Affirmed in Part; Reversed and Remanded in Part; and Memorandum Opinion filed
July 3, 2018.




                                       In The

                      Fourteenth Court of Appeals

                                NO. 14-17-00084-CV

          ELIZABETH PROTAS, PT, PHD, FACSM, FAPTA, Appellant
                                          V.
  UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, DAVID
  CALLENDER, M.D., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,
   AND DANNY JACOBS, M.D., INDIVIDUALLY AND IN HIS OFFICIAL
                       CAPACITY, Appellees

                     On Appeal from the 212th District Court
                            Galveston County, Texas
                       Trial Court Cause No. 16-CV-0726

                   MEMORANDUM                     OPINION


      The underlying suit in this case was filed by appellant Dr. Elizabeth Protas, PT,
PHD, FACSM, FAPTA, a tenured professor at The University of Texas Medical Branch
at Galveston (“UTMB”) and Vice President and Dean of the School of Health Professions,
against UTMB, Dr. David Callender, M.D., and Dr. Danny Jacobs, M.D., in their official
and individual capacities. Callender and Jacobs moved to dismiss the claims against them
in their individual capacities pursuant to the Texas Tort Claims Act (“TTCA”). See Tex.
Civ. Prac. & Rem. Code § 101.106. UTMB, along with Callender and Jacobs,
(collectively “appellees”) filed a plea to the jurisdiction alleging all of appellant’s claims
were barred by sovereign immunity. On December 5, 2016, the trial court granted the
motion to dismiss Callender and Jacobs in their individual capacities. On January 11,
2017, the trial court granted appellees’ plea to the jurisdiction. From those orders,
appellant brings this appeal. We affirm in part and reverse and remand in part.

                                       BACKGROUND

      The facts of this case are well-known to the parties so we do not discuss all the
particulars of the underlying suit. After conflicts with two employees had occurred,
appellant was ordered to attend a Civil Treatment for Leaders course in Atlanta, Georgia,
for which she was to bear the costs. Subsequently, after further conflict with one of those
same employees, appellant was suspended without pay for two weeks and informed that
she would be ineligible for participation in the UTMB At Risk Incentive plan for the
fourth quarter of the 2015 fiscal year. Appellant filed a grievance with UTMB which
failed to afford her any relief. She then filed suit against appellees. As noted above, that
suit has been dismissed in its entirety.

      On appeal, appellant raises five issues. Appellant’s first issue complains of the
denial of discovery. Issue two regards the election of remedies under the TTCA. See Tex.
Civ. Prac. & Rem. Code § 101.106. In issues three, four, and five, appellant asserts the
trial court erred in granting appellees’ plea to the jurisdiction on her claims for due process
violations, discrimination, and declaratory judgment, respectively. Before turning to
appellant’s issues, we set forth applicable standards of review and governing law.




                                              2
                                     APPLICABLE LAW

                                     Standard of Review

       A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of
subject matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a court has subject
matter jurisdiction is a question of law. Texas Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004); Texas Natural Res. Conservation Comm’n v. IT-Davy, 74
S.W.3d 849, 855 (Tex. 2002). Whether a party has alleged facts that affirmatively
demonstrate a trial court’s subject matter jurisdiction and whether undisputed evidence of
jurisdictional facts establishes a trial court’s jurisdiction are questions of law reviewed de
novo. Miranda, 133 S.W.3d at 226. However, in some cases, disputed evidence of
jurisdictional facts that also implicate the merits of the case may require resolution by the
finder of fact. Id.

       When a plea to the jurisdiction challenges the pleadings, we determine if the
pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the
cause. Miranda, 133 S.W.3d at 226. We construe the pleadings liberally in favor of the
plaintiff and look to the pleader’s intent. Id. If the pleadings do not contain sufficient facts
to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively
demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and
the plaintiff should be afforded the opportunity to amend. Id. at 226–27. If the pleadings
affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be
granted without allowing the plaintiff an opportunity to amend. Id. at 227.

       If a plea to the jurisdiction challenges the existence of jurisdictional facts, we
consider relevant evidence submitted by the parties when necessary to resolve the
jurisdictional issues raised, as the trial court is required to do. Miranda, 133 S.W.3d at
227 (citing Bland, 34 S.W.3d at 555). In a case in which the jurisdictional challenge
                                               3
implicates the merits of the plaintiff’s cause of action and the plea to the jurisdiction
includes evidence, the trial court reviews the relevant evidence to determine if a fact issue
exists. Id. If the relevant evidence is undisputed or fails to raise a fact question, the trial
court rules on the plea as a matter of law. Id. at 228.

