ACCEPTED
01-14-00844-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/21/2015 8:30:10 PM
CHRISTOPHER PRINE
CLERK
N O . 01-14-00844-CV
FILED IN
1st COURT OF APPEALS
In The HOUSTON, TEXAS
9/21/2015 8:30:10 PM
Court of Appeals CHRISTOPHER A. PRINE
Clerk
FIRST DISTRICT OF TEXAS
Houston, Texas
NEIGHBORHOOD CENTERS, INC.,
Appellant,
versus
DOREATHA WALKER,
Cross-Appellant and Appellee.
On appeal from Cause No. 2014-37034 in the
80th District Court, Harris County, Texas
CROSS-APPELLANT/APPELLEE DOREATHA WALKER’S
RESPONSE TO MOTION FOR REHEARING
MULLIN HOARD & BROWN, L.L.P. LORNA L. MCMILLION
P.O. Box 2585 Of the Firm SBN 24086726
Lubbock, Texas 79408 LMCMILLION@MHBA.COM
(806) 765-7491 – Phone
LAWRENCE M. DOSS
(806) 765-0553 – Fax
Of the Firm SBN 24012544
LDOSS@MHBA.COM
ATTORNEYS FOR CROSS-APPELLANT/APPELLEE
September 21, 2015
TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................. i
INDEX OF AUTHORITIES .......................................................................... ii
STATEMENT OF FACTS ............................................................................. 2
ARGUMENT AND AUTHORITIES............................................................. 4
I. Neighborhood Centers’ request for a tunnel-vision analysis of
Section 12.0158 ignores the Legislature’s concurrent amendment
of Section 12.0156, which provides that charter schools are still
only immune from liability to the same extent as public schools ........ 5
A. Sections 12.0156 and 12.0158 of the Education Code, when
construed together, are consistent with this Court’s Opinion...... 6
B. Legislative history indicates that the scope immunity and
liability statutes throughout the Texas Codes was meant to
be expanded rather than limited ................................................... 8
II. The general savings clause of the Code Construction Act prevents
Section 12.1058(c) from extinguishing Walker’s accrued rights and
remedies .............................................................................................. 12
III. Applying Section 12.1058(c) in this case would violate the
Constitutional prohibition against retroactivity .................................. 15
A. The Legislative record is silent as to a compelling public
interest that might justify retroactive application of Section
12.1058(c) ................................................................................... 16
B. Section 12.1058(c) impairs a cause of action and remedial
right available under a statute designed to compel government
compliance with the law ............................................................. 18
C. Application of Section 12.1058 to this appeal would entirely
eliminate Walker’s accrued cause of action and remedy ........... 20
CONCLUSION AND PRAYER .................................................................. 23
APPENDICES .............................................................................................. 26
i
INDEX OF AUTHORITIES
Cases Page(s)
City of Houston v. Houston Firefighters’ Relief & Ret. Fund,
196 S.W.3d 271 (Tex. App.—Houston [1st Dist.] 2006,
no pet.) ................................................................................................ 14
City of Houston v. Levingston,
221 S.W.3d 204 (Tex. App.—Houston [1st Dist.] 2006,
no pet.) .......................................................................................... 18–19
City of Rockwall v. Hughes,
246 S.W.3d 621 (Tex. 2008) ................................................................ 6
City of Tyler v. Likes,
962 S.W.2d 489 (Tex. 1997) ........................................................ 20, 21
Dallas Cnty. Cmty. Coll. Dist. v. Bolton,
185 S.W.3d 868 (Tex. 2005) .............................................................. 13
Garrett Operators, Inc. v. City of Houston,
461 S.W.3d 585 (Tex. App.—Houston [1st Dist.] 2015,
no pet.) ................................................................................................ 16
Kaiser Aluminum v. Bonjorno,
494 U.S. 827 (1990) ........................................................................... 22
Knight v. Int’l Harvester Credit Corp.,
627 S.W.2d 382 (Tex. 1982) .............................................................. 13
Kroger Co. v. Keng,
23 S.W.3d 347 (Tex. 2000) .................................................................. 5
Landgraf v. USI Film Products,
511 U.S. 244 (1994) ..................................................................... 15, 22
ii
INDEX OF AUTHORITIES, CONT.
Cases cont. Page(s)
Neighborhood Ctrs., Inc. v. Walker,
No. 01-14-00844-CV, 2015 WL 4593436 (Tex. App.
—Houston [1st Dist.] July 30, 2015, no. pet. h.) ....................... 2, 6, 10
Quick v. City of Austin,
7 S.W.3d 109 (Tex. 1998) ........................................................... passim
Robinson v. Crown Cork & Seal Co., Inc.,
335 S.W.3d 126 (Tex. 2010) ....................................................... passim
Tex. Mut. Ins. Co. v. Ruttiger,
381 S.W.3d 430 (Tex. 2012) .................................................................. 6
Sw. Bell Tel. Co. v. City of Kountze,
543 S.W.2d 871 (Tex. Civ. App.—Beaumont 1976,
no writ) ............................................................................................... 21
Union Carbide Corp. v. Synatzske,
438 S.W.3d 39 (Tex. 2014) ...................................................... 6, 17, 19
Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia,
324 S.W.3d 544 (Tex. 2010) .............................................................. 20
Constitutional Provisions
U.S. CONST. art I, § 9, cl. 3 ..................................................................... 5, 15
TEX. CONST. art I, § 16 .......................................................................... 5, 15
Statutes
TEX. EDUC. CODE ANN. § 12.1056 (West 2012) ............................................. 6
TEX. EDUC. CODE ANN. § 12.1056 (West 2012 & Supp. 2015) ............ passim
iii
INDEX OF AUTHORITIES, CONT.
