                                                                                       ACCEPTED
                                                                                   14-14-00097-CV
                                                                   FOURTEENTH COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                               7/1/2015 5:37:32 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK

                             No. 14-14-00097-CV

              IN THE FOURTEENTH COURT OF APPEALS         FILED IN
                                                  14th COURT OF APPEALS
                                                     HOUSTON, TEXAS
                      AT HOUSTON, TEXAS            7/1/2015 5:37:32 PM
    __________________________________________________________A. PRINE
                                                  CHRISTOPHER
                                                           Clerk

                               VICKI WARD,
                                 Appellant

                                      v.

    LAMAR UNIVERSITY, TEXAS STATE UNIVERSITY SYSTEM,
                      AND JAMES SIMMONS,
                             Appellees
    ___________________________________________________________

                Appeal from Cause No. E194323, in the
             172nd District Court of Jefferson County, Texas
    ___________________________________________________________

             APPELLANT’S RESPONSE TO APPELLEES’
      MOTION FOR REHEARING OR, IN THE ALTERNATIVE,
                      REHEARING EN BANC
    ___________________________________________________________

     Pursuant to Rule 49.2, TEX. R. APP. P., and as requested by the Court,

Appellant Vicki Ward responds as follows to the Appellees’ Motion for

Rehearing.

                           RESPONSIVE ISSUES

     1.      Ward agrees with the Appellees and Chief Justice Frost
             that the sole constitutional basis for her appeal regarding
             her declaratory judgment action was improper dismissal
           of her free speech claim under the Texas Constitution. To
           the extent that the Court granted reversal on other
           constitutional grounds, its reversal exceeds the scope of
           what Ward sought.

     2.    Ward’s declaratory judgment action based upon
           constitutional violations is not moot because her claim for
           attorneys’ fees breathes life into what might otherwise be
           a moot claim. Moreover, nothing in the record reflects
           that Ward’s declaratory judgment claim is moot.

     3.    The Appellees again fail to address the pertinent Texas
           case law and recite a “laundry list” of complaints that
           Ward did not assert, while failing to examine the
           complaints she did assert. Nothing in the Appellees’
           Motion should prompt re-examination of the Court’s
           opinion and judgment on Ward’s whistleblower claim.

     4.    The Appellees have failed to present, demonstrate, or
           even mention any basis for en banc review.

                              ARGUMENT

Argument on Responsive Issue One:

     Ward agrees with the Appellees and Chief Justice Frost that the
     sole constitutional basis for her appeal regarding her
     declaratory judgment action was improper dismissal of her free
     speech claim under the Texas Constitution. To the extent that
     the Court granted reversal on other constitutional grounds, its
     reversal exceeds the scope of what Ward sought.

     With her second issue presented to this Court, Ward intended to

appeal the trial court’s dismissal of her claim for declaratory judgment on

the basis that the Appellees violated her free-speech right protected by the

                                     2
Texas Constitution. Ward did not intend to pursue the reversal of any

other constitutional claim. In all candor to the Court, free speech is the

only ground upon which Ward believes her appeal should properly have

been pursued and decided. To the extent that the Court construed Ward’s

appeal more broadly, it is an object lesson to Ward’s appellate counsel to be

more specific and concise in his briefing. Should the Court wish to revise

its opinion to narrow its scope with regard to Ward’s declaratory judgment

action—reversing only the dismissal of that portion based upon her

constitutionally protected right to free speech—Ward would have no issue

with the Court’s reasoned action.

Argument on Responsive Issue Two:

     Ward’s declaratory judgment action based upon constitutional
     violations is not moot because her claim for attorneys’ fees
     breathes life into what might otherwise be a moot claim.
     Moreover, nothing in the record reflects that Ward’s
     declaratory judgment claim is moot.

I.   The Declaratory Judgment Act allows recovery of attorneys’ fees on
     an “equitable and just” basis.

     Texas has long followed the “American Rule” that prohibits awards

of attorneys’ fees unless specifically provided by contract or statute. MBM

Fin. Corp. v. Woodlands Oper. Co., 292 S.W.3d 660, 669 (Tex. 2009). Ward’s


                                     3
free speech claims in the trial court were brought under the Texas

Declaratory Judgment Act, which provides the trial court with discretion to

award attorneys’ fees. See TEX. CIV. PRAC. & REM. CODE § 37.009; CR 44.