      The standard of review for a plea to the jurisdiction based on evidence “generally
mirrors that of a summary judgment under Texas Rule of Civil Procedure
166a(c).” Miranda, 133 S.W.3d at 228; see also Thornton v. Ne. Harris Cty. MUD 1, 447
S.W.3d 23, 32 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Under this standard,
we take as true all evidence favoring the non-movant and draw all reasonable inferences
and resolve any doubts in the non-movant’s favor. Miranda, 133 S.W.3d at 228. If the
movant presents conclusive proof that the trial court lacks subject matter jurisdiction, then
the non-movant must present evidence sufficient to raise a material issue of fact regarding
jurisdiction, or the plea will be sustained. See id.; City of Galveston v. Murphy, No. 14-
14-00222-CV, 533 S.W.3d 355, 358–59, 2015 WL 167178, at *2 (Tex. App.—Houston
[14th Dist.] Jan. 13, 2015, pet. denied).

                                            Immunity

      Sovereign immunity protects the State and its political subdivisions from lawsuits
for damages unless immunity has been waived by the Legislature. Tex. Parks & Wildlife
Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011); Reata Constr. Corp. v. City of
Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Sovereign immunity from suit deprives a trial
court of subject matter jurisdiction and is properly asserted in a plea to the
jurisdiction. Reata, 197 S.W.3d at 374; Miranda,133 S.W.3d at 225–26. However, the
Texas Supreme Court has recognized that sovereign immunity does not bar a suit in at
least two relevant circumstances: (1) when the suit seeks to determine or protect a party’s
rights against a government official who has acted without legal or statutory authority—
commonly referred to as an ultra vires claim; or (2) when the suit challenges the validity

                                               4
of a statute. Because appellant makes no claim a statute is invalid, the latter exception is
not at issue in this case.

                                 The Ultra Vires Exception

       An ultra vires claim against a government official—that is, a suit against a
government official for acting outside his or her authority and seeking to require the
official to comply with statutory or constitutional provisions—is not barred by sovereign
immunity. City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). To fall within
the ultra vires exception, “a suit must not complain of a government officer’s exercise of
discretion, but rather must allege, and ultimately prove, that the officer acted without legal
authority or failed to perform a purely ministerial act.” Id. “The ultra vires suit seeks to
enforce existing policy, not alter it.” Stiefer v. Moers, No. 14-14-00617-CV, 2015 WL
6950104, at *3 (Tex. App.—Houston [14th Dist.] Nov. 10, 2015, no pet.) (mem. op.)
(citing Lone Star Coll. Sys. v. Immigration Reform Coalition of Tex. (IRCOT), 418
S.W.3d 263, 272 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (citing Heinrich, 284
S.W.3d at 372)). To meet the ultra vires exception to governmental immunity, a plaintiff
must allege, and ultimately prove, that the officer either acted without legal authority or
failed to perform a purely ministerial act. Id. An officer acts without legal authority if he
“exceeds the bounds of his granted authority or if his acts conflict with the law itself.”
Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016).
The exception to immunity allows only prospective declaratory or injunctive relief, not
retroactive relief. Heinrich, 284 S.W.3d at 374–77. “As Heinrich made clear, immunity
for an ultra vires act is only a waiver with regard to bringing future acts into compliance
with the law.” City of Galveston v. CDM Smith, Inc., 470 S.W.3d 558, 569 (Tex. App.—
Houston [14th Dist.] 2015, pet. denied) (citing Heinrich, 284 S.W.3d at 374).




                                              5
                                          ANALYSIS

                                    Denial of Discovery

      In her first issue, appellant claims the trial court erred in failing to hear motions
regarding discovery prior to ruling on the appellees’ motion to dismiss and plea to the
jurisdiction. Further, appellant complains the trial court erred in failing to order discovery.

      In her brief, appellant argues that she needed to know what occurred at, and who
attended or was privy to, the meeting held January 7, 2016, in order “to determine the full
nature and extent of violation of [her] rights to due process, e.g., by introduction of any
evidence to any FGP [Factual Grievance Panel] member in [her] absence.” Appellant
contends her discovery requests and subpoenas were designed “to determine what
information was imparted to the three members of the [FGP]” at that meeting. Appellant
does not, however, identify how the information described above would supply relevant
jurisdictional facts so as to affirmatively demonstrate the trial court’s jurisdiction.