Statutes (cont.) Page(s)
TEX. EDUC. CODE ANN. § 12.1058 (Supp. 2015) ................................... passim
TEX. GOV’T CODE ANN. § 311.002 (West 2013) .......................................... 13
TEX. GOV’T CODE ANN. § 311.022 (West 2013) .......................................... 12
TEX. GOV’T CODE ANN. § 311.023 (West 2013) ........................................ 6, 8
TEX. GOV’T CODE ANN. § 311.025(b) (West 2013) ....................................... 7
TEX. GOV’T CODE ANN. § 311.031 (West 2013) ...................................... 4, 13
TEX. GOV’T CODE ANN. § 554.001 et seq. (West 2013) ........................... 2, 19
Legislative Materials
1983 Tex. Gen. Laws 4751 ........................................................................... 19
1993 Tex. Gen. Laws 609 ............................................................................. 19
C.S.H.B. 1170, 84th Leg., R.S. (2015) ..................................................... 3, 11
H. Rep. on H.B. 1170 (2015) ........................................................................ 11
H.B. 1075, 68th Leg., R.S. (1983) ................................................................ 19
H.B. 1170, 84th Leg., R.S. (2015) ................................................................ 11
H.B. 1171, 84th Leg., R.S. (2015) .......................................................... 3, 8, 9
History of House Bill 1170, Texas Legislature Online,
http://www.legis.state.tx.us/BillLookup/history.aspx?LegSess
=84R&Bill=HB1170 (last visited September 21, 2015) .............................. 11
iv
INDEX OF AUTHORITIES, CONT.
Legislative Materials (cont.) Page(s)
S. Rep. on C.S.H.B. 1170 (substituted on May 20, 2015) ...................... 10, 17
S.B. 248, 73d Leg., R.S. (1993) .................................................................... 19
SRC-DDS H.B. 1171 84(R) (2015) ................................................................ 9
v
N O . 01-14-00844-CV
In The
Court of Appeals
FIRST DISTRICT OF TEXAS
Houston, Texas
NEIGHBORHOOD CENTERS, INC.,
Appellant,
versus
DOREATHA WALKER,
Cross-Appellant and Appellee.
On appeal from Cause No. 2014-37034 in the
80th District Court, Harris County, Texas
CROSS-APPELLANT/APPELLEE DOREATHA WALKER’S
RESPONSE TO MOTION FOR REHEARING
Pursuant to Tex. R. App. P. 10.1(b), Cross-Appellant/Appellee
Doreatha Walker (“Walker”) files this Response to Appellant Neighborhood
Centers, Inc.’s (“Neighborhood Centers”) Motion for Rehearing, requests that
the Court deny said Motion, and respectfully shows the court as follows:
1
STATEMENT OF FACTS
On July 30, 2015, this Court issued its opinion overruling
Neighborhood Centers’ only issue on appeal—the denial of its plea to the
jurisdiction for Walker’s claim under Section 554.001 et seq. of the Texas
Government Code (the “Whistleblower Protection Act”). See Neighborhood
Ctrs., Inc. v. Walker, No. 01-14-00844-CV, 2015 WL 4593436 (Tex. App.—
Houston [1st Dist.] July 30, 2015, no. pet. h.) (the “Opinion”). In doing so,
this Court held the Act’s provisions waiving sovereign immunity for local
government entities conferred subject-matter jurisdiction upon the trial court
and prevented the dismissal of Walker’s cause of action. Id. at *4.
This Court noted that the Texas Education Code expressly waives an
open-enrollment charter school’s immunity from liability “to the same extent
as a public school district.” See id. Because a “public school district” falls
within the statutory definition of a “local governmental entity” covered by the
Whistleblower Protection Act, this Court reasoned the Legislature’s waiver of
immunity for claims made by “public employees” of “public school districts”
rendered it “beyond doubt” that the same is true for claims made by
employees of an open-enrollment charter school. See id. The Court correctly
2
concluded that an open-enrollment charter school constitutes a “local
governmental entity” subject to the Whistleblower Protection Act.
While this appeal was pending, the Legislature introduced two bills
amending portions of the Texas Education Code that are relevant to this
appeal and which Neighborhood Centers now argues render the
Whistleblower Protection Act inapplicable to open-enrollment charter
schools.
The first bill, H.B. 1170 added a new Section, 12.1058, entitled
“Applicability to Other Laws.” C.S.H.B. 1170, 84th Leg., R.S. (2015). The
second bill, H.B. 1171 amended previous Section 12.1056, now entitled
“Immunity from Liability and Suit.” H.B. 1171, 84th Leg., R.S. (2015). These
bills became effective on June 19, 2015 and June 18, 2015, respectively,
which was after oral arguments were heard in this case but before this Court
issued its Opinion.
Neighborhood Centers moved for rehearing on August 14, 2015,
arguing that newly-enacted Section 12.0158(c) renders this Court’s opinion
invalid because the Legislature indirectly repealed waivers of immunity under
the Whistleblower Protection Act.