      In many instances, a party must be a prevailing party in the trial

court in order to obtain attorneys’ fees. See, e.g., TEX. CIV. PRAC. & REM.

CODE § 38.001; TEX. LAB. CODE § 21.259. But the plain language of the Texas

Declaratory Judgment Act does not require that a plaintiff, or any other

party, prevail in order to recover attorneys’ fees and costs. See TEX. CIV.

PRAC. & REM. CODE § 37.009. It provides the trial court with discretion to

award costs and necessary attorney’s fees “as are equitable and just,” and

Ward sought “fair and equitable” attorneys’ fees by her action. Id.; CR 78-

79.   Texas courts have repeatedly recognized that the Declaratory

Judgment Act does not require an award of attorneys’ fees to the prevailing

party, nor does it prohibit such an award to a non-prevailing party. See

Hansen v. JP Morgan Chase Bank, 346 S.W.3d 769, 773 (Tex. App.—Dallas

2011, no pet.).   Because she brought her claim under the Declaratory

Judgment Act, Ward does not have to prevail on that claim in order to

prevail on a claim for attorneys’ fees.



                                          4
II.   The Texas Supreme Court’s analysis of the mootness doctrine and
      claims for attorneys’ fees shows that Ward’s claim for attorneys’
      fees is not moot.

      Mootness is a component of subject matter jurisdiction. See Black v.

Jackson, 82 S.W.3d 44, 51-52 (Tex. App.—Tyler 2002, no pet.). When a

request for injunctive relief or declaratory relief becomes moot, it may—in

some circumstances—also cause a claim for attorneys’ fees to become

similarly moot. See Speer v. Presbyterian Children’s Home & Serv. Agency, 847

S.W.2d 227 (Tex. 1993).     But, as the Texas Supreme Court’s opinions

demonstrate, this does not happen in every case, and it does not happen

where the plaintiff brings her action under the Texas Declaratory Judgment

Act. See Camarena v. Tex. Employment Comm’n, 754 S.W.2d 149, 151 (Tex.

1988).

      A.   A claim for attorneys’ fees can “breathe life” into an otherwise
           moot cause.

      In Camarena, farm workers challenged the constitutionality of a

statute that denied benefits to agricultural workers under the Texas

Unemployment Compensation Act. 754 S.W.2d, at 150. The trial court

granted the workers the sought-after declaration under the Uniform

Declaratory Judgments Act, as adopted by Texas, but denied an award of


                                     5
attorneys’ fees under principles of sovereign immunity.            See Tex.

Employment Comm’n v. Camarena, 710 S.W.2d 665, 667 (Tex. App.—Austin

1986, rev’d by 754 S.W.2d 149). Afterward, the Legislature amended the

Unemployment Compensation Act to phase in benefits for agricultural

workers, and the trial court issued an amended judgment holding the

newly amended statute constitutional.

     Cross-appeals ensued, with the Commission arguing that the

workers’ claim was moot, in light of the Legislature’s action, and the

workers arguing that they were entitled to attorneys’ fees. The Austin

Court of Appeals agreed with the Commission on the mootness issue, and

held attorneys’ fees barred by sovereign immunity.

     But the Texas Supreme Court saw things differently. Although it

recognized that “it is axiomatic that appellate courts do not decide cases in

which no controversy exists between the parties,” it nevertheless held that

the farm workers’ claim to attorneys’ fees was just such a “controversy”

and that it was not dependent upon the existence of any other claim. 754

S.W.2d, at 152. It further held sovereign immunity waived by Chapter 106

of the Civil Practice and Remedies Code. Id.



                                     6
     B.    A dispute over attorneys’ fees under the Declaratory Judgment
           Act is a “live controversy” even if the substantive claim is
           moot.

     In Allstate Ins. Co. v. Hallman, 159 S.W.3d 640 (Tex. 2005), the Texas

Supreme Court considered an action brought under the Declaratory

Judgment Act by an insurance company against its insured. Hallman was

named as a defendant in a property damage suit, and Allstate—her liability

insurer—stepped in to provide a defense under a reservation of rights.