      In order to obtain relief on this issue, appellant must show how the discovery she
sought was material to the trial court’s assessment of the plea to the jurisdiction. Quested
v. City of Houston, 440 S.W.3d 275, 283 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
The only claim that appellant suggests was impacted by the lack of discovery is the
violation of her right to due process. Regarding this claim, appellees asserted that
appellant failed to meet the ultra vires exception to sovereign immunity. Specifically,
appellees asserted appellant did not identify any action taken by Callender or Jacobs
without legal authority; appellant sought retrospective relief; and appellant did not allege
a continuing violation.

      As discussed below, in regards to the trial court’s grant of appellees’ plea to the
jurisdiction appellant contends her due process claim is a “takings” claim, not an ultra
vires claim. We conclude, infra, this is not a takings claim. Accordingly, the discovery


                                              6
sought cannot support that claim. To the extent appellant is arguing ultra vires on the due
process claim, as noted below, appellant has not pleaded the necessary element of
prospective relief. Therefore, appellant could not prevail even if the discovery sought
were allowed and we could not determine it was error to grant appellees’ plea to the
jurisdiction without first allowing the requested discovery. For these reasons, we cannot
conclude the trial court abused its discretion. See Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150, 161–62 (Tex. 2004); Quested, 440 S.W.3d at 282. Issue one is overruled.

                                    Election of Remedies

      Appellant’s second issue asserts the trial court erred in granting appellees’ motion
to dismiss Callender and Jacobs pursuant to section 101.106 of the Texas Civil Practices
and Remedies Code because it is not applicable to her suit. Section 101.106 is entitled
Election of Remedies and states:

      (f) If a suit is filed against an employee of a governmental unit based on
      conduct within the general scope of that employee’s employment and if it
      could have been brought under this chapter against the governmental unit,
      the suit is considered to be against the employee in the employee’s official
      capacity only. On the employee’s motion, the suit against the employee shall
      be dismissed unless the plaintiff files amended pleadings dismissing the
      employee and naming the governmental unit as defendant on or before the
      30th day after the date the motion is filed.
Tex. Civ. Prac. & Rem. Code § 101.106.

      Appellant first argues Callender was not an “employee.” Appellant relies upon the
following definition of employee:

      . . . a person, including an officer or agent, who is in the paid service of a
      governmental unit by competent authority, but does not include . . . a person
      who performs tasks the details of which the governmental unit does not have
      a legal right to control.



                                             7
      Tex. Civ. Prac. & Rem. Code § 101.001(2). According to appellant, because
UTMB’s regulations provide Callender’s decision is “final” he is not subject to UTMB’s
control and therefore not an “employee.” Appellant does not refer this court to the record
wherein these regulations are located. Accordingly, she has not adequately briefed this
argument. See Tex. R. App. 38.1(f). See Canton–Carter v. Baylor Coll. of Med., 271
S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.). We therefore do not
address the effect, if any, of UTMB’s regulations on Callender’s status as an employee.

      The above definition of employee “does not require that a governmental unit
control every detail of a person’s work. Murk v. Scheele, 120 S.W.3d 865, 867 (Tex.
2003) (emphasis in the original). The fact that an employee exercises some independent
judgment does not mean that he is not an employee under the TTCA. Id. Callender’s
exercise of his own professional judgment to make final decisions does not, by itself,
vitiate UTMB’s right to control. Id. To hold otherwise would mean that “government
workers exercising any kind of discretionary judgment (such as legislators, judges, and
many others) could never be “employees,” and thus never immune from suit. This would
make the statute of little effect. See Tex. Gov’t Code § 311.021(2) (stating entire statute
must be presumed to be effective); City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex.
1995) (holding statutes should not be construed to make them pointless).” Dalehite v.
Nauta, 79 S.W.3d 243, 246 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).
Appellant does not dispute that Callendar was in the paid service of UTMB at the relevant
time. Tex. Civ. Prac. & Rem. Code § 101.001(2). Accordingly, we conclude Callender is
an employee within the purview of section 101.106. See Tex. Civ. Prac. & Rem. Code §§
101.001(2), 101.106.