3
ARGUMENT AND AUTHORITIES
In light of these amendments to the Education Code and their June
2015 effective dates, Neighborhood Centers asks this Court to determine
whether the Legislature abrogated subject-matter jurisdiction in this case. It
has not for three reasons.
First, the plain language of Sections 12.056 and 12.058, when
construed together, reveal that charter schools continue to retain immunity
from liability and suit “to the same extent as a school district” and thus, the
Whistleblower Protection Act and subject matter-jurisdiction thereunder are
unaffected by the amendments.
Second, even if Section 12.018(c) can be read to indirectly repeal a
cause of action and waiver of immunity under the Whistleblower Protection
Act, the Legislature did not intend to circumvent the default savings clause of
the Texas Code Construction Act, which provides that statutory amendments
do not deprive litigants in pending cases from accrued rights or remedies. See
TEX. GOV’T CODE ANN. § 311.031(a) (West 2013).
Third, even if the general savings clause does not apply, application of
Section 12.1058(c) to this appeal would deprive Walker of her accrued rights
and remedies in direct violation of the constitutional prohibition against
4
retroactive legislation. See U.S. CONST. art I, § 9, cl. 3; TEX. CONST. art I,
§ 16; Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 139 (Tex. 2010)
(“The presumption is that a retroactive law is unconstitutional without a
compelling justification [. . .].”
For these reasons, this Court should deny Neighborhood Centers’
Motion for Rehearing.
I. Neighborhood Centers’ request for a tunnel-vision analysis of
Section 12.0158 ignores the Legislature’s concurrent amendment of
Section 12.0156, which provides that charter schools are still only
immune from liability to the same extent as public schools.
Contrary to established rules of statutory construction, Neighborhood
Centers asks this Court to construe solely Section 12.1058’s provisions
regarding applicability to other laws as indirectly repealing the applicability
of the Whistleblower Protection Act’s waiver of immunity to open-enrollment
charter schools. But see Kroger Co. v. Keng, 23 S.W.3d 347, 351 (Tex. 2000)
(noting that repeal by implication is disfavored under Texas law). In asking
the Court for a tunnel-vision interpretation of immunity under the new statute,
Neighborhood Centers fatally ignores the Legislature’s concurrent
amendment of Section 12.1056, which expressly addresses immunity for
open-enrollment schools.
5
A. Sections 12.0156 and 12.0158 of the Education Code, when
construed together, are consistent with this Court’s Opinion.
In construing a statute, the court’s “primary objective is to ascertain the
Legislature’s intent, and [it does] that, if possible, through the words the
Legislature selected.” City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.
2008); Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 51 (Tex. 2014).
The court derives the Legislature’s intent “from the statute as a whole, not by
reading individual provisions in isolation.” Tex. Mut. Ins. Co. v. Ruttiger, 381
S.W.3d 430, 454 (Tex. 2012).
Amended Section 12.1056 still provides, consistent with this Court’s
Opinion, that an open-enrollment charter school is immune from liability “to
the same extent as a public school district.” Neighborhood Ctrs., 2015 WL
4593436, at *4 (citing TEX. EDUC. ANN. § 12.1056(a) (West 2012)). The only
substantive additions to this Section are that it now states “an open-enrollment
charter school or charter holder is immune from liability and suit to the same
extent as a school district.” (additions in italics). See § 12.1056(a); App’x A.
Any analysis of Section 12.0158(c)’s provisions relating to “other
laws” must necessarily be read in light of Section 12.0156’s “same extent”
language. TEX. GOV’T CODE § 311.023 (“In construing a statute, whether or
6
not the statute is considered ambiguous on its face, a court may consider [. . .]
former statutory provisions [and] consequences of a particular construction.”)
The allegedly offending passage of Section 12.0158(c) states:
(c) Notwithstanding Subsection (a) or (b), an open-enrollment
charter school operated by a tax exempt entity as described by
Section 12.101(a)(3) is not considered to be a political
subdivision, local government, or local governmental entity
unless the applicable statute specifically states that the statute
applies to an open-enrollment charter school.
TEX. EDUC. CODE § 12.0158(c). Note that the subsection references “the
applicable statute.” For purposes of the application of immunity and liability
to other laws, the applicable statute is Section 12.1056(a). Therefore, the
scope of immunity or liability for open-enrollment charter schools under
other laws via Section 12.0158, must be determined to the same extent as
immunity or liability applies to public school districts pursuant to Section
12.0156. Compare § 12.0158(c), with § 12.0156(a).
To the extent Neighborhood Centers may have argued (though it did
not) that these two Sections are irreconcilable, this Court must attempt to
harmonize them. TEX. GOV’T CODE § 311.025(b) (“[I]f amendments to the
same statute are enacted at the same session of the legislature, one
amendment without reference to another, the amendments shall be
harmonized, if possible, so that effect may be given to each [. . .].”).
7
Contrary to Neighborhood Centers’ assertion that Section 12.1058 was
enacted to “clarify[ ] that there is no jurisdiction over an open-enrollment
charter school under the Whistleblower Act,” the statutory construction of
Sections 12.0158 and 12.1056 weigh against this assertion. See Mot. for
Reh’g, at 6. Following this same analysis, the Legislature did not enact
Section 12.1058 with the intent to “strip[ ] the court of jurisdiction” in this
case or render the Whistleblower Protection Act “[in]applicable to open-
enrollment charter schools.” See Mot. for Reh’g, at 6–7. The interpretation
suggested by Neighborhood Centers would render Section 12.1056 to be
surplussage. Therefore, this Court’s interpretation of the statute was accurate
and should not be modified.