Simultaneously, Allstate filed suit against Hallman for declaratory

judgment to resolve the question of its coverage.     159 S.W.3d, at 641.

Hallman counterclaimed for a declaration that Allstate had a duty to

defend and indemnify her in the underlying property damage suit. Id.

Both Hallman and Allstate sought their attorneys’ fees in the declaratory

judgment action.

     The trial court granted summary judgment for Allstate, but the court

of appeals reversed, holding the property damage claim was covered by

Hallman’s policy. While the case was pending before the Texas Supreme

Court on further appeal, Hallman won the underlying property damage

claim, and Allstate agreed not to seek reimbursement for amounts it spent

on her defense. 159 S.W.3d, at 642. This rendered the substantive portion

                                    7
of Hallman’s claim moot. Allstate had provided the demanded defense,

and no indemnity was necessary. Id.

      Nevertheless, the Court held that a controversy—Hallman’s claim for

attorneys’ fees—yet existed between the parties.           Favorably citing

Camarena, the Court held that a justiciable controversy continued to exist

between the parties precisely because of the existence of the claim for

attorneys’ fees.    159 S.W.3d, at 642-43.    Again, citing the Declaratory

Judgment Act, the Court held that the claim for attorneys’ fees kept the

case alive.

      C.      Even if Ward’s substantive claims under the Declaratory
              Judgment Act are moot, her claim for attorneys’ fees under that
              Act is not.

      Like both Camarena and Hallman, Ward brought her claims for

declaratory relief under the Texas Declaratory Judgment Act. Mootness

would, of necessity, prevent her from being a prevailing party, just as it

prevented Speer from being a prevailing party.          But the Declaratory

Judgment Act does not require her to prevail. It requires only that an

award be “equitable and just,” and this is a matter encompassed by her

second issue on appeal, which appealed the dismissal of her action under

the Declaratory Judgment Act. As a matter of law and Texas Supreme

                                       8
Court precedent, Ward’s now revived claim for attorneys’ fees under the

Declaratory Judgment Act means that her claim is not moot. See Pate v.

Edwards, No. 12-13-00231-CV, 2014 Tex. App. LEXIS 431, *7 (Tex. App.—

Tyler Jan. 15, 2014, no pet.) (holding that, even though her underlying

substantive constitutional issues were moot, the plaintiff’s claim for

attorney’s fees was a separate controversy that persisted).

III.   Nothing in the record indicates Ward’s declaratory judgment action
       is moot.

       For purposes of demonstrating the purported mootness of Ward’s

declaratory judgment claim, the Appellees present her letter of resignation

from Lamar University. Appellees’ Motion for Rehearing, at Exh. A. The

exhibit was never presented to the trial court. It is not a part of the record

on appeal. And, thus, it cannot serve as any sort of basis for this Court’s

decision.

       Appellate courts are not fact-finding courts but courts of review.

They are not forums for presenting evidence for the very first time.

Consequently, they may consider only what was also considered by a

lower court and included in the appellate record. See Mitchison v. Houston

I.S.D., 803 S.W.2d 769, 771 (Tex. App.—Houston [14th Dist.] 1991, writ


                                      9
denied); Du Bois v. Williams, No. 01-10-00074-CV, 2011 Tex. App. LEXIS

3191 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.) (appellate court

cannot consider items attached to a brief that are not also formally included

in the record on appeal). The Appellees present a single-page, unverified,

non-certified letter that purports to be Ward’s resignation. It is not part of

the record on appeal, the trial court has never opined on its effect, and it

does not release the Appellees from any claim for attorneys’ fees asserted

by Ward’s declaratory judgment action. It can hardly claim to render that

action moot. The Court may not even consider it.

Argument on Responsive Issue Three:

      The Appellees again fail to address the pertinent Texas case law
      and recite a “laundry list” of complaints that Ward did not
      assert, while failing to examine the complaints she did assert.
      Nothing in the Appellees’ Motion should prompt re-
      examination of the Court’s opinion and judgment on Ward’s
      whistleblower claim.

      There is nothing new here. Once again, the Appellees fail to address

Ward’s allegations and testimony. Once again, the Appellees set up straw

men in order to knock them down. They fail to draw any connection

between those straw men and Ward’s very real allegations. A loss of

supervisory authority implicates a loss of job status and prestige—matters


                                     10
held protected by the Texas Whistleblower Act.          See Gray v. City of

Galveston, No. 14-12-00183-CV, 2013 Tex. App. LEXIS 6197, *17 (Tex.

