                                MEMORANDUM OPINION
                                        No. 04-10-00777-CV

               The TEXAS STATE OFFICE OF ADMINISTRATIVE HEARINGS,
                                     Appellant

                                                 v.

                   Carol BIRCH, Charles Homer, Ann Landeros, and Carol Wood,
                                          Appellees

                        From the 419th District Court, Travis County, Texas
                               Trial Court No. D-1-GN-09-004285
                       The Honorable Gisela D. Triana-Doyal, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 15, 2010

REVERSED AND RENDERED

           This appeal was transferred to this court from the Third Court of Appeals. Appellees

Carol Birch, Charles Homer, Ann Landeros, and Carol Wood (“appellees”) are former

Administrative Law Judges (“ALJs”). Appellees sued the Texas State Office of Administrative

Hearings (“the SOAH”), claiming they were either fired or constructively discharged based on

age, gender, or disability. Appellees also claim they were wrongfully terminated in retaliation

for their opposition to “illegal crony favoritism,” and “illegal practices in the operation of state
                                                                                      04-10-00777-CV


agencies tasked with the administration of judicial and quasi-judicial functions.” The SOAH

filed a plea to the jurisdiction based on sovereign immunity, arguing the trial court did not have

subject matter jurisdiction over appellees’ common law claims. The trial court denied the

SOAH’s plea and this interlocutory appeal followed. We reverse the trial court’s order because

sovereign immunity has not been waived, and therefore, the trial court was without jurisdiction.

                                              BACKGROUND

       Birch alleges she was constructively discharged due to discrimination based on sex, age,

and disability, as well as in retaliation for her opposition to discriminatory and illegal practices.

Homer alleges he was constructively discharged because he opposed the discriminatory practices

of the SOAH, and Team Leaders pressuring ALJs into making certain decisions. Landeros

alleges she was constructively discharged because she opposed discriminatory practices,

including sexual harassment. As for Wood, she alleges she was terminated because she opposed

discriminatory practices, and because she was paid $350 per month in longevity pay and

received twenty-one hours per month in vacation time. Collectively, appellees claim they were

all terminated for refusing to perform illegal acts, namely, refusing to give in to illegal cronyism.

Appellees cite to Sabine Pilot Serv., Inc. v. Hauck in support of their “illegal acts” claims. See

687 S.W.2d 733 (Tex. 1985). The SOAH filed its plea to the jurisdiction with regard to

appellees’ common law claims.

                                                ANALYSIS

       The SOAH contends the trial court did not have subject matter jurisdiction to hear

appellees’ common law claims under Sabine Pilot. Whether a trial court has subject matter

jurisdiction is a question of law, and is therefore subject to a de novo review. Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).



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       Unless the Texas Legislature expressly waives sovereign immunity, state agencies are

immune from suit. State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009). To establish a waiver of

immunity, parties seeking relief must point to a “legislative statute or a resolution granting

express legislative permission.” Salazar v. Lopez, 88 S.W.3d 351, 353 (Tex. App.—San Antonio

2002, no pet.).

       In Sabine Pilot, the Texas Supreme Court set forth the very narrow exception to the

Texas at-will employment doctrine, holding that an employee may sue if he was terminated

because he refused to perform an illegal act. Sabine Pilot, 687 S.W.2d at 734-35. Although

Sabine Pilot concerns only non-governmental employers, appellees argue Texas public policy

mandates an extension of Sabine Pilot to governmental employees. Neither the Texas Supreme

Court nor the Third Court of Appeals has directly addressed this issue, but several other courts of

appeals have refused to extend Sabine Pilot to governmental employees. See Midland Indep.

School Dist. v. Watley, 216 S.W.3d 374, 376 (Tex. App.—Eastland 2006, no pet.); Nueces

County v. Thornton, 2004 WL 396608, at *5 (Tex. App.—Corpus Christi Mar. 4, 2004, no pet.);

Salazar, 88 S.W.3d at 353; Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767,

777 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.); Carroll v. Black, 938 S.W.2d

134, 134-35 (Tex. App.—Waco 1996, writ denied). These courts have held the governmental

entity retains its sovereign immunity when an employee raises a common law, Sabine Pilot cause

of action. See id. Moreover, appellees have not cited a statute or resolution that establishes a

waiver of immunity in a case like the one before us. Therefore, in accordance with prior

decisions of this court, we refuse to extend the Sabine Pilot exception to governmental

employees. See Salazar, 88 S.W.3d at 353. As we noted in Salazar, the waiver of sovereign




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immunity is best left to the Legislature, not the courts. 88 S.W.3d at 353 (citing Univ. of Tex.

Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994)).

          Because the trial court did not have subject matter jurisdiction to hear appellees’ common

law claims, we reverse the trial court’s order.

                                                  CONCLUSION

          Accordingly, we reverse the trial court’s order and dismiss appellees’ common law

claims.


                                                    Marialyn Barnard, Justice




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