B. Legislative history indicates that the scope immunity and liability
statutes throughout the Texas Codes was meant to be expanded
rather than limited.
The circumstances surrounding the passage of H.B. 1170 and H.B.
1171 and their respective legislative histories are particularly instructive in
determining the Legislature’s intent, and this Court may use this context to
aid its interpretation. TEX. GOV’T CODE § 311.023 (“In construing a statute,
whether or not the statute is considered ambiguous on its face, a court may
8
consider among other matters the [. . .] circumstances under which the statute
was enacted [and] legislative history.”)
The Senate Research Center’s published analysis of H.B. 1171 explains
that Section 12.1056’s provisions regarding immunity from liability were
updated to reflect current appellate court decisions applying immunity to
charter schools to the same extent as public school districts. SRC-DDS H.B.
1171 84(R), at 1 (2015). The Author’s Statement of Intent clarifies:
Currently, open-enrollment charter schools enjoy the same
immunity from liability that public schools do; however, the law
is less clear on the degree to which charters are immune from suit
or subject to liability limits under the Texas Torts Claims Act.
Recently, the Dallas Court of Appeals ruled that charters should
be treated the same as public schools with regard to immunity
from suit. Because this ruling only applies to that court’s
jurisdiction, however, charter schools will continue to fight costly
legal battles to dismiss suits that should not have been filed in the
first place.
H.B. 1171 addresses the uncertainties surrounding charter
schools’ legal status by defining them as public schools for
purposes of immunity from both liability and suit. The bill also
clarifies that charter schools are eligible for the cap on liabilities
under the Texas Torts Claims Act. These provisions will keep
schools from expending their limited budgets on expensive court
costs, and ensure that public money meant for education remains
in the classrooms.
Id. at 1 (emphasis added); See App’x. B. As this analysis states, Section
12.0156 expands the application of immunity from liability and suit to charter
9
schools by ensuring they are clearly defined as public schools. Such
interpretation is consistent with this Court’s opinion holding the same.
Neighborhood Ctrs., 2015 WL 4593436, at *4.
The Legislature provides no similar analysis for H.B. 1070. Rather,
than addressing liability concerns, H.B. 1070 was enacted to permit charter
schools to enter into certain collective bargaining and risk management
arrangements, in the same manner as public school districts, in order to
“strengthen the districts’ bargaining positions for purchasing materials and
contracting for services, and dilute the unforeseen costs of insurance claims.”
See S. Rep. on C.S.H.B. 1170, at 1 (substituted on May 30, 2015).
In keeping with the Legislature’s intent to give charter schools and their
employees the same benefits as public schools, subsection (a) of Section
12.1058 establishes that an open-enrollment charter school constitutes (1) a
“local government” under the Interlocal Cooperation Act, (2) a “local
government” under self-insurance statutes applicable to governmental units,
and (3) a “political subdivision” under the Texas Political Subdivision
Employees Uniform Group Benefits Act. See TEX. EDUC. CODE § 12.1058(a).
Subsection (b) authorizes an extension of workers’ compensation
benefits to employees of charter schools “under Labor Code provisions
10
relating to workers’ compensation insurance coverage for employees of
political subdivisions.” See H. Rep. on H.B. 1170, at 1 (2015).
In a last-minute amendment to H.B 1170, the Legislature added
subsection (c), providing that a charter school otherwise does not constitute a
political subdivision, local government, or local governmental entity, “unless
the applicable statute specifically states that the statute applies to an open-
enrollment charter school.” TEX. EDUC. CODE § 12.1058(c).1
H.B. 1170’s legislative history neither expresses no intent to
abrogate immunity provisions in other sections of Texas Codes.
Rather, H.B. 1170 adds benefits and bargaining measures that were
previously unavailable to charter schools, and Section 12.1058(c) was likely
added to clarify in what circumstances additional benefit, bargaining, and
insurance provisions in the Texas Codes would apply to open-enrollment
charter schools.
An analysis of the plain language of Sections 12.1056(a) and
12.0158(c) as a whole and a review their concurrent legislative histories
demonstrates that Neighborhood Centers is still a “local government entity”
1
Compare H.B. 1170, 84th Leg., R.S. (filed on February 5, 2015), with C.S.H.B. 1170,
84th Leg., R.S. (substituted for H.B. 1170 on May 27, 2015); see also History of House
Bill 1170, Texas Legislature Online, http://www.legis.state.tx.us/BillLookup/history.
aspx?LegSess=84R&Bill=HB1170 (last visited Sept. 21, 2015).
11
pursuant to the Whistleblower Protection Act despite recent statutory
amendments. As such, this Court and the trial court have subject-matter
jurisdiction over Walker’s claim, and this Court’s Opinion should stand.
II. The general savings clause of the Code Construction Act prevents
Section 12.1058(c) from extinguishing Walker’s accrued rights and
remedies.
Neighborhood Centers argues that Walker has been deprived of her
cause of action under the Whistleblower Protection Act because Section
12.1058(c) now prevents this Court from treating an open-enrollment charter
school as a “local governmental entity” under it. See Mot. for Reh’g, at 3.
Neighborhood Centers is wrong.
