                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 COUNTY OF EL PASO, TEXAS and EL                §
 PASO COUNTY SHERIFF’S                                          No. 08-13-00082-CV
 DEPARTMENT,                                    §
                                                                  Appeal from the
                      Appellants,               §
                                                                 34th District Court
 v.                                             §
                                                              of El Paso County, Texas
 LISA LATIMER,                                  §
                                                                  (TC#2010-2297)
                      Appellee.                  §


                                         OPINION

       In this interlocutory appeal, the County of El Paso, Texas and the El Paso County Sheriff’s

Department (collectively referred to as “the County”) challenge an order denying their plea to the

jurisdiction. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (a)(8) (West 2008). We affirm.

                                       BACKGROUND

       On June 21, 2010, Appellee Lisa Latimer sued the County under the Texas Whistleblower

Act. See TEX. GOV’T CODE ANN. §§ 554.001 - .010 (West 2012). The County answered the suit

and asserted affirmative defenses including, in part, the doctrine of governmental immunity. The

County asserted Latimer’s suit was untimely filed. The County filed a memorandum and brief in
support of its plea to the jurisdiction.

         On February 4, 2013, Latimer subsequently filed a third amended petition stating that the

County waived its sovereign immunity. Latimer alleged that she worked for the County and that

after her supervisor “ignored her,” she made a good faith report of alleged violations of the law by

the County “and/or” its employees to appropriate law enforcement authorities. 1 On July 24,

2009, Latimer was informed she was being terminated from her employment and was given the

weekend to decide whether to resign or be terminated.2 Latimer chose not to resign, and on July

27, 2009, she was terminated allegedly due to poor work performance. That same day, Latimer

invoked “and/or” attempted to invoke the County’s grievance or appeal procedures by submitting

an “El Paso County Sheriff’s Department Multi-Purpose Report.”

         Latimer’s report detailed her belief that she was terminated due to her good faith report of

alleged violations of the law. On July 28, 2009, Latimer attempted to discuss her termination

with Sargent Esparza, thus providing the County with notice of her belief that she was terminated

due to her good faith report and her intent to contest the adverse personnel action taken against her.

Latimer also alleged that the County failed to resolve the grievance process within 60 days from

the date she initiated or attempted to initiate the County’s procedure, that she elected to exhaust

the County’s grievance procedures, and that she did nothing to terminate those procedures.

         In response to Latimer’s third amended petition, the County filed an amended

memorandum and brief in support of its plea. The County asserted Latimer failed to comply with

the statutory requirements to file suit against the County, and that she should have filed suit within

90 days of her termination.            The County argued that because Latimer was a probationary

1
  Specifically, she reported that inventory was being taken for personal use when it was supposed to be turned into the
County for disposal and that the County failed to report a motor vehicle accident that had involved one of its units.
2
  At that time, Latimer had been a County employee for almost five months.
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employee who was not entitled to a grievance, the 90-day limitations period was not tolled, and

thus, the trial court lacked jurisdiction over her suit. As evidence in support of its plea argument,

the County attached a copy of Rule 2.04 of the County’s Civil Service Rules and Regulations and

a copy of the County’s “New Employee Orientation Checklist” purportedly signed by Latimer on

March 2, 2009.

       Latimer responded she was entitled to a grievance, and that the County had indicated and

represented to her that she was entitled to a grievance and that her claims would be investigated.

Latimer further alleged that she did not terminate the grievance procedure, that the County did not

resolve her grievance, and that the County did not tell her there was no grievance procedure

available to her. As such, Latimer contended the 90-day limitations period was tolled until she

filed suit in 2010. After conducting a hearing, the trial court denied the County’s plea to the

jurisdiction. This interlocutory appeal followed.

                                             DISCUSSION

       In its sole issue, the County argues that due to the untimeliness of her whistleblower suit,

Latimer failed to comply with the jurisdictional elements of her cause of action and thus, the trial

court lacked jurisdiction over her claims.

