and then lists the limitations periods contained in section 554.005(d)'s election provision as the applicable limitations periods under the Act. Lawson, slip op. at 15, n.5. It appears that the majority would construe section 554.006(d)'s election provision as advisory in all aspects except limitations. But this construction of the Act is problematic because of (1) the majority's conflicting holding that a statutory provision that we construe as voluntary contains mandatory limitations periods and (2) the construction's inapplicability to Lawson, who chose neither to exhaust nor terminate grievance procedures and, therefore, did not fall within the limitations periods under section 554.006(d). Thus, as evidenced in Lubertino and the majority opinion in this case, whether an employee must comply with the election provision directly determines the limitations periods that the employee must follow under the Act.
Compliance with the Election Provision
Is the election provision of the Act voluntary or a condition precedent to filing a lawsuit? Three reasons underscore Lubertino's holding that an employee must comply with the election provision before filing suit. First, the plain language of the statute specifies what an employee must do before the employee may sue. Second, the legislative intent supports the interpretation that an employee may sue only after making an election. Third, the statute is consistent with other statutes that waive sovereign immunity. Each reason is addressed in turn.
1. Plain Language of the Statute
As addressed above, the plain language of the election provision states that an employee who has participated in grievance proceedings for 60 days may elect to sue within 30 days of exhausting the grievance proceedings, or within the time left to file the lawsuit under the Act if the grievance proceedings are terminated. Tex. Gov't Code Ann. § 554.006(d). The plain language of the Act thus contemplates two ways for an employee to file a lawsuit--by exhausting or by terminating grievance proceedings. See Smith, 101 S.W.3d at 189.
2. Legislative Intent
Did the Legislature add the election provision only to have it be construed as voluntary and meaningless? By allowing employees to ignore the election provision, the majority permits employees to pursue grievance proceedings and lawsuits simultaneously. The majority holds that "a public employee, as statutory prerequisites to filing a Whistleblower lawsuit, must (1) timely initiate the governmental entity's grievance or appeal procedures and, then, (2) give the governmental entity at least 60 days to reach a final decision on the grievance or appeal." Lawson, slip op. at 15.
According to the majority, we should judicially interpret section 554.006(d) to read as follows:
If a final decision is not rendered before the 61st day after the date procedures are initiated under Subsection (a), the employee my bring suit. (3)
This interpretation, however, reduces the election provision to nothing more that advisory legislation. As we noted in Lubertino, "We cannot presume the Legislature enacted [the election provision] with the intent or expectation that employees be free to ignore it." Lubertino, 95 S.W.3d at 428. We must avoid statutory interpretations that render portions of a particular statute meaningless or mere surplusage. See Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987). By holding that an employee may ignore the election provision, this is exactly what the majority does.
Action by the legislature supports construing the Act as permitting an employee to sue only after complying with the election provision. In 1995, the Legislature amended the Act by deleting the requirement that grievance proceedings be exhausted before a lawsuit could be filed, and by adding the election provision at issue here. See Act of May 22, 1993, 73rd Leg., R.S., ch. 268, § 1, 1993 Tex. Gen. Laws 583, 610 (amended 1995) (current version at Tex. Gov't Code Ann. § 554.006 (Vernon Supp. 2003)). We must consider the predecessor act when deciding when determining whether the Legislature intended section 554.006(d)'s election provision as a statutory prerequisite to suit. See Redmon, 745 S.W.2d at 316.
The panel opinion interprets the 1995 amendment as enabling employees to sue more easily. The Legislature's intent, however, appears more consistent with an effort to conserve state resources by (1) avoiding unnecessary duplication, through which the State would be required to address concurrent grievance proceedings and lawsuits involving the same set of facts, and by (2) avoiding futile grievance proceedings by allowing an employee to terminate the grievance proceedings after 60 days. As the majority readily acknowledges, the Legislature's purpose in enacting the Act's statutory prerequisites, including the election provision, was to afford governmental entities the opportunity to correct their errors before facing litigation, rather than during or after litigation. See Lawson, slip op. at 16. By allowing employees to bring suit during grievance proceedings, the majority contravenes this purpose.
