                                 NO. 12-12-00284-CV

                           IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

DONNA D. BORDEN,                               §      APPEAL FROM THE 241ST
APPELLANT

V.
                                               §      JUDICIAL DISTRICT COURT
SMITH COUNTY COMMUNITY
SUPERVISION AND CORRECTIONS
DEPARTMENT,
APPELLEES                                      §      SMITH COUNTY, TEXAS
                                MEMORANDUM OPINION
       Donna B. Borden appeals the trial court’s order granting Smith County Community
Supervision and Corrections Department’s (the CSCD) plea to the jurisdiction. In three issues,
Borden contends that the trial court improperly granted the CSCD’s plea because (1) it had
waived immunity from suit and (2) she was not required to exhaust the grievance process set
forth in the CSCD’s policies and procedures manual. We reverse and remand.


                                        BACKGROUND
       Borden was an employee of the CSCD. Between 2007 and 2009, she developed a rash
she believed was caused by mold in the CSCD office building. After consulting physicians
concerning her ailments, Borden informed the CSCD that she would not return to work and
informed her supervisor that she intended to file a workers’ compensation claim. Borden was
subsequently terminated.
       Borden declined to seek recourse through the three-step grievance process outlined in the
CSCD’s policies and procedures manual. Instead, on March 25, 2011, she filed the instant
lawsuit pursuant to Texas Labor Code, Section 451.001 (the Anti-Retaliation Law) alleging that
the CSCD terminated her employment in retaliation for her filing a workers’ compensation
claim. The CSCD filed a plea to the jurisdiction arguing that it had not waived immunity from
suit under the Anti-Retaliation Law and, alternatively, Borden had failed to exhaust her
administrative remedies prior to filing suit. The trial court granted the CSCD’s plea, and this
interlocutory appeal1 followed.


                                         PLEA TO THE JURISDICTION
        In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction for
lawsuits in which the state or certain governmental units have been sued unless the state consents
to suit. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004);
Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 3 (Tex. 2000); Tex. Dep’t of Transp. v. Jones,
8 S.W.3d 636, 638 (Tex. 1999); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997).
Sovereign immunity includes two distinct principles, immunity from suit and immunity from
liability.     Miranda, 133 S.W.3d at 224.            Although sovereign immunity and governmental
immunity are common law doctrines, the supreme court has traditionally deferred their waiver to
the legislature, assuming the legislature to be better suited to balance the conflicting policy issues
associated with waiving immunity. Tex. Office of Comptroller of Pub. Accounts v. Saito, 372
S.W.3d 311, 313 (Tex. App.–Dallas 2012, pet. denied). Immunity from liability is an affirmative
defense, while immunity from suit deprives a court of subject matter jurisdiction. Miranda, 133
S.W.3d at 224. A waiver of sovereign immunity requires clear and unambiguous statutory
language. See TEX. GOV’T CODE ANN. § 311.034 (West 2013); Saito, 372 S.W.3d at 313.
Whether sovereign immunity has been waived and whether the trial court has subject matter
jurisdiction are questions of law and are reviewed de novo. See Saito, 372 S.W.3d at 313.


                                     WAIVER OF IMMUNITY FROM SUIT
        In her third issue, Borden argues that the trial court erred in granting the CSCD’s plea to
the jurisdiction because the legislature waived the CSCD’s immunity from suit as a state agency
for suits brought under the Anti-Retaliation Law.




        1
             See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2012).


                                                        2
The Anti-Retaliation Law and the SAA
       The Anti-Retaliation Law is made applicable to state agencies by the State Application
Act (SAA).2 See TEX. LAB. CODE ANN. § 501.002(a)(10) (West 2006); Saito, 372 S.W.3d at
313. A related statute, the Political Subdivision Law (PSL),3 incorporates the Anti-Retaliation
Law for certain political subdivisions. See TEX. LAB. CODE ANN. § 504.002(a)(10); Saito, 372
S.W.3d at 313–14. In 1995, the supreme court concluded that an earlier version of the PSL
waived the sovereign immunity of political subdivisions for anti-retaliation claims. See City of
La Porte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995).
       Section 501.002(b) of the SAA provides as follows: “For purposes of this chapter and
Chapter 451, the individual state agency shall be considered the employer.” TEX. LAB. CODE
ANN. § 501.002(b). In Fernandez, the supreme court concluded that similar language in the
1989 version of the SAA was a clear and unambiguous waiver of the sovereign immunity of state
agencies for anti-retaliation claims. See Fernandez, 28 S.W.3d at 6–8; Saito, 372 S.W.3d at
314; see also Tex. Parks & Wildlife Dept. v. Flores, No. 03-11-00605-CV, 2012 WL 3239114,
at *2 (Tex. App.–Austin Aug. 10, 2012, pet. denied) (mem. op., not designated for publication).
       Here, the CSCD argues that the Anti-Retaliation Law read together with the SAA do not
amount to a clear and unambiguous waiver of immunity. Whether the current version of the
SAA waives sovereign immunity for anti-retaliation claims is an issue of first impression in this
court. However, our sister courts of appeals in El Paso, Corpus Christi, Dallas, and Austin have
each addressed the issue.          Each of these courts concluded that the legislature has not
substantively amended the SAA on the issue of waiver of immunity subsequent to the supreme
court’s decision in Fernandez and that the subsequent enactment of Texas Government Code,
Section 311.034 does not alter the supreme court’s analysis. See, e.g., Saito, 372 S.W.3d at 314;
Tex. Dept. of Family & Protective Services v. Parra, 347 S.W.3d 362, 365 (Tex. App.–El Paso
2011, pet. denied); see also Flores, 2012 WL 3239114, at *5; Office of Atty. Gen. v. Diaz, No.
13-10-00479-CV, 2011 WL 4998684, at *2 (Tex. App–Corpus Christi Oct. 20, 2011, pet.
denied).




       2
           See TEX. LAB. CODE ANN. §§ 501.001–.051 (West 2006 & Supp. 2012).
       3
           See TEX. LAB. CODE ANN. §§ 504.001–.073 (West 2006 & Supp. 2012).


                                                     3
The Norman Decision and Its Effect on the SAA
         In reaching their respective holdings, each of these courts discussed the supreme court's
holding in Norman, 342 S.W.3d at 57–58.4                      In Norman, the court concluded that due to
amendments to the PSL, its prior decision recognizing a waiver of sovereign immunity for
retaliatory discharge claims was no longer controlling. See Norman, 342 S.W.3d at 57–59. In
2005, the legislature added a new section to the PSL. See id. at 56–57; see also TEX. LAB. CODE
ANN. § 504.053 (West 2006). Within that new section was a “broadly-worded provision” stating
that “[n]othing in [the PSL] waives sovereign immunity or creates a new cause of action.”
Norman, 342 S.W.3d at 56–57 (citing TEX. LAB. CODE ANN. § 504.053(e)). Based on this then-
new provision, the court concluded that the PSL failed to demonstrate a clear and unambiguous
waiver because the amendment rendered the statