IN THE
TENTH COURT OF APPEALS
No. 10-06-00095-CV
Texas Department of Criminal Justice,
Appellant
v.
Jerry Ray Edgin,
Appellee
From the 12th District Court
Madison County, Texas
Trial Court No. 04-10356-012-10
MEMORANDUM Opinion
Jerry Ray Edgin sued the Texas Department of Criminal Justice for retaliation under Chapter 21 of the Labor Code. In this interlocutory appeal, the TDCJ challenges the trial court’s denial of its plea to the jurisdiction.[1] We affirm.
STANDARD OF REVIEW
A plea to the jurisdiction challenges the trial court’s “power to determine the subject matter of the suit.” Vela v. Waco Indep. Sch. Dist., 69 S.W.3d 695, 698 (Tex. App.—Waco 2002, pet. withdrawn). We review a plea “based on sovereign immunity de novo because the question of whether a court has subject matter jurisdiction is a matter of law.” Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex. 2004); see Vela, 69 S.W.3d at 698. Where “the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the nonmovant.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)). “We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Id.
ISSUES PRESENTED
Contending that Edgin cannot state a claim for retaliation under Chapter 21 of the Labor Code, the TDCJ presents three primary issues purportedly challenging waiver of sovereign immunity: (1) Edgin cannot establish a good faith reasonable belief that discrimination occurred; (2) Edgin did not engage in a “protective activity;” and (3) there is no causation between the “protected activity” and the allegedly adverse action. In a fourth issue, the TDCJ argues that the trial court should have struck the affidavit of Renee Howe as conclusory.
SOVEREIGN IMMUNITY
Unless waived, sovereign immunity shields governmental entities from suit. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003); see also Somervell County Healthcare Auth. v. Sanders, 169 S.W.3d 724, 726 (Tex. App.—Waco 2005, no pet). Chapter 21 of the Labor Code waives immunity as to entities it defines as “employers,” including in relevant part, “a county, municipality, state agency, or state instrumentality...” Tex. Lab. Code Ann. § 21.002(8)(D) (Vernon 2006); see Sauls v. Montgomery County, 18 S.W.3d 310, 315 (Tex. App.—Beaumont 2000, no pet.); see also Dallas/Fort Worth Int’l Airport Bd. v. Funderburk, 188 S.W.3d 233, 235-36 (Tex. App.—Fort Worth 2006, pet. granted, judgm’t vacated w.r.m.); Purdin v. Copperas Cove Econ. Dev. Corp., 143 S.W.3d 290, 293 n.2 (Tex. App.—Waco 2004, pet dism’d). The TDCJ is an employer subject to this waiver of immunity. See Tex. Dep’t of Crim. Justice v. King, No. 10-01-058-CV, 2003 Tex. App. Lexis 10481, at *12 (Tex. App.—Waco Dec. 10, 2003, pet. denied) (mem. op.).
FAILURE TO STATE A CLAIM
In its first, second, and third issues, the TDCJ essentially argues that it is immune from suit because Edgin cannot state a claim of retaliation under Chapter 21 of the Labor Code.
A plea to the jurisdiction is intended to “defeat a cause of action without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (emphasis added). “The pleadings relevant to a review of a plea to the jurisdiction include amended petitions, the plea to the jurisdiction, and responses filed in connection with a defendant’s plea to the jurisdiction.” City of Austin v. Ender, 30 S.W.3d 590, 593 (Tex. App.—Austin 2000, no pet.).
In his administrative complaint, Edgin stated, “I believe I have been discriminated against because of my participation in a protected activity...” This “protected activity” includes submitting a “monthly report outlining the problems in the Maintenance Department” and submitting a “witness statement for a female coworker who was subjected to an inappropriate comment by Warden [Alfred] Janicek,” which arguably constituted sexual harassment. Edgin alleges that, following these events, he was charged with three disciplinary actions, demoted, forced to reapply as a correctional officer, “not accepted” as a correctional officer, administratively separated, and “subjected to harassment” which ultimately “forced [him] to retire.”
Accordingly, Edgin’s petition alleges that “his retirement was forced solely and directly due to retaliatory measures for his following policy and submitting witness statements.” Considering Edgin’s administrative complaint and the relevant pleadings, and construing them in his favor, Edgin alleges that he was retaliated against in violation of the Labor Code for “[opposing] a discriminatory practice.” Tex. Lab. Code Ann. § 21.055 (Vernon 2006); see Miranda, 133 S.W.3d at 228.