                                        Standard of Review

       Generally, political subdivisions of the State, such as counties, are immune from suit and

liability under the doctrine of governmental immunity. See Triple X-Ray, Inc. v. Winkler Cnty.

Memorial Hosp., 366 S.W.3d 299, 303 (Tex. App. – El Paso 2012, no pet.). A plea to the

jurisdiction contests a trial court’s subject matter jurisdiction. City of Dallas v. Carbajal, 324

S.W.3d 537, 538 (Tex. 2010); Samaniego v. Keller, 319 S.W.3d 825, 828 (Tex. App. – El Paso


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2010, no pet.). Whether a court has subject matter jurisdiction is a question of law. Tex. Dep’t of

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

       A trial court’s ruling on a plea to the jurisdiction is reviewed de novo. Id.; De Santiago v.

W. Tex. Cmty. Supervision & Corr. Dep’t, 203 S.W.3d 387, 393 (Tex. App. – El Paso 2006, no

pet.). The plaintiff has the burden of pleading facts which affirmatively show that the trial court

has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

       Thus, we first consider the plaintiff’s petition to determine whether the facts pleaded

affirmatively demonstrate that jurisdiction exists. State v. Holland, 221 S.W.3d 639, 642 (Tex.

2007), citing Miranda, 133 S.W.3d at 226. We construe the pleadings liberally in favor of the

pleader, look to the pleader’s intent, and accept as true the factual allegations in the pleadings.

Miranda, 133 S.W.3d at 226, 228. If the pleadings are insufficient to establish jurisdiction but do

not affirmatively demonstrate an incurable defect, the plaintiff should be afforded an opportunity

to replead. Holland, 221 S.W.3d at 643; Miranda, 133 S.W.3d at 226-27. However, in some

instances, a plea to the jurisdiction may require our consideration of evidence pertaining to

jurisdictional facts.   Holland, 221 S.W.3d at 643; Miranda, 133 S.W.3d at 227; Bland

Independent School District v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). “A plea should not be

granted if a fact issue is presented as to the court’s jurisdiction, but if the relevant undisputed

evidence negates jurisdiction, then the plea to the jurisdiction must be granted.” Holland, 221

S.W.3d at 643, citing Miranda, 133 S.W.3d at 227-28.

                           THE TEXAS WHISTLEBLOWER ACT

       Pursuant to the Texas Whistleblower Act (the Act), a state or local governmental entity

may not suspend or terminate the employment of, or take other adverse personnel action against, a


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public employee who makes a good faith report of a violation of law by the employing

governmental entity or another public employee to an appropriate law enforcement authority. See

TEX. GOV’T CODE ANN. § 554.002(a) (West 2012). The Act is “‘designed to enhance openness in

government and compel the [employing governmental entity’s] compliance with law by protecting

those who inform authorities of wrongdoing.’” Resendez v. Tex. Comm. On Environmental

Quality, 391 S.W.3d 312, 320 (Tex. App. – Austin 2012, pet. filed) (quoting Tex. Dep’t of

Assistive & Rehabilitative Servs. v. Howard, 182 S.W.3d 393, 399 (Tex. App. – Austin 2005, pet.

denied). Because the Act is remedial in nature, it should be liberally construed to effect its

purpose. Id. Governmental immunity is expressly waived under the Act. See TEX. GOV’T

CODE ANN. § 554.0035 (West 2012).

       The Act requires a public employee to sue no later than 90 days after the alleged violation

occurred or was discovered through reasonable diligence. Id. § 554.005. If applicable, an

employee must initiate an 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, no later than the 90th day after the alleged violation occurred or was discovered

by the employee. Id. § 554.006(a)-(b). When the employer’s grievance or appeal procedures are

initiated, the statute of limitations is tolled. Id. § 554.006(c). If the employer has not made a

final decision before the 61st day after the grievance or appeal procedures are initiated, the

employee may elect (1) to exhaust the applicable procedures, and file suit no later than the 30th

day after those procedures are exhausted; or (2) to terminate procedures under Section 554.006(a),

and file suit within the time remaining under Section 554.005. Id. § 554.006(d).