Assuming, arguendo, that H.B. 1070 indirectly repealed Walker’s cause
of action under the Whistleblower Protection Act, the statute only applies
prospectively and is not applicable to this appeal in which Walker’s rights had
accrued prior to Section 12.1058(c)’s enactment. See TEX. GOV’T CODE
§ 311.022 (“A statute is presumed to be prospective in its operation unless
expressly made retrospective”.)
Walker does not dispute that “when a right or remedy is dependent on a
statute, the unqualified repeal of that statute operates to deprive the party of
all such rights that have not become vested or reduced to final judgment.” See
12
Quick v. City of Austin, 7 S.W.3d 109, 128 (Tex. 1999) (op. on reh’g). In such
cases, “if final relief has not been granted before the repeal goes into effect,
final relief cannot be granted thereafter, even if the cause is pending on
appeal.” Id. (citing Knight v. Int’l Harvester Credit Corp., 627 S.W.2d 382,
284 (Tex. 1982)). But the Texas Supreme Court has noted that this common-
law rule of abatement “may be modified by a specific savings clause in the
repealing legislation or by a general savings statute limiting the effect of
repeals.” Quick, 7 S.W.3d at 128. The savings statute is codified in the Texas
Code Construction Act and applies to the Texas Education Code. TEX. GOV’T
CODE §§ 311.002, 311.031; see Dallas Cnty. Cmty. Coll. Dist. v. Bolton, 185
S.W.3d 868, 873–74 (Tex. 2005) (using the Code Construction Act to
interpret a provision of the Education Code).
This general savings statute provides, in pertinent part, that repeal of a
statute does not affect (1) the “prior operation of the statute or any prior
action taken under it”; (2) “any right [. . .] obligation [. . .] or liability
previously acquired, accrued, accorded, or incurred under it”; or (3) any [. . .]
proceeding, or remedy” concerning any “obligation, liability, penalty, [. . .] or
punishment.” TEX. GOV’T CODE § 311.031(a). Such a “proceeding[ ] or
remedy may be instituted, continued, or enforced [as if the statute] had not
13
been repealed or amended.” See id. The Texas Supreme Court has explained
that the general savings statute “indicates a general legislative policy that the
repeal of any statute shall not affect the prior operation of that statute” or
“extinguish any liability incurred or affect any right accrued or claim arising
before the repeal takes effect.” Quick, 7 S.W.3d at 130.
Reviewing courts must presume that the general savings statute applies
“unless a contrary legislative intent is shown by clear expression or necessary
implication.” Id. Similarly, this Court has relied upon a savings clause “to
avoid a retroactive application of a statute if the newly enacted statute repeals
a cause of action or revokes a special remedy.” City of Houston v. Houston
Firefighters’ Relief & Ret. Fund, 196 S.W.3d 271, 283 (Tex. App.—Houston
[1st Dist.] 2006, no pet.).
In Quick, the Texas Supreme Court held that under the general savings
clause, a recent repeal did not affect the prior operation of a statute or deprive
the court of subject-matter jurisdiction to consider the party’s claims, where
the Legislature nowhere stated that the savings clause did not apply. Quick, 7
S.W.3d at 130. The same rationale applies in this case.
In passing the amended H.B. 1170, the Legislature expressed no
contrary legislative intent to overcome the presumption that the savings
14
clause applies, nor is there any necessary implication that Section 12.1058
must be applied retroactively.2 Contrary to Neighborhood Centers’ assertion
that amendment applies to this current appeal, neither the statute
nor its legislative history include instruction that the amendment
reaches back to claims pending before the statute’s effective date.
See Mot. for Reh’g, at 5. Nor is there any indication that the
general savings statute cannot be applied. In the absence of contrary
legislative intent, this Court must presume the savings clause applies and
conclude that Section 12.1058(c) does not affect any accrued right or remedy
under the prior operation of the Whistleblower Protection Act. As such,
Neighborhood Centers’ Motion for Rehearing should be denied.
III. Applying Section 12.1058(c) in this case would violate the
Constitutional prohibition against retroactivity.
Even if the Legislature did intend to circumvent the general savings
statute, Section 12.1058(c) cannot deprive Walker of her remaining cause of
action without violating the United States and Texas constitutional
prohibitions against retroactive legislation. See U.S. CONST. art I, § 9, cl. 3;
TEX. CONST. art I, § 16.
2See Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994) (noting that when
a bill takes effect upon enactment, courts must utilize “ordinary judicial
principles concerning the application of new rules to pending cases”).
15
“Laws are deemed retrospective and within the constitutional
prohibition” if they retrospectively “destroy or impair[ ] vested rights.”
Robinson, 335 S.W.3d at 139–40 (internal quotation omitted). A statute that
“takes away or impairs vested rights acquired under existing laws, or creates a
new obligation [. . .] in respect to transactions or considerations already past”
must be deemed impermissibly retroactive. Id. (internal quotation omitted).
In determining whether a statute violates the prohibition against
retroactivity, courts consider three factors as set forth by the Texas Supreme
Court in Robinson: (1) the nature and strength of the public interest served by
the statute as evidenced by the Legislature’s factual findings; (2) the nature of
the prior right impaired by the statute; and (3) the extent of the impairment.
Id. at 145. Each of these factors weighs against the application of Section
12.1058(c) in the manner suggested by Neighborhood Centers. Cf. Robinson,
335 S.W.3d at 145–46.
A. The Legislative record is silent as to a compelling public interest
that might justify retroactive application of Section 12.1058(c).