      Appellant next argues section 101.106 is not applicable because the conspiracy
claim could not have been brought against UTMB. Subsection (f) provides that if a suit
is filed against an employee of a governmental unit and could have been brought against
                                            8
the governmental unit, the suit against the employee is in his official capacity only. See
Tex. Civ. Prac. & Rem. Code § 101.106(f).1

       Barring an independent statutory waiver of immunity, tort claims against the
government are brought under the TTCA for purposes of subsection (f) even when the
TTCA does not waive immunity for those claims. Moore v. Barker, No. 14-17-00065-
CV, 2017 WL 4017747, at *7 (Tex. App.—Houston [14th Dist.] Sept. 12, 2017, no pet.);
Tex. Civ. Prac. Rem. Code § 101.106(f). See also Alexander v. Walker, 435 S.W.3d 789,
792 (Tex. 2014) (holding same where plaintiff brought claims against officers with the
Harris County Sheriff’s Department for assault, conspiracy, slander, false arrest, false
imprisonment, and malicious prosecution).

       Appellant did not assert an independent statutory waiver of immunity.
Accordingly, appellant’s tort claims against Callender and Jacobs could have been
brought under the TTCA against UTMB. See Kraidieh v. Nudelman, No. 01–15–01001–
CV, 2016 WL 6277409, at *6 (Tex. App.—Houston [1st Dist.] Oct. 27, 2016, no pet.)
(mem. op.) (holding where appellant did not assert that claim was brought under another
statute that independently waived immunity, assault claim was one that could have been
brought under TTCA (citing Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011)).
Because appellant’s conspiracy claim could have been brought against UTMB, it is
considered to be against Callender and Jacobs in their official capacity only. See Moore,
2017 WL 4017747, at *7; Alexander, 435 S.W.3d at 792; Kraidieh, 2016 WL 6277409,
at *6. Having been sued in their official capacity, Callender and Jacobs were entitled to
dismissal pursuant to section 101.106(f) unless appellant filed an amended pleading to
dismiss them. See Tex. Civ. Prac. & Rem. Code § 101.106(f); see Moore, 2017 WL


       1
         Because appellant does not argue on appeal that either Callender or Jacobs were not acting
within the scope of his employment, we do not address it.

                                                9
4017747, at *7; Alexander, 435 S.W.3d at 792; Kraidieh, 2016 WL 6277409, at *6.
Because appellant did not file amended pleadings, the trial court did not err in granting
appellees’ motion to dismiss. See Moore, 2017 WL 4017747, at *7; Kraidieh, 2016 WL
6277409, at *6.

      Appellant further claims section 101.106 is unconstitutional as applied to this case
because it is an unreasonable bar to access to the courts, see Tex. Const. art. I, Sec. 13,
and is a legislative infringement on the independence of the courts, see Tex. Const. art. I,
Sec. 2. Appellant argues against the application of Franka to uphold the constitutionality
of section 101.106 because this is a “takings” claim, not a tort claim and Franka appears
to limit itself to common-law claims.

      We considered and rejected an open-courts challenge to 101.106(f) in a pre-Franka
case. Hintz v. Lally, 305 S.W.3d 761, 772–73 (Tex. App.—Houston [14th Dist.] 2009, no
pet.) (applying analysis in Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex. 1995), of pre-
2003 version to current version of section 101.106). See also Kamel v. Univ. of Tex.
Health Sci. Ctr. at Houston, 333 S.W.3d 676, 688 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied) (holding current version of section 101.106(f) does not violate open courts
provision); Williams v. Nealon, 394 S.W.3d 9, 12 (Tex. App.—Houston [1st Dist.] 2012,
pet. denied) (same). Thus, while Franka supports our decision in Hintz, we did not rely
upon it and appellant makes no challenge to Hintz’s reasoning. Accordingly, for the
reasons stated in Hintz we hold section 101.106 is not unconstitutional as applied to this
case. Issue two is overruled.

                                  PLEA TO THE JURISDICTION

                                        Due Process Claims

      In her third issue, appellant claims the trial court erred in granting appellees’ plea
to the jurisdiction on her due process claims. Appellant’s argument for this issue is unclear


                                             10
but as we interpret her various assertions appellant is contending that this is a “takings”
claim under the Texas Constitution and as such she did not have to plead the ultra vires
exception. See Tex. Const. art. I, Sec. 19. Alternatively, appellant requests leave to
replead.

      “When a plaintiff fails to plead facts that establish jurisdiction, but the petition does
not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading
sufficiency and the plaintiff should be afforded the opportunity to amend.” County of
Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). “On the other hand, if the pleadings
affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be
granted without allowing the plaintiff an opportunity to amend.” Id.