App.—Houston [14th Dist.] May 21, 2013, no pet.) (mem. op.) (citing

Montgomery County v. Park, 246 S.W.3d 610, 615 (Tex. 2007).).

I.   The Appellees fail to address directly applicable case law.

     Once again, the Appellees make no effort to address pertinent case

law, including City of El Paso v. Parsons, 353 S.W.3d 215 (Tex. App.—El Paso

2011, no pet.), which the Court cited in its Opinion. Parsons stands for the

prospect that an employee who loses his responsibilities while,

nonetheless, maintaining his title has been retaliated against. Nevertheless,

and despite this Court’s citation, the Appellees find the case unworthy of

mention.

     The Parsons Court applied the Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 126 S. Ct. 2405 (2006) standard adopted by the Texas

Supreme Court in Montgomery County v. Park, 246 S.W.3d 610 (Tex. 2007),

finding that, under the totality of the circumstances, there was more than a

scintilla of evidence that a transfer such as Parsons’s would tend to deter

an employee from reporting illegal conduct. 353 S.W.3d, at 228. It is

almost exactly what happened to Ward. The Court committed no error by
                                     11
recognizing this fact.

II.   The Appellees examine the sufficiency of matters Ward never
      alleged but fail to examine what she did allege.

      On rehearing, once again, instead of considering what Ward did

allege—removal of her oversight over purchasing and procurement and

loss of supervisory authority—the Appellees’ Brief spends substantial time

reviewing a litany of potential employer acts that do not constitute adverse

personnel action and that Ward never alleged.        Appellees’ Motion for

Rehearing, at pp. 11-13. It is the same tactic the Court rejected previously.

The Court should reject it now as it did before.

Argument on Responsive Issue Four:

      The Appellees have failed to present or demonstrate or even
      mention any basis for en banc review.

      En banc consideration is generally disfavored. Rule 41.2(c), TEX. R.

APP. P. Grounds for such consideration exist only when it is necessary to

secure or maintain uniformity of the appellate court’s decisions or unless

extraordinary circumstances merit such consideration. Id. The Appellees

do not argue that the Court’s Opinion in this matter conflicts with any

other opinion of this Court.        Hence, they raise no argument that

reconsideration is necessary for purposes of uniformity. Similarly, they

                                     12
argue no extraordinary circumstance that would prompt consideration by

the full Court. In fact, the Appellees raise no substantive rationale, at all,

not even mentioning the question of en banc review beyond the title and

first few sentences of the Motion. The Appellees’ request for en banc

reconsideration should be denied.

                              CONCLUSION

     On the rare occasion that the Appellees present anything new, it is

something the Court may not consider. Ward agrees that she sought only

to pursue her whistleblower and free speech claims before the trial court,

but concedes nothing else. Her declaratory judgment action is not moot,

her whistleblower claim is entirely valid, and the Appellees’ request for en

banc consideration is entirely unsupported. To the extent that the Court

feels it necessary to reconsider its Opinion concerning certain constitutional

claims, Ward concedes it should do so. In all other respects, Ward requests

that the Appellees’ Motion for Rehearing be denied.




                                     13
 Respectfully submitted,

 SIMPSON, P.C.

 /s/ Iain G. Simpson
 ______________________________
 Iain G. Simpson
 State Bar No. 00791667
 1333 Heights Boulevard, Suite 102
 Houston, Texas 77008
 (281) 989-0742
 (281) 596-6960 (fax)
 iain@simpsonpc.com

 APPELLATE COUNSEL FOR
 VICKI WARD




14
                      CERTIFICATE OF SERVICE

      I hereby certify that a copy of the foregoing Appellant’s Reply Brief
was served this 1st day of July, 2015, via electronic service or electronic
mail on the following:

Eric L. Vinson
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Eric.Vinson@texasattorneygeneral.gov

COUNSEL FOR LAMAR UNIVERSITY,
TEXAS STATE UNIVERSITY SYSTEM, AND JAMES SIMMONS



                                         /s/ Iain G. Simpson
                                         ____________________________
                                         Iain G. Simpson




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