

Affirmed and Majority and Concurring Opinions filed August 26, 
2003.
 
 
In The
 
Fourteenth 
Court of Appeals
_______________
 
NO. 14-02-00706-CV
_______________
 
MAXINE P. BERRY, 
Appellant
 
V.
 
BOARD OF REGENTS OF 
TEXAS SOUTHERN UNIVERSITY, Appellee
                                                                                                                                                

On Appeal from the 281st District Court
Harris County, 
Texas
Trial Court Cause No. 00-54921
                                                                                                                                                

 
M A J O R I T Y   O P I N I O N
 
Maxine P. Berry appeals the trial 
court=s granting of a plea to the 
jurisdiction and dismissal of her lawsuit against Texas Southern University 
(ATSU@).  We 
affirm.

Berry, a former non-tenured TSU 
faculty member, sued TSU under the Texas Whistleblower Act (the AAct@).[1]  TSU filed a plea to the jurisdiction 
(the Aplea@), asserting that Berry failed to 
initiate a grievance procedure that was a jurisdictional prerequisite to suing 
under the Act.  The trial court 
granted the plea and dismissed the case.  
Berry=s four issues on appeal challenge the 
granting of the plea on the ground that TSU had no grievance procedure for her 
to initiate.[2]
Whether a trial court has subject 
matter jurisdiction is a legal question that is reviewed on appeal de 
novo.  State Dep=t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 
2002).  In deciding a plea to the 
jurisdiction, a court may not consider the merits of the case, but only the 
plaintiff=s pleadings and the evidence 
pertinent to the jurisdictional inquiry.  
County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 
2002).
Before suing under the Act, a public 
employee must Ainitiate action under the grievance 
or appeal procedures@ of the employing state or local 
governmental entity relating to suspension or termination of employment or 
adverse personnel action.  Tex. Gov=t Code 
Ann. ' 554.006(a) (Vernon Supp. 2003).  A faculty member at an institution of 
higher education has a right to present a grievance, in person, to 
a member of the administration designated by the governing board of the 
institution on an issue related to the nonrenewal or 
termination of the faculty member=s employment at the institution.  Tex. Educ. Code 
Ann. ' 51.960(b) (Vernon Supp. 2003).[3]  An institution may not restrict this 
right and may (i.e., is not required to) adopt a method for 
presenting, reviewing, and acting on it.  
Id. ' 
51.960(c).

In this case, Berry=s amended petition did not allege 
that she in any way initiated a grievance with TSU before filing suit, but 
instead that TSU did not have a procedure available to her to do so.[4]  However, under section 51.960(b), TSU 
was required by law to allow faculty members, such as Berry, to present a 
grievance, and thus to provide some procedure for doing so, even if only 
informally (i.e., without adopting a formal written set of procedures for 
conducting it pursuant to section 51.960(c)).[5]  To the extent the steps in such a 
procedure are unclear, as in this case, an employee=s request to ranking officials of the 
employer to invoke the procedure (i.e., whatever it may be) can hardly be 
denied effect,[6] 
but an employee is not relieved of the requirement to initiate a grievance.  Because Berry=s issues do not therefore demonstrate 
that the trial court erred in granting TSU=s plea to the jurisdiction, they are 
overruled, and the judgment of the trial court is 
affirmed.
 
 
 
/s/        
Richard H. Edelman
Justice
 
Judgment rendered and Majority and 
Concurring Opinions filed August 26, 2003.
Panel consists of Chief Justice Brister and Justices Yates and Edelman.  (Brister, C.J. 
concurring.)
 
 



[1]           
See Tex. 
Gov=t Code Ann. ' 554.001-010 (Vernon 1994 & Supp. 2003); 
id. ' 554.002(a) (Vernon Supp. 2003) (prohibiting state or 
local governmental entity from terminating, or taking other adverse personnel 
action against, a public employee who in good faith reports a violation of law 
by the employing governmental entity or another public employee to an 
appropriate law enforcement authority).

[2]           
Because Berry does not challenge whether the requirement to initiate a 
grievance, where applicable, is jurisdictional in nature, we do not address that 
issue.  See Univ. Of Tex. Med. 
Branch v. Barrett, ___ S.W.3d ___, ___ (Tex. App.CHouston [14th Dist.] 2003, no pet. h.).  Similarly, because TSU did not assert 
that Berry failed to exhaust administrative remedies in any respects other than 
initiating a grievance, we express no opinion on the existence or exhaustion of 
any other administrative remedies.

[3]           
Berry does not dispute that she was a Afaculty member@ of TSU for this purpose.  See Tex. Educ. Code 
Ann. ' 51.960(a)(1) (Vernon Supp. 2003) (defining Afaculty member@).

[4]           
Berry=s amended petition was filed after TSU=s plea to the jurisdiction, and Berry does not complain 
of being denied an opportunity to amend her petition to allege any additional 
facts.

[5]           
Section 2.2 of the TSU Faculty Manual provides: AAll disputes over personnel issues shall be heard by the 
appropriate committee of the lowest academic unit for initial 
resolution.@  Even if 
this provision did not apply to non-tenured faculty members, as Berry contends, 
section 51.960 nevertheless mandated that some grievance procedure be made 
available.

[6]           
See Fort Bend Indep. Sch. Dist. v. Rivera, 93 S.W.3d 315, 320-21 (Tex. 
App.CHouston [14th Dist.]  2002, no pet.); Univ. of Tex. Med. 
Branch v. Hohman, 6 S.W.3d 767, 775 (Tex. 
App.CHouston 1999, pet. dism=d w.o.j.); Curbo v. State, Office of the Governor, 998 
S.W.2d 337, 341 (Tex. App.CAustin 1999, no pet.); Upton County v. Brown, 960 
S.W.2d 808, 813-14 (Tex. App.CEl Paso 1997, no pet.); Beiser v. Tomball Hosp. Auth., 902 S.W.2d 721, 
724 (Tex. App.CHouston [1st Dist.] 1995, writ denied).  However, TSU=s conduct could not, as Berry contends, confer subject 
matter jurisdiction on the trial court by estoppel.  
See Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 293-95 (Tex. 
2001).