Courts examine the first Robinson factor—the nature and strength of
the public interest served by the statute—based on the Legislature’s factual
findings. Id. at 145; Garrett Operators, Inc. v. City of Houston, 461 S.W.3d
585, 595 (Tex. App.—Houston [1st Dist.] 2015, no pet.). The constitutional
16
prohibition against retroactive laws “preempt[s] this weighing of interests
absent compelling reasons.” Robinson, 335 S.W.3d at 150 (“Indeed, it is
precisely because retroactive rectification of perceived injustice seems so
reasonable and even necessary, especially when there are few to complain,
that the constitution prohibits it.”).
Compelling interests, then, can only be demonstrated by specific
findings by the Legislature. Compare id. at 149 (holding retroactive
application of a statute unconstitutional where the Legislature’s lack of
findings on the extent of a generalized benefit did not amount to a compelling
interest even though the benefit could be inferred from the record), with
Union Carbide, 438 S.W.3d at 57 (permitting retroactive application only
where “[t]he Legislature provided extensive findings to support [the statute’s]
enactment and its effects.”).
As explained above, Section 12.1058 was designed to permit open-
enrollment charter schools to enter into certain collective-bargaining and risk-
management arrangements. See S. Rep. on C.S.H.B. 1170, at 1 (substituted on
May 20, 2015). In the absence of legislative findings on this objective, the
record is silent as to the extent of the intended benefits of Section 12.1058 as
a whole. See Robinson, 335 S.W.3d at 149.
17
More importantly, nothing suggests that the language in subsection
(c)—the portion that indirectly affects the Whistleblower Protection Act—
was designed to serve any public interest by repealing a cause of action or
waiver of immunity under the Act. Maintaining an established cause of action
enjoys greater deference than clarifying the impact of unrelated legislation.
Id. at 148 (noting that a choice-of-law amendment extinguished a cause of
action “indirectly,” and that “[a]n interest in maintaining an established
common-law cause of action is greater than an interest in choice-of-law
rules”).
Because the record is silent as to the extent of benefits of Section
12.1058 and as to any public interest that might be served by repealing
waivers of immunity under the Whistleblower Protection Act, no compelling
interest justifies retroactive application of the statute. Cf. id.
B. Section 12.1058(c) impairs a cause of action and remedial right
available under a statute designed to compel government
compliance with the law.
Turning to the second Robinson factor, the nature of Walker’s affected
interest arises from a remedial statute “designed to enhance openness in
government and to compel the government’s compliance with law by
protecting those who inform authorities of wrongdoing.” City of Houston v.
18
Levingston, 221 S.W.3d 204, 218 (Tex. App.—Houston [1st Dist.] 2006, no
pet.) (citations omitted). The Whistleblower Protection Act was enacted over
thirty years ago to protect public employees and to secure lawful conduct of
state and local governmental entities, including public school districts. See
id.3 The Legislature expressed no desire to disturb these significant and well-
established objectives.
Additionally, Walker had a well-settled expectation that the rule of law
that permitting her recovery would not be changed after she filed suit. Cf.
Robinson, 335 S.W.3d at 148. (“The Robinsons could well have expected
[. . .] that a rule of law that permitted their recovery [. . .] would not be
changed after they had filed suit to abrogate their claim.”). Walker’s rights
not only existed but had also accrued prior to the enactment of Section
12.1058(c).
As such, this appeal is distinguishable from cases where retroactive
application was allowed for statutes affecting only remedial rights. See, e.g.,
Union Carbide, 438 S.W.3d at 59 (“We fail to see how [the plaintiffs]
3
See also H.B. 1075, 68th Leg., R.S., ch. 832, § 3 (1983), 1983 Tex. Gen. Laws 4751,
4752, repealed by S.B. 248, 73d Leg., R.S., ch. 268, §§ 1, 47, (1993), 1993 Tex. Gen.
Laws 609, 986 (codified at TEX. GOV’T CODE § 554.001–09). That this appeal was taken
from a ruling on a plea to the jurisdiction and stayed before Walker could discover
additional facts to support the merits of her claim should not affect this Court’s inquiry.
19
reasonably could have had settled expectations that the Legislature would not
change the requirements for a wrongful death lawsuit [. . .] when they have
not demonstrated that they were contemplating such a suit before Chapter 90
became effective.”); City of Tyler v. Likes, 962 S.W.2d 489, 502 (Tex. 1997)
(holding that a statute was not unconstitutionally retroactive when the
plaintiff had two months to sue before it became effective).
C. Application of Section 12.1058 to this appeal would entirely
eliminate Walker’s accrued cause of action and remedy.
Finally, with respect to the third Robinson factor, Section 12.1058(c)
would not merely “impact” Walker’s accrued rights and remedies—it would
impermissibly eliminate them altogether. See Robinson, 335 S.W.3d at 145;
Quick, 7 S.W.3d at 140. According to Neighborhood Centers, this factor does
not implicate the constitutional prohibition against retroactivity because the
effect may be viewed as partly jurisdictional in nature. See Mot. for Reh’g,
at 7.
It is true that the general rule prohibiting retroactive legislation does not
ordinarily apply to “procedural, remedial, or jurisdictional statutes, because
such statutes typically do not affect a vested right.” Univ. of Tex. Sw. Med.