3. Consistent Statutory Construction
The majority's holding that an employee is free to ignore the election provision focuses on the Legislature's use of the word "may" in section 554.006(d). Id. slip op. at 14-15. If the Legislature had stated that the employee "must elect," then we would certainly construe the election provision as a statutory prerequisite to filing suit under the Act. The question therefore becomes, "Does the Legislature's use of the word 'may' instead of the word 'must' change a mandatory statutory prerequisite into mere advisory legislation?" Lubertino concluded that it did not. See Lubertino, 95 S.W.3d at 427.
Section 554.0035, the "permission to sue" provision of the Act, states that an employee "may sue the employing State or local governmental entity. . ." Tex. Gov't Code Ann. § 554.0035 (Vernon Supp. 2003). Section 554.006(d), in conjunction with section 554.0035, uses the word choice "may" in waiving sovereign immunity. The Legislature's choosing the word "may" in the election provision is consistent with other waiver-of-sovereign-immunity statutes that also use "may" in authorizing a party to sue. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 101.025(b) (Vernon 1997) ("permission to sue" provision under Tort Claims Act provides that, "a person having a suit under this chapter may sue a governmental unit"); Tex. Gov't Code Ann. § 2007.021 (Vernon 2000) (providing that, in suit against political subdivision under Private Real Property Rights Preservation Act, "private real property owner may bring suit under this subchapter"); see also Gregg County v. Farrar, 933 S.W.2d 769, 777 (Tex. App.--Austin 1996, no writ) (holding fact that aggrieved party "may" appeal decision of grievance committee was intended to mandate appeal to commissioner's court as final step of exhausting administrative remedies). Section 554.006(d)'s "may" is no different.
Under general rules of statutory construction, the Legislature's choosing the word "may" makes logical sense. Had the Legislature chosen alternate words like "shall" or "must," these could arguably be construed as imposing a duty on employees to file suit once the 60-day waiting period expires. See Tex. Gov't Code Ann. § 311.016 (Vernon 1998) ("shall" imposes a duty; "must" creates or recognizes a condition precedent); compare Tex. Gov't Code Ann. § 311.016(1) ("may" creates discretionary authority or grants permission) (Code Construction Act). Employees, however, clearly have no duty to sue. As opposed to creating a duty or even the impression that an employee must file suit, the word "may" merely grants employees permission to sue under the conditions set forth in section 554.006(d).
The panel opinion focuses on the words "must initiate action" in section 554.006(a) and "must invoke" in section 554.006(b). See Lawson, slip op. at 10, 13-14. It is important, however, to review the language in the context of the entire Act. Redmon, 745 S.W.2d at 316. The Act states that an employee may elect to exhaust the grievance proceedings or terminate them; these are the employee's two options. The Act then specifies the limitation effect of either election by stating that the employee "must sue not later than the 30th day after the date those procedures are exhausted to obtain relief under this chapter" for grievance procedures that are exhausted, or "must sue within the time remaining under Section 554.005 to obtain relief under this chapter" for grievance procedures that are terminated. tex. Gov't Code Ann. § 554.006(d). The third option provided by the majority, that employees may simultaneously pursue grievances and lawsuits, is never presented in the Act. We should hesitate to judicially adopt the panel opinion's third option as an additional waiver of the State's sovereign immunity.
Because the plain language of section 554.006(d) of the Act specifies when and under what circumstances an employee may sue, and because the legislative history and well-settled principles of statutory construction support the conclusion that an employee may only file suit under the Act upon either exhausting grievance procedures or terminating them, an election to exhaust or terminate grievance proceedings should be construed a requirement of complying with the Act.
Election Provision Affects Jurisdiction
If a failure to make an election to exhaust or terminate grievance proceedings constitutes a failure to comply with the Act, does a court lose jurisdiction to hear the case? (4) Court that have interpreted section 554.006 have determined that the failure to abide by the terms of the Act results in a loss of jurisdiction. See e.g., Univ. of Tex. Med. Branch v. Savoy, 86 S.W.3d 782, 787 (Tex. App.--Beaumont 2002, pet. denied) (holding that failure to comply with 60-day waiting period under section 554.006(d) deprives trial court of subject-matter jurisdiction); City of San Antonio v. Marin, 19 S.W.3d 438, 442 (Tex. App.--San Antonio 2000, no pet.) (same); Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 774 (Tex. App.--Houston [1st Dist.] 1999, pet. dism'd w.o.j.) (holding that compliance with section 554.006 is jurisdictional); Farrar, 933 S.W.2d at 777 (holding that failure to comply with requirements of section 554.006(d) deprives trial court of subject-matter jurisdiction).
