                          NUMBER 13-17-00659-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


TEXAS DEPARTMENT OF
PUBLIC SAFETY,                                                                Appellant,

                                            v.

LEROY TORRES,                                                                  Appellee.


               On appeal from the County Court at Law No. 1
                        of Nueces County, Texas.


                            DISSENTING OPINION

           Before Justices Contreras, Benavides, and Longoria
                Dissenting Opinion by Justice Benavides

      I write separately to respectfully dissent to the majority’s conclusion that the trial

court erred in denying the Department of Public Safety’s (DPS) plea to the jurisdiction

regarding Leroy Torres’s Uniformed Services Employment and Reemployment Rights Act

(USERRA) claim. See 38 U.S.C.A. §§ 4301–4335 (West, Westlaw through P.L. 115-
223). The majority’s opinion leads our armed forces to have no remedy in state courts

when they have faced employment discrimination from a state agency due to their service

to our country.

       A.     Congressional Actions

       The majority lays out a detailed history of abrogation of immunity by Congress

through Supreme Court case law. To find abrogation by Congress, there must be an

unequivocal intent to do so by Congress and action pursuant to a constitutional provision

allowing such abrogation. See Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d 192, 195

(Tex. 2010). Although DPS and the majority relies on Alden v. Maine, 527 U.S. 706

(1999), we cannot overlook the legislative committee report that came out of the USERRA

legislation. House Report Number 105-448, which coincided with the introduction of the

current version of USERRA, states that USERRA is a “continuation of policy enacted in

1940” and “applies to all employers, regardless of their size.” H.R. Rep. No. 105-448, at

2 (1998). The House Report addresses the position taken by some states that the

Eleventh Amendment makes USERRA inapplicable to state agencies, addressing the

holding in Seminole Tribe of Florida v. Florida. Id. at 3 (citing 517 U.S. 44 (1996)). The

House Report states the

       decisions [also referring to an Indiana and a Michigan court decision under
       former versions of USERRA] threaten not only a long-standing policy
       protecting individuals’ employment right [sic], but also raise serious
       questions about the United States [sic] ability to provide for a strong national
       defense. Far more than in the days when the Constitution was being
       drafted, the peace enjoyed throughout much of the world is dependent on
       the responsive and powerful armed forces of the United States.
       Accordingly, to assure that the policy of maintaining a strong national
       defense is not inadvertently frustrated by States refusing to grant
       employees the rights afforded to them by USERRA, the committee is
       favorably reporting this legislation.



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Id. at 5.

        It is hard to imagine, based on the language found in the House Report requesting

the Committee on Veterans’ Affairs to recommend the current version of the legislation to

a full House vote, that Congress did not intend to allow private citizens who served in the

armed forces the ability to sue state agencies under USERRA in state courts. The report

shows that Congress intended to protect citizens who served our country in suits against

a state when they were discriminated against by an employer upon returning from

combat. The House Report supports the intention to abrogate state sovereign immunity

under USERRA.

        B.    State Actions

        The Texas Legislature also added certain provisions to the Texas Government

Code which provide special protections to members of the armed forces returning to their

former employment. Those protections give former servicemembers a remedy to seek if

they are discriminated against. I argue that those provisions prove an intent of the Texas

Legislature to waive sovereign immunity in these narrow exceptions.

        The parties and the majority refer to chapter 437 of the government code, entitled

“Texas Military.” See TEX. GOV’T CODE ANN. § 437.401–419 (titled “Administrative Review

and Judicial Enforcement”) (West, Westlaw through 2017 1st C.S.). A member of the

state military forces would be entitled to restoration to his former position of employment

if he was called into duty. See id. § 437.202(d) (West, Westlaw through 2017 1st C.S.).

Any issues with reemployment are referred to the Texas Workforce Commission. See id.

§ 437.402(a). Although chapter 437 shows an intent of the legislature to protect Texas

service members, the majority mainly refers to its administrative remedies and finds that



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Torres has not exhausted all administrative remedies available to him. However, under

USERRA, Torres could file a claim with the Secretary of Labor and petition the United

States Attorney General to represent him in federal court or could file a claim on his own

in state district court. See 38 U.S.C.A. § 4323(a)(1), (3) (emphasis added). Torres is not

required under USERRA to first file a claim with an administrative agency. See id.

Therefore, the majority’s statement that Torres has not exhausted all his administrative

remedies and not raised facts showing the trial court had jurisdiction over his claims is

puzzling. Additionally, the majority’s statement that “assuming but not deciding that

section 437.412 clearly and unambiguously waives sovereign immunity for certain claims”

but not Torres’s is confusing. It appears the majority concludes that the State’s sovereign

immunity would be waived if Torres had exhausted all his administrative remedies.

However, since no specific administrative procedures are required under USERRA and

Torres followed the requirements of USERRA, then it would rationally follow that the

majority agrees that chapter 437 would waive the state’s sovereign immunity.