Nevertheless, relying on Miranda, the TDCJ attacks Edgin’s ability to establish the elements of his cause of action. In Miranda, the Supreme Court examined the merits of the Mirandas’ claims because they had alleged a violation of the Texas Tort Claims Act, under which immunity from suit and immunity from liability are “co-extensive.” See Miranda, 133 S.W.3d at 224. The Act specifically provides that: “Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter.” Tex. Civ. Prac. & Rem. Code Ann. § 101.025(a) (Vernon 2005) (emphasis added). “This provision effectively creates a situation in which evaluating whether subject matter jurisdiction exists in a given case may require a court to examine the merits of a plaintiff’s claims.” Prairie View A&M Univ. v. Brooks, 180 S.W.3d 694, 703 (Tex. App.—Houston [14th Dist.] 2005, no pet.).[2]
Unlike the TTCA, Chapter 21 does not make immunity dependent on liability. Rather, Chapter 21 waives sovereign immunity where an employee exhausts administrative remedies and where the defendant qualifies as an “employer” as defined by the Labor Code. See Sauls, 18 S.W.3d at 315; see also Funderburk, 188 S.W.3d at 234; Purdin, 143 S.W.3d at 293 n.2; Tex. Lab. Code Ann. § 21.002(8)(D); Pegram v. Honeywell, Inc., 361 F.3d 272, 281 (5th Cir. 2004). Neither requirement is at issue in this appeal.
We consider evidence “when necessary to resolve the jurisdictional issues raised.” Bland, 34 S.W.3d at 555 (emphasis added). This case does not present a situation where we must explore the merits of Edgin’s claims. See State v. Lueck, 212 S.W.3d 630, 637-38 (Tex. App.—Austin 2006, pet. filed). Because no jurisdictional issues exist for our determination, we overrule the TDCJ’s first, second, and third issues. See id. We need not address the TDCJ’s fourth issue. See Tex. R. App. P. 47.1.
The trial court’s judgment is affirmed.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed April 18, 2007
[CV06]
[1] The TDCJ previously removed this case to federal court. The federal court remanded the case to the state court, holding that “Edgin has a claim under Texas law, and not merely a Title VII claim that can proceed in federal court…”
[2] “Miranda thoroughly details the procedure that courts and litigants should follow in examining questions of subject matter jurisdiction under the TTCA.” Prairie View A&M Univ. v. Brooks, 180 S.W.3d 694, 703 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
n style="font-family: 'CG Times', serif"> Appellant’s objection under art. 38.071 did not give the judge even a hint which of the 38.071 requirements were not met. Neither does his brief give this court any information. Article 38.071 contains over 2,100 words and is divided into some 58 sections and subsections. “Shotgun” objections, as this, do not preserve points based on authority which is merely mentioned. Webb v. State, 899 S.W.2d 814, 818 (Tex. App.—Waco 1995, pet. ref’d).
Article 38.071 § 2(a) provides that the recording of a child’s oral statement made before indictment or complaint is admissible if the court determines that the factual issues of identity or actual occurrence were fully and fairly inquired into by a neutral person experienced in child abuse cases.
Sherry Fallon testified that she is an investigator for Child Protective Services, and had been for six years; that she interviewed A.B.; that A.B. told her of the sexual abuse by Appellant of both herself and C.W. Fallon further testified that she was the operator of the video machine in taking the two videotapes; that it was working properly and that the tapes were a fair and accurate description of what took place.
The trial judge committed no error under art. 38.071 § 2(a) in admitting the two videotapes.
Article 38.071 § 5(a)(7) provides:
On the motion of the attorney representing the state or the attorney representing the defendant and on a finding by the trial court that the following requisites have been substantially satisfied, the recording of an oral statement of the child made before a complaint had been filed or an indictment returned charging any person with an offense to which this article applies is admissible if . . . (7) immediately after a complaint was filed or an indictment returned charging the defendant with an offense to which this article applies, the attorney representing the state notified the court, the defendant, and the attorney representing the defendant of the existence of the recording and that may be used at the trial of the offense.
The record reflects that Appellant’s counsel acknowledged at trial that he was provided with the videotapes six or seven months before trial. No error was committed under this section in admitting the two videotapes.
Points 3 and 4 are overruled.
Point 5: “It was error for court to not appoint an expert to assist the defense of the case in violation of art. 26.05"
Article 26.05, Texas Code of Criminal Procedure, authorizes the trial court to “reimburse for reasonable expenses incurred with prior court approval for purposes of investigation and expert testimony.”
Appellant filed a motion for the appointment of an “expert witness” to assist in preparation for defense on November 18, 1995, which was the first day of the trial. The filing of the motion was not timely. Tex. Code Crim. Proc. art. 28.01.
Moreover, Appellant made no preliminary showing that the issue for which he sought expert assistance was likely to be a significant factor at trial. Rey v. State, 897 S.W.2d 333, 339 (Tex. Crim. App. 1995).
Point 5 is overruled. The judgment is affirmed.
FRANK G. McDONALD
Chief Justice (Retired)
Before Chief Justice Davis,
Justice Vance and
Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed February 25, 1998
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