The majority attempts to distinguish these cases on the grounds that their rulings pertain to sections of the Act other than the election provision of section 554.006(d), but this is a distinction without a difference. The same logic and rationale that applies in construing whether compliance with the remainder of section 554.006 is jurisdictional should apply when construing whether compliance with the election provision of section 554.006(d) is jurisdictional. Because the election provision delineates when suit can be filed, the provision is as significant as other provisions of section 554.006 that courts have determined are jurisdictional, such as the failure to participate in grievance proceedings for 60 days or the failure to initiate a grievance prior to filing suit.
In Carter, this Court held, in the context of sovereign immunity, that the limitations provisions of the Act were statutory prerequisites that must be met to confer jurisdiction upon a trial court. Carter, 84 S.W.3d at 792. Former Chief Justice Schneider wrote as follows:
In sum, the Whistleblower Act creates the cause of action to be 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.
In the sovereign immunity context, causes of action derive from statutes whose provisions are mandatory, exclusive, and must be complied with in all respects. See Grounds v. Tolar Indep. Sch. Dist., 707 S.W.2d 889, 891 (Tex. 1986), overruled in part on other grounds, Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000); Carter, 84 S.W.3d at 792; Univ. of Texas-Pan American v. De Los Santos, 997 S.W.2d 817, 820 (Tex. App.--Corpus Christi 1999, no pet.). When a plaintiff fails to comply in all respects, the trial court has no jurisdiction over the cause of action. See Grounds, 707 S.W.2d at 891; Carter, 84 S.W.3d at 792; De Los Santos, 997 S.W.2d at 820.
The election provision in section 554.006(d) specifies the time periods and circumstances in which a lawsuit may be filed, and it provides that grievances be ended, either through termination or exhaustion, before filing suit. The provision is therefore a statutory prerequisite to filing suit. As Lubertino concluded, the election provision should be construed in accordance with the remainder of the Act, and a failure to comply with the provision should result in a loss of jurisdiction to hear the matter.
Conclusion
The majority interprets the Act as allowing an employee to file suit anytime after waiting 60 days from the date the grievance proceedings are initiated. See Lawson, slip op. at 15. Had the Legislature intended a statute so simple in nature, it would have amended section 554.006(d) by merely extending the 30-day waiting period to 60 days. Instead, the Legislature enacted the election provision with the expectation that employees not file suit while grievance proceedings are pending. Because Lawson did not elect to exhaust or terminate his grievance proceedings before filing suit, he did not comply with section 554.006(d). The trial court, therefore, did not have jurisdiction over Lawson's lawsuit.
I would uphold Lubertino, reverse the order of the trial court, and render judgment sustaining the county's plea to the jurisdiction.
Elsa Alcala
Justice
Panel consists of Chief Justice Radack and Justices Nuchia and Jennings.
En banc consideration was requested on the Court's motion. Tex. R. App. P. 41.2(c).
A majority of the Court voted in favor of en banc consideration of the case.
The en banc Court consists of Chief Justice Radack and Justices Hedges, Taft, Nuchia, Jennings, Keyes, Alcala, Hanks, and Higley.
Justice Jennings, writing for the majority of the en banc Court, joined by Chief Justice Radack and Justices Hedges, Nuchia, and Hanks.
Justice Alcala, dissenting, joined by Justices Taft, Keyes, and Higley.
1.
(a) A public employee must initiate action under the grievance or appeal procedures of the employing state or local government entity relating to suspension or termination of employment or adverse personnel action before suing under this chapter.
(b) The employee must invoke the applicable grievance or appeal procedures not later than the 90th day after the date on which the alleged violation of this chapter:
(1) occurred; or
(2) was discovered by the employee through reasonable diligence.
(c) Time used by the employee in acting under the grievance or appeal procedures is excluded, except as provided by Subsection (d), from the period established by Section 554.005.
(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), 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 the 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. 2003) (emphasis added).
2. 3. 4.