Ctr. at Dallas v. Arancibia, 324 S.W.3d 544, 547 (Tex. 2010) (emphasis
added). But this rule does not apply if the amendment effectively “bar[s] all
20
remedy,” takes away the remedy altogether, or encumbers it with conditions
that would render it “useless or impracticable to pursue.” See Quick, 7 S.W.3d
at 140.
A statute that merely regulates a remedy or proscribes a mode or time
of proceeding may fairly be applied in pending cases initiated before the
effective date. Id. For example, “[t]he Legislature can affect a remedy by
providing a shorter limitations period for an accrued cause of action without
violating the retroactivity provision of the Constitution, if it affords a
reasonable time or fair opportunity to preserve a claimant’s rights under the
former law.” Id.; see Sw. Bell Tel. Co. v. City of Kountze, 543 S.W.2d 871,
874–75 (Tex. Civ. App.—Beaumont 1976, no writ) (applying statute granting
agency exclusive jurisdiction over claim pending on interlocutory appeal, and
requiring trial court to dismiss suit because the statute did not “destroy the
rights of plaintiff; it simply [took] away from the trial court the jurisdiction to
adjudicate the question and conferred the exclusive jurisdiction upon another
tribunal [. . .]”). But laws affecting a remedy are unconstitutionally retroactive
if “the remedy is entirely taken away.” Likes, 962 S.W.3d at 502 (emphasis in
original, internal quotation omitted).
21
Because Neighborhood Centers’ suggested reading of Section
12.1058(c) effectively repeals both an accrued cause of action and waiver of
immunity under the Whistleblower Protection Act, retroactive application of
the statute would be unconstitutional.
In the end, each of these factors is designed to ensure that new laws are
applied in a manner consistent with principles of fairness and reasonable
expectations of the parties. As the United States Supreme Court has held:
Elementary considerations of fairness dictate that individuals
should have an opportunity to know what the law is and to
conform their conduct accordingly; settled expectations should
not be lightly disrupted. For that reason, the principle that the
legal effect of conduct should ordinarily be assessed under the
law that existed when the conduct took place has timeless and
universal appeal.
Landgraf, 511 U.S. at 265 (quoting Kaiser Aluminum v. Bonjorno, 494 U.S.
827, 855 (1990) (Scalia, J., concurring)).
Because fairness, equity, and the applicable factors prevent the
retroactive application of Texas Education Code Section 12.1058(c) in a
manner that deprives Walker of accrued rights and remedies, jurisdiction
remains. As such, Neighborhood Centers’ motion for rehearing should be
denied.
22
CONCLUSION AND PRAYER
The general savings statute of the Code Construction Act preserves the
prior operation of the Whistleblower Protection Act and the rights and
remedies that accrued thereunder prior to the enactment of Section
12.1058(c). Regardless of this provision, retroactive application of Section
12.1058(c) would be unconstitutional. Therefore, this Court had subject
matter jurisdiction when it issued its opinion: its judgment should stand.
Accordingly, Cross-Appellee Doreatha Walker requests that the Court
deny Appellant Neighborhood Centers, Inc.’s Motion for Rehearing. Walker
prays for any additional or alternative relief to which she may be entitled.
Respectfully Submitted,
MULLIN HOARD & BROWN, L.L.P.
P.O. Box 2585
Lubbock, Texas 79408-2585
(806) 765-7491 – Phone
(806) 765-0553 – Fax
LMCMILLION@MHBA.COM
LDOSS@MHBA.COM
By: /s/ Lorna L. McMillion
Lorna L. McMillion
SBN 24086726
Lawrence M. Doss
SBN 24012544
ATTORNEYS FOR CROSS-APPELLANT/
APPELLEE DOREATHA WALKER
23
CERTIFICATE OF COMPLIANCE
I do hereby certify that the relevant contents of this document consist of
4,461 words, in compliance with TEX. R. APP. P. 9.4, and this document
complies with the typeface requirements of TEX. R. APP. P. 9.4(e) because it
has been prepared in a proportionally spaced typeface using Microsoft Word
2013 in 14 point Times New Roman font.
By: /s/ Lorna L. McMillion
Lorna L. McMillion
24
CERTIFICATE OF SERVICE
I further certify that on September 21, 2015, a true and correct copy of
the foregoing document was sent to all counsel of record as indicated below:
Linda P. Wills
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER, L.L.P.
909 Fannin St., Ste. 3300
Houston, TX 77010
Telephone: 713-353-2000
Facsimile: 713-785-7780
linda.wills@wilsonelser.com
By: /s/ Lorna L. McMillion
Lorna L. McMillion
25
EXHIBIT "A"
H.B.ANo.A1171
1 AN ACT
2 relating to the applicability of certain immunity and liability
3 laws to open-enrollment charter schools.
4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
5 SECTIONA1.AASection 12.1056, Education Code, is amended to
6 read as follows:
7 Sec.A12.1056.AAIMMUNITY FROM LIABILITY AND SUIT. (a) In
8 matters related to operation of an open-enrollment charter school,
9 an open-enrollment charter school or charter holder is immune from
10 liability and suit to the same extent as a school district, and the
11 [its] employees and volunteers of the open-enrollment charter
12 school or charter holder are immune from liability and suit to the
13 same extent as school district employees and volunteers. A member
14 of the governing body of an open-enrollment charter school or of a
15 charter holder is immune from liability and suit to the same extent
16 as a school district trustee.