       The County argues as it did below, that Latimer was not entitled to file a grievance


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pursuant to its Civil Service Rules and Regulations because she was a probationary employee at

the time of termination.      Pointing to Rule 2.04 of the County’s Civil Service Rules and

Regulations and the “New Employee Orientation Checklist” purportedly signed by Latimer, the

County contends the evidence presented below established that Latimer was a probationary

employee, that she received a copy of the Civil Service Rules and Regulations, and that she had

knowledge that she could not file a grievance. Rule 2.04 provides:

       Employment Probationary Period: The probationary period consists of the first
       six (6) months of employment with the County, beginning from the employee’s
       Effective Date of Employment, for all regular full-time and part-time employees,
       during which time they must demonstrate their ability to satisfactorily perform the
       duties required, The immediate supervisor will periodically advise the employee
       of his progress and assure that the employee receives any reasonably necessary
       training required in order for the employee to successfully perform the job duties.
       Failure of the employee to perform satisfactorily during the probationary period
       will result in dismissal without right to appeal. Any employee successfully
       completing the six (6) month probationary period shall thereafter be covered by
       these Rules during their tenure of employment in a covered position.

The “New Employee Orientation Checklist,” purportedly signed by Latimer on March 2, 2009,

indicates she was issued a Civil Service CD which according to the County allegedly contained the

County’s Civil Service Rules and Regulations. Accordingly, based on the foregoing evidence, it

is the County’s position that Latimer knew she did not have a right to a grievance due to her status

as a probationary employee, and that without any applicable grievance procedure available to her,

Latimer had until October 25, 2009, 90 days from July 27, 2009, to file suit. Because Latimer did

not file suit until June 21, 2010, the County maintains her suit was untimely and, therefore, the trial

court lacked jurisdiction.

       Latimer responds that the County’s argument is misguided. Relying on Bates v. Randall

County, 297 S.W.3d 828 (Tex. App. – Amarillo 2009, pet. denied), Latimer argues the evidence in


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this case shows that it was unclear whether she was entitled to a grievance procedure when she

provided the County with notice that she was retaliated against for her good faith report of

violations of the law. Latimer further asserts that she complied with Section 554.006 and that the

90-day statutory limitations period was tolled because she in “good faith initiated and/or

attempted” to invoke the County’s grievance procedure which provided the County with notice of

her intent to contest her wrongful termination under the Act.

       In Randall County, two county employees sued Randall County under the Whistleblower

Act.   Id. at 832.   Randall County argued the appellants’ claims were barred because they were

untimely filed. Id.     Randall County contended that no applicable grievance procedure applied

to the appellants because they were no longer its employees when they attempted to initiate the

grievance procedure.      Id. at 834.   The trial court subsequently found Randall County created

an ambiguity as to whether its grievance procedure applied to the appellants where their

supervisor made statements to them that he would deny their grievance because it was untimely

filed. Id. at 834-35.    Because of the uncertainty of the applicability of the grievance procedure

to the appellants, the trial court concluded that appellants’ notice to the county that they believed

they were terminated from their employment due to their good faith report of an alleged violation

of the law was sufficient to toll the 90-day limitations period.   Id.

       Here, the parties do not dispute that Latimer was terminated from her employment on July

27, 2009, less than five months after being hired by the County. Latimer filed her whistleblower

suit on June 21, 2010, nearly 11 months after the adverse personnel action. Latimer contends the

90-day period of limitations was tolled when she initiated or attempted to initiate the County’s

grievance procedure on July 27, 2009, and when she attempted to discuss her termination with


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Sargent Esparza on July 28, 2009.

       Although the County contends the evidence clearly establishes that there was no grievance

procedure applicable to Latimer due to her status as a probationary employee at the time of her

termination, we agree with Latimer that the evidence is unclear and, that, at a minimum, the

evidence presented a fact issue as to whether she was entitled to an investigation or grievance

procedure based on her claim that she was terminated in retaliation for making a good faith report

of alleged violations of the law.