      In her pleadings, appellant complained of having to pay for the Civil Treatment for
Leaders course that she was ordered to attend, her suspension without pay for two weeks,
and her ineligibility for participation in the At Risk Incentive plan. The actions appellant
complains of do not constitute an exercise of sovereign powers of eminent domain. See
General Servs. Comm’n v. Little–Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001) (holding
that when the state withholds property in a contractual dispute, it is not acting as a
sovereign invoking powers of eminent domain, but rather as a private party to a contract
invoking rights expressed or implicit in the contract); see also Leach v. Tex. Tech Univ.,
335 S.W.3d 386, 398 (Tex. App.—Amarillo 2011, pet. denied) (concluding claim for
compensation due under contract for performance of services as the head football coach
was a contractual dispute that fell outside the takings clause). Thus, appellant’s pleadings
affirmatively demonstrate her due process claim is not a “takings” claim.

      Having not asserted a takings claim, appellant was required to plead a cause of
action within the ultra vires exception in order to avoid dismissal on immunity grounds.
See Heinrich, 284 S.W.3d at 368. Appellees’ plea to the jurisdiction asserted that
appellant failed to meet the ultra vires exception to sovereign immunity. We agree.

                                             11
Appellant’s pleadings pursue retroactive relief. The ultra vires exception to sovereign
immunity does not allow retroactive relief. Heinrich, 284 S.W.3d at 374–77. Immunity
for an ultra vires act is only a waiver with regard to prospective relief. See CDM Smith,
Inc., 470 S.W.3d at 569 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (citing
Heinrich, 284 S.W.3d at 374). Appellant does not contend that she sought prospective
relief but instead asserts that she is not limited to such for a takings claim. We have
determined otherwise.

      The ultra vires exception does not apply to UTMB, a state agency, as ultra vires
claims are actionable only against individuals. See Heinrich, 284 S.W.3d at 373.
Accordingly, the trial court did not err in granting UTMB’s plea to the jurisdiction.

      With respect to the individuals, because appellant’s pleadings establish this is not
a takings claim and she does not claim to have pled, however imperfectly, an ultra vires
claim, we conclude the trial court did not err in granting appellees’ plea to the jurisdiction
as to appellant’s due process claims without affording her the opportunity to amend. Issue
three is overruled.

                                  Discrimination Claims

      Appellant’s fourth issue asserts the trial court erred in granting appellees’ plea to
the jurisdiction as to her discrimination claims, brought under the Texas Commission on
Human Rights Act (“TCHRA”). In her original petition, appellant’s first cause of action
was for “Discrimination and Attempted Constructive Discharge.” We first note that
appellant makes no argument in her brief that the trial court erred in dismissing her claim
for “attempted constructive discharge.”

      Appellees’ plea to the jurisdiction asserted these claims were barred because
appellant failed to allege facts establishing that she exhausted her remedies with the Texas
Workforce Commission (“TWC”) within 180 days of their occurrence; that she did not


                                             12
exhaust religious or age discrimination allegations in her charge of discrimination; and
that she had not alleged a prima facie case for discrimination.

       We agree with appellees that appellant failed to address the first reason in her brief2
but that determination is not dispositive given that this appeal is from the grant of a plea
to the jurisdiction. As noted above, unless the petition affirmatively demonstrates
incurable defects in jurisdiction, “the issue is one of pleading sufficiency and the plaintiff
should be afforded the opportunity to amend.” County of Cameron, 80 S.W.3d at 555.
Thus appellant’s alleged pleading failure would not entitle appellees to dismissal of
appellant’s discrimination claims unless her pleadings affirmatively negate exhaustion.