17 (b)AAAn open-enrollment charter school is a governmental
18 unit as defined by Section 101.001, Civil Practice and Remedies
19 Code, and is subject to liability only as provided by Chapter 101,
20 Civil Practice and Remedies Code, and only in the manner that
21 liability is provided by that chapter for a school district.
22 (c)AAAn open-enrollment charter school is a local government
23 as defined by Section 102.001, Civil Practice and Remedies Code,
24 and a payment on a tort claim must comply with Chapter 102, Civil
1
H.B.ANo.A1171
1 Practice and Remedies Code.
2 (d)AAAn open-enrollment charter school is a local
3 governmental entity as defined by Section 271.151, Local Government
4 Code, and is subject to liability on a contract as provided by
5 Subchapter I, Chapter 271, Local Government Code, and only in the
6 manner that liability is provided by that subchapter for a school
7 district.
8 SECTIONA2.AAThis Act takes effect immediately if it receives
9 a vote of two-thirds of all the members elected to each house, as
10 provided by Section 39, Article III, Texas Constitution. If this
11 Act does not receive the vote necessary for immediate effect, this
12 Act takes effect September 1, 2015.
2
H.B.ANo.A1171
______________________________ ______________________________
AAAAPresident of the Senate Speaker of the HouseAAAAAA
I certify that H.B. No. 1171 was passed by the House on May 8,
2015, by the following vote:AAYeas 140, Nays 0, 1 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 1171 on May 29, 2015, by the following vote:AAYeas 143, Nays 1,
2 present, not voting.
______________________________
Chief Clerk of the HouseAAA
I certify that H.B. No. 1171 was passed by the Senate, with
amendments, on May 27, 2015, by the following vote:AAYeas 31, Nays
0.
______________________________
Secretary of the SenateAAA
APPROVED: __________________
AAAAAAAAAAAAAAAAADateAAAAAAA
AAAAAAAAA __________________
AAAAAAAAAAAAAAAGovernorAAAAAAA
3
EXHIBIT "B"
BILL ANALYSIS
Senate Research Center H.B. 1171
84R7567 CAE-F By: Farney et al. (Lucio)
Education
5/13/2015
Engrossed
AUTHOR'S / SPONSOR'S STATEMENT OF INTENT
Currently, open-enrollment charter schools enjoy the same immunity from liability that public
schools do; however, the law is less clear on the degree to which charters are immune from suit
or subject to liability limits under the Texas Torts Claims Act. Recently, the Dallas Court of
Appeals ruled that charters should be treated the same as public schools with regard to immunity
from suit. Because this ruling only applies to that court's jurisdiction, however, charter schools
will continue to fight costly legal battles to dismiss suits that should not have been filed in the
first place.
H.B. 1171 addresses the uncertainties surrounding charter schools' legal status by defining them
as public schools for purposes of immunity from both liability and suit. The bill also clarifies that
charter schools are eligible for the cap on liabilities under the Texas Torts Claims Act. These
provisions will keep schools from expending their limited budgets on expensive court costs, and
ensure that public money meant for education remains in the classrooms.
H.B. 1171 amends current law relating to the applicability of certain immunity and liability laws
to open-enrollment charter schools.
RULEMAKING AUTHORITY
This bill does not expressly grant any additional rulemaking authority to a state officer,
institution, or agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 12.1056, Education Code, as follows:
Sec. 12.1056. New heading: IMMUNITY. (a) Creates this subsection from existing text.
Provides that an open-enrollment charter school or charter holder, in matters related to
operation of an open-enrollment charter school, is immune to the same extent as a school
district, and the employees and volunteers of the open-enrollment charter school or
charter holder are immune to the same extent as school district employees and volunteers,
rather than providing that an open-enrollment charter school, in matters related to
operation of an open-enrollment charter school, is immune from liability to the same
extent as a school district, and its employees and volunteers are immune from liability to
the same extent as school district employees and volunteers. Provides that a member of
the governing body of an open-enrollment charter school or of a charter holder is immune
to the same extent as a school district trustee, rather than immune from liability to the
same extent as a school district trustee.
(b) Provides that an open-enrollment charter school is a governmental unit as
defined by Section 101.001 (Definitions), Civil Practice and Remedies Code, and
is subject to liability only as provided by Chapter 101 (Tort Claims), Civil
Practice and Remedies Code, and only in the manner that liability is provided by
that chapter for a school district.
(c) Provides that an open-enrollment charter school is a local government as
defined by Section 102.001 (Definitions), Civil Practice and Remedies Code, and
SRC-DDS H.B. 1171 84(R) Page 1 of 2
a payment on a tort claim must comply with Chapter 102 (Tort Claims Payments
by Local Governments), Civil Practice and Remedies Code.
(d) Provides that an open-enrollment charter school is a local governmental entity
as defined by Section 271.151 (Definitions), Local Government Code, and is
subject to liability on a contract as provided by Subchapter I (Adjudication of
Claims Arising Under Written Contracts with Local Governmental Entities),
Chapter 271 (Purchasing and Contracting Authority of Municipalities, Counties,
and Certain other Local Governments), Local Government Code, and only in the
manner that liability is provided by that subchapter for a school district.
SECTION 2. Effective date: upon passage or September 1, 2015.
SRC-DDS H.B. 1171 84(R) Page 2 of 2