         Besides chapter 437, I would argue that chapter 613 of the government code is

applicable to Torres’s claim. While I agree that chapter 437 applies to Texas state

military, chapter 613, titled “Reemployment Following Military Service,” includes wording

to specifically include federal and state military servicemembers. The majority addresses

government code chapter 613 in a footnote.1

         Chapter 613, defines “military service” as service as a member of the Armed

Forces of the United States, Texas National Guard, Texas State Guard, or reserve




         1   Although as the majority points out, neither party raised this section in their briefs before this
Court.

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component of the Armed Forces of the United States. TEX. GOV’T CODE ANN. § 613.001

(West, Westlaw through 2017 1st C.S.). Chapter 613.002 states:

      (a)    A public employee who leaves a state position or a position with a
             local governmental entity to enter active military service is entitled to
             be reemployed:

             (1)    by the state or the local governmental entity;

             (2)    in the same department, office, commission, or board of this
                    state, a state institution, or local governmental entity in which
                    the employee was employed at the time of the employee’s
                    induction or enlistment in, or order to, active military service;
                    and

             (3)    in:

                    (A)    the same position held at the time of the induction,
                           enlistment, or order;

                    or

                    (B)    a position of similar seniority, status, or pay.

      (b)    To be entitled to reemployment under Subsection (a), the employee
             must be:

             ...

             (2)    physically and mentally qualified to perform the duties of that
                    position.

Id. § 613.002 (West, Westlaw through 2017 1st C.S.). Chapter 613.003 includes:

      A public employee who cannot perform the duties of a position to which the
      employee is otherwise entitled under Section 613.002 because of a
      disability the employee sustained during military service is entitled to be
      reemployed in the department, office, commission, or board of the state, a
      state institution, or a local government entity in a position that the employee
      can perform and that has:

      (1)    like seniority, status, and pay as the former position; or

      (2)    the nearest possible seniority, status, and pay to the former position.



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Id. § 613.003 (West, Westlaw through 2017 1st C.S.).

       Additional provisions in chapter 613 lay out the procedure for compliance with the

law:

       (a)    If a public official fails to comply with a provision of Subchapter A, a
              district court in a district in which the individual is a public official may
              require the public official to comply with the provision on the filing of
              a motion, petition, or other appropriate pleading by an individual
              entitled to a benefit under the provision.

Id. § 613.021 (West, Westlaw through 2017 1st C.S.). Chapter 613.022 allows for the

district attorney in the appropriate district to act in place of the individual filing under this

provision. See id. § 613.022.

       Chapter 613 allows a servicemember who was aggrieved by a public official (which

a state agency would fall under) to file suit in a state district court and force the official to

comply with the reemployment requirements of chapter 613, similar to USERRA. Id.

Although the majority states that chapter 613 would not apply in this case because Torres

only requested monetary damages in his petition, doing so would ignore that chapter 613

falls in line with one of the remedies offered under USERRA, which can also include a

request for reemployment. See id.; 38 U.S.C.A. § 4323. By following the majority’s

reasoning, it would seem that if Torres had filed suit and requested reemployment (as he

originally tried to do upon his return from active duty) instead of requesting damages

under USERRA, then the majority would agree there was abrogation by the state

legislature. But due to the fact Torres requested damages, as allowed by USERRA, the

majority finds there is no abrogation by the Texas Legislature under this provision. We

cannot split a code provision in half. Either we find that under section 613, the Texas

legislature clearly intended to abrogate its sovereign immunity in cases involving



                                               6
reemployment of military servicemembers or we remand this case back to the trial court

and allow Torres to replead his grounds.

       As a final note, USERRA also includes the term “private employer,” which includes

a political subdivision of the State. 38 U.S.C.A. § 4323(i). A “political subdivision” is

defined as a “division of a state that exists primarily to discharge some function of local

government.”    Political Subdivision, BLACK’S LAW DICTIONARY (10th ed. 2014).            An

individual bringing suit under USERRA can sue a “private employer” in federal district

court. See 38 U.S.C.A. § 4323(b)(3). Chapter 613 also finds that servicemembers that

previously had positions with local governmental entities have the right to sue for

reemployment. See TEX. GOV’T CODE ANN. § 613(a)(1). Congress specifically included

language to make sure a local government agency could be sued in federal court and

seemingly not be able to assert sovereign immunity to avoid suit. See 38 U.S.C.A. §

4323. The Texas Legislature also included local government agencies in its code to give

employees a remedy against reemployment discrimination. See TEX. GOV’T CODE ANN. §

613(a)(1). For this Court to hold that although the federal or local governments are open

to suit for discrimination, but not the state, is illogical. The federal and state provisions

were written in such a way to allow for abrogation of sovereign immunity in federal and

state courts to protect our servicemembers upon return from duty.

       C.      Conclusion

       When taken together, the legislative report created with the USERRA legislation,

as well as the government code chapters 437 and 613, show an intent of both the federal

and state legislatures to waive sovereign immunity in Texas. Torres’s claim should be




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allowed to go forward, or in the alternative, this Court should remand to allow Torres an

opportunity to replead the allegations in his petition. I respectfully dissent.




                                                                 GINA M. BENAVIDES,
                                                                 Justice

Delivered and filed the
20th day of November, 2018.




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