       In her discrimination claim, appellant complained of “sanctions” without
specification. However, her recitation of the “Facts” identified the following actions taken
against her: (1) on May 12, 2015, Jacobs ordered her to attend a Civil Treatment for
Leaders course, for which she was to bear all costs, (2) on August 6, 2015, Jacobs
informed appellant that she would be suspended without pay for two weeks and would be
ineligible for participation in the At Risk Incentive plan.3 Appellant’s petition fails to
allege any facts demonstrating exhaustion of her administrative remedies by first filing a
complaint within 180 days of these alleged discriminatory acts. See Schroeder v. Tex. Iron



       2
          The rules of appellate procedure do not allow appellant to raise a new issue that was not
discussed in her original brief, even if the new issue is raised in response to a matter in the
appellee’s brief. Yeske v. Piazza Del Arte, Inc., 513 S.W.3d 652, 672 n.5 (Tex. App.—Houston [14th
Dist.] 2016, no pet.); Dallas Co. v. Gonzalez, 183 S.W.3d 94, 104 (Tex. App.—Dallas 2006, pet. denied)
(“A reply brief is not intended to allow an appellant to raise new issues.”); Lopez v. Montemayor, 131
S.W.3d 54, 61 (Tex. App.—San Antonio 2003, pet. denied) (holding arguments raised for the first time
in appellant’s reply brief were not properly before the court).
       3
         In their plea to the jurisdiction, appellees asserted appellant’s administrative claim had to be
filed by November 8, 2015, to complain of the course, and by February 2, 2016, for her suspension
without pay and ineligibility for the incentive plan. Her charge with the TWC, appellees asserted, was
filed on February 5, 2016, outside the 180-day period for both claims. In her response to the plea,
appellant attached an Employment Discrimination Complaint Form dated October 20, 2015.

                                                   13
Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991); Tex. Lab. Code § 21.202(a). However, it
also does not affirmatively negate exhaustion.

      This brings us to appellees’ second reason, that appellant did not exhaust religious
or age discrimination allegations in her charge of discrimination. Appellant’s Charge of
Discrimination, filed February 5, 2016, asserted she was discriminated against on the
basis of her gender. On appeal, appellant argues appellees’ cannot rely upon the fact she
checked the “wrong box.” Appellant did not “check” any box but affirmatively stated “I
believe I have been discriminated against . . . due to my Sex (Female).” The original
complaint form alleged discrimination on the basis of gender, as well as religion or age.
Thus this reason would not entitle appellees to an affirmance of the trial court’s order
dismissing appellant’s discrimination claim in its entirety. See Lopez v. Tex. State Univ.,
368 S.W.3d 695, 702-03 (Tex. App.—Austin 2012, pet. denied) (affirming some claims
for failure to exhaust but reversing and remanding those claims that were exhausted at the
administrative level).

      The last reason presented in appellees’ plea to the jurisdiction was that appellant
failed to allege a prima facie case. Under the TCHRA, which provides that an employer
may not, on the basis of race, color, disability, religion, sex, national origin, or age,
discriminate in any manner against an employee in connection with compensation or the
terms, conditions, or privileges of employment, governmental immunity is expressly
waived. See Tex. Lab. Code § 21.051; Mission Consol. Indep. Sch. Distr. v. Garcia, 253
S.W.3d 653, 660 (Tex. 2008) (“Garcia I ”) (holding that “the TCHRA clearly and
unambiguously waives immunity”). The TCHRA’s waiver of immunity only applies in
those suits where the plaintiff actually alleges a violation within the scope of the
statute. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012)
(“Garcia II ”). The elements of a prima facie case are jurisdictional when a governmental
unit has been sued. Id. at 635–37. If the suit involves claims of disparate treatment, the

                                            14
prima facie case requires proof that the discrimination claimant was treated less favorably
than a similarly situated comparator from the opposing class. See Univ. of Tex. Med.
Branch at Galveston v. Petteway, 373 S.W.3d 785, 788–89 (Tex. App.—Houston [14th
Dist.] 2012, no pet.).

      Appellant alleged that she was treated differently as compared to two male senior
executives or faculty members of UTMB who were reported to have been involved in
sexual misconduct. On appeal, appellant claims she was treated “far worse” than the men
who were given “golden parachutes” and then “either terminated or permitted to resign.”

      Appellees contend the two men were not similarly situated to appellant because she
was not alleged to have committed the same work infraction. Further, appellees assert
appellant was not treated less favorably because the two men were discharged or forced
to resign.

      Appellant argues exact equivalency is not required to support a claim of disparate
treatment. See Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 n.3 (Tex. 2005).
While this is true, appellant’s pleadings do not allege a prima facie case. “Employees are
similarly situated if their circumstances are comparable in all material respects, including
similar standards, supervisors, and conduct. Id. Appellant’s pleadings do not allege such
comparable circumstances in this case. Clearly, she has not been terminated and does not
allege any offer was made to tempt her to resign, e.g., a golden parachute. There are no
facts stated as to the office either man held or what work infraction they committed.
Again, appellant’s pleadings are insufficient, but they do not affirmatively negate
jurisdiction. Accordingly, she should be afforded the opportunity to amend. See County
of Cameron, 80 S.W.3d at 555. We sustain appellant’s fourth issue and conclude the trial
court erred in granting appellees’ plea to the jurisdiction as to appellant’s discrimination
claims without affording an opportunity to replead.