       When it is unclear whether an employer has a post-termination grievance procedure, the

terminated employee’s notice to the employer that he believes that an adverse personnel action

was taken against him due to a good faith report of a violation of the law by the governmental

entity, if made within 90 days, is sufficient to toll the limitations period of Section 554.005.

Randall County, 297 S.W.3d at 834; see also Beiser v. Tomball Hosp. Auth., 902 S.W.2d 721,

724 (Tex. App. – Houston [1st Dist.] 1995, writ denied) (holding that terminated employee’s

whistleblower suit not barred by limitations when employer created uncertainty as to availability

or applicability of grievance procedures).   The record does not conclusively establish that there

was no applicable grievance procedure available to Latimer.

       Instead, the evidence shows Latimer submitted a report to the County on July 27, 2009,

detailing her belief that she was terminated from her employment due to her good faith report of

alleged violations of law by the County “and/or” its employees.        The County accepted that

report when an unknown County employee made a handwritten notation on that report which

read “Received on 7-27-09 & will forward to Internal Affairs for investigation.”     Latimer also

attempted in good faith to discuss her termination with Sargent Esparza on July 28, 2009, and


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thus, gave notice of her belief that she was terminated due to her good faith report of alleged

violations of law and her intent to contest the personnel action.         See Moore v. Univ. of

Houston-Clear Lake, 165 S.W.3d 97, 102 (Tex. App. – Houston [14th Dist.] 2005, no pet.)

(noting that the Act does not dictate what actions are required to initiate the appeals procedure

nor does it require the use of particular words, nor require employee’s grievance or appeal is

based on the Act); Tarrant Cnty. v. McQuary, 310 S.W.3d 170, 177 (Tex. App. – Fort Worth

2010, pet. denied) (holding that employee asserting whistleblower claims is required to give

employer fair notice that the employee intends to appeal a specific disciplinary decision and

assert claims under the Act).     Both of these events occurred within 90 days of Latimer’s

termination.   See TEX. GOV’T CODE ANN. § 554.006 (requiring that the employee invoke the

applicable grievance or appeal procedures no later than 90 days after the alleged violation under

the Act).   In her third amended petition, Latimer also alleged she was entitled to a grievance

procedure, that the County represented to her that she was entitled to a grievance procedure, that

the County indicated and represented to her that her claims would be investigated, and that the

County did not inform her that she was not entitled to a grievance procedure.

       Based on the County’s handwritten notation on the report Latimer submitted to the

County on July 27, 2009, and Latimer’s allegations concerning the County’s representations to

Latimer about the applicability of the grievance procedure, the trial court could have reasonably

inferred that it was unclear whether Latimer was entitled to invoke the County’s grievance or

appeals procedure before filing suit such that her notice to the County that she believed her

termination with the County was due to her good faith report of alleged violations of the law was

sufficient to toll the 90-day limitations period to file suit under the Act.   See Randall County,


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297 S.W.3d at 834-35.     Because the evidence in the record was unclear as to whether Latimer

was entitled to a grievance procedure such that the trial court could have reasonably determined

that the applicable statutory period was tolled or, that, at a minimum, a fact issue was raised, we

conclude that the trial court did not err in denying the County’s plea to the jurisdiction. See

Randall County, 297 S.W.3d at 834-35; see also Beiser, 902 S.W.2d at 724 (holding that

terminated employee’s whistleblower suit not barred by limitations when employer created

uncertainty as to availability or applicability of grievance procedures); Miranda, 133 S.W.3d at

227-28 (stating that trial court must deny plea to the jurisdiction if the evidence presents a fact

question concerning jurisdiction).   Issue One is overruled.

                                         CONCLUSION

       We affirm the trial court’s order denying Appellants’ plea to the jurisdiction.



                                             GUADALUPE RIVERA, Justice
May 21, 2014

Before McClure, C.J., Rivera, and Rodriguez, JJ.




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