The Third Court of Appeals has released an opinion on an interlocutory appeal which clearly sets forth the rule that in enacting the Whistleblower Act the Texas Legislature waived immunity from both suit and liability, and that a governmental entity is not entitled as a matter of right to an evidentiary hearing on a plea to the jurisdiction on sovereign immunity grounds. First, some quick background. The Texas Supreme Court has held that sovereign immunity is so strong a defense for a governmental entity that it is jurisdictional. In other words, when a Texas governmental entity is sued, that entity may file a plea to the jurisdiction immediately if a legislative waiver of immunity that would apply to the plaintiff’s case is not evident from the plaintiff’s petition. In the event a trial court denies the immunity-based plea to the jurisdiction, the governmental may make an immediate interlocutory appeal. The Texas Whistleblower Act, however, is such a waiver of immunity, both from suit and from liability (sovereign immunity in Texas has two components: immunity from suit, and immunity from liability, and they mean more or less what they sound like they mean). Section 554.035 of the Whistleblower Act states: A public employee who alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this chapter. Sovereign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter. Tex. Gov’t Code §554.0035. In other words, according to the statute (and the Court), all a plaintiff needs to allege in his or her petition is that he or she is a public employee and that the Whistleblower Act has been violated. In this case, the plaintiff did just that. So, since the plaintiff’s petition set forth a clear waiver of sovereign immunity, the trial court had jurisdiction over the claim and the governmental defendant. Accordingly, the trial court denied TXDOT’s plea to the jurisdiction TXDOT, however, was not satisfied. It claimed that a 2004 Texas Supreme Court case entitled them to an evidentiary hearing on its plea, and that at the hearing it would have established that the plaintiff’s whistleblower claim was without merit. The Court points out that the case on which TXDOT relies does not give governmental defendants an absolute right to an evidentiary hearing, but instead merely holds that in some circumstances an evidentiary hearing is appropriate to flesh out jurisdictional facts. That last bit is the rub. Here, TXDOT claimed that the hearing would have shown that the plaintiff did not make a good faith report of a violation of law to an appropriate authority. Those facts, even if proven, would have not disturbed the trial court’s jurisdiction over the case. They may have established a defense to the case as a matter of law, if this had been a summary judgment, but they do not negate jurisdiction. A jurisdictional fact would have been, say, an employment record demonstrating that the plaintiff had never been a public employee. The facts TXDOT wanted to offer, however, went to the merits of the claim, but did not have a bearing on the jurisdictional issue, which is only “did plaintiff allege facts which demonstrated a waiver of immunity.” All told, it’s quite a useful opinion, since it demonstrates the important procedural difference between pleas to the jurisdiction and motions for summary judgment, both of which can and are used by Texas governmental defendants to assert sovereign immunity defenses. Texas Department of Transportation v. Lueck, Cause No. 03-05-00510-CV Technorati Tags: litigation, Third Court of Appeals, law

We don’t do family law, at least as advocates, so this blog typically does not address opinions in family law cases, but this morning the Third Court of Appeals handed down an opinion that seems worth mentioning, as the Court took the time to mention the deference that is to be given to mediated settlement agreements, and unusual dispute resolution mechanisms that may be embodied therein. The case stems from a 1998 mediated divorce. The decree, which incorporated the mediated settlement agreement, stipulated which schools the children were to attend. It further required that, in the event the parents could not agree on an educational decision, “the parties shall follow the recommendations of the person that is the child’s teacher at the time of the decision.” In other words, although the Court did not frame it as such, the child’s teacher was made sort of a de facto arbitrator of subsequent education-related disputes. At any rate, sure enough, 6 years after the divorce the parents became enmeshed in a dispute over where one of their children ought to go to elementary school. The mother filed an action to amend the decree to give her the exclusive right to make educational decisions on behalf of the children so she could move the child from the school specified in the decree (Bryker Woods) to an Austin private school (St. Andrew’s). The trial court found that the circumstances of the child had materially changed since the decree (the legal standard for modification under the Family Code) and amended the decree as requested by the mother, and the father appealed. The Court of Appeals reversed the trial court’s decision, finding that in fact nothing had materially changed with respect to the child in question since the decree. The evidence put forth as to material change, according to the opinion, was simply evidence that the child had grown up; if it were sufficient, the material change requirement would be meaningless, according to the Court. The Court also noted that the child’s teacher recommended that the child not transfer to the private school. In other words, the potentiality that the parties planned for actually did in fact happen, and the mediated agreement should be allowed to operate as agreed. As the Court notes, “it would undermine the efforts of mediated settlement agreements for us to allow a modification on circumstances that were clearly contemplated by the parties at the time of the rendition of the original divorce decree.” All in all, although it’s a bit outside the scope of this blog, the opinion is an interesting read as commentary on the role of the legal system and how we resolve issues like this. In fact, the opinion even quotes the trial judge’s ruminations on that very subject. Zeifman v. Michels, Cause No. 03-05-00533 Technorati Tags: ADR, Third Court of Appeals, law

Well, this morning’s Texas law explosion is explained in large part by a tremendously important sovereign immunity opinion the Texas Supreme Court handed down. The opinion reverses a 1970 Texas Supreme Court and holds that the “sue and be sued” language that shows up all the time in City charters and statutes and the like may not in fact be construed as a waiver of sovereign immunity from suit. The opinion also notes that the Legislature has recently enacted a provision which waives immunity for breach of contract when a local government enters into a contract, which, according to the Court, would not have been necessary if “sue and be sued” really meant a waiver of immunity from suit. According to the Supreme Court, when a provision of a city charter says that a governmental body can sue and be sued “all it clearly says is that the City can be sued and impleaded in court when suit is permitted, not that immunity is waived for all suits.” (emphasis in original). Thus, the Court overruled the 1970 Missouri Pacific case, over Justice O’Neill’s dissent (“Today, in a sweeping reversal unfettered by the constraints of stare decisis or the deference due the Legislature by its longstanding acceptance of our decision, the Court judicially amends those statutes. . . Such a cavalier approach to precedent is deeply disturbing”). Tooke v. City of Mexia, ___ S.W.3d ___ (Tex. 2006) (Cause No. 03-0878). Technorati Tags: litigation, Texas Supreme Court, law

The Texas Supreme Court ruled this morning to clarify that mandamus review is not necessarily available of an order granting a motion to compel arbitration when the underlying litigation is stayed rather than dismissed. According to the Court, one can only seek review of an order granting arbitration when the evidence shows “clearly and indisputably that the district court did not have the discretion to stay the proceedings pending arbitration.” In this case, Olga Palacios filed a petition for writ of mandamus when a trial court granted a motion to compel arbitration filed by a mortgage company. Her testimony was that she did not sign the offered arbitration agreement, but she did in fact sign several papers whose purposes were unclear, as they were written in English, a language she cannot read. According to the Court, this testimony called her credibility into question, since she did not offer exemplars of her signature to demonstrate that the offered signature was not in fact hers. The Court would be wholly untroubled, in other words, if the arbitration agreement were written in a language Ms. Palacios could not read, so long as she did in fact sign it. Finally, the Court notes: “we recognize there is some one-sidedness in reviewing only orders that deny arbitration, but not orders that compel it. Yet both the Federal and Texas acts leave little uncertainty that this is precisely what the respective legislatures intended.” In re Olga Palacios, ___ S.W.3d ___ (Tex. 2006) (Cause No. 05-0038) Technorati Tags: arbitration, ADR, Texas Supreme Court, law