                                            15
                             Claim for Declaratory Judgment

      In her final and fifth issue, appellant argues the trial court erred in granting
appellees’ plea to the jurisdiction as to her claim for declaratory judgment. Appellant
sought a declaration that she is a tenured employee for all purposes, in contravention of a
document issued June 1, 2011, that bifurcated appointments such as hers into an unpaid
tenured portion and a paid non-tenured portion. Appellant contends that although the
declaration would make UTMB sustain her grievance and have to pay her the monies
wrongfully withheld, the relief sought is not monetary damages. Appellees moved to
dismiss the declaratory judgment claim on the basis that appellant cannot show UTMB
waived immunity from suit for what is essentially a contract dispute.

      The Declaratory Judgments Act (DJA) generally permits as follows:

      (a) A person interested under a deed, will, written contract, or other writings
      constituting a contract or whose rights, status, or other legal relations are
      affected by a statute, municipal ordinance, contract, or franchise may have
      determined any question of construction or validity arising under the
      instrument, statute, ordinance, contract, or franchise and obtain a declaration
      of rights, status, or other legal relations thereunder.
Tex. Civ. Prac. & Rem. Code § 37.004(a). However, it is well established that Texas has
not waived immunity for a declaratory judgment claim related to government contract
disputes. See Texas Natural Res. Conservation Comm’n, 74 S.W.3d at 855-56. “The DJA
does not extend a trial court’s jurisdiction, and a litigant’s request for declaratory relief
does not confer jurisdiction on a court or change a suit’s underlying nature.” Id. at 855
(citing State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994)). A private party may seek
declaratory relief against state officials who allegedly act without legal or statutory
authority, the ultra vires exception, because such suits do not attempt to subject the State
to liability and are therefore not “suits against the State.” Id. Accordingly, declaratory-
judgment actions that meet the ultra vires exception are not barred by sovereign


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immunity. Id.; see also Heinrich, 284 S.W.3d at 372–73 (recognizing the DJA does not
waive a governmental entity’s immunity against a claim that government actors have
violated the law).

      However, declaratory-judgment suits against state officials seeking to establish a
contract’s validity, enforce performance under a contract, or impose contractual liabilities
are suits against the State. Texas Natural Res. Conservation Comm’n, 74 S.W.3d at 855.
“That is because such suits attempt to control state action by imposing liability on the
State.” Id. at 856. Suits such as these cannot be maintained without legislative permission
and a private party cannot circumvent the State’s sovereign immunity by characterizing a
suit for money damages, such as a contract dispute, as a declaratory-judgment claim. Id.;
see also Multi-County Water Supply Corp. v. City of Hamilton, 321 S.W.3d 905, 909
(Tex. App.—Houston [14th Dist.] 2010, pet. denied) (holding that immunity barred suit
against city and district seeking declaration of rights under water supply agreement).

      There is no general right to sue a state agency for a declaration of rights. Sawyer
Trust, 354 S.W.3d at 388. Thus, immunity will bar even an otherwise proper DJA suit
that has the effect of establishing a right to relief against the State or its political
subdivisions for which the Legislature has not waived immunity. Id. As noted above,
appellant concedes that a declaratory judgment in her favor would establish a right to
relief for monetary damages against the State. Appellant makes no claim that she has
obtained legislative permission to bring this claim. Appellant does not seek injunctive
relief. See Heinrich, 284 S.W.3d at 373–77 (stating that immunity does not bar a suit for
prospective injunctive relief against government actors in their official capacity for
violating the law). Accordingly, the trial court did not abuse is discretion in granting
appellees’ plea to the jurisdiction on appellant’s declaratory-judgment claim. Issue five is
overruled.


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                                       CONCLUSION

      We reverse the trial court’s judgment granting appellees’ plea to the jurisdiction on
appellant’s claims brought under the TCHRA and remand for proceedings consistent with
this opinion. In all other respects, the judgment of the trial court is affirmed.




                                        /s/    John Donovan
                                               Justice



Panel consists of Justices Christopher, Donovan, and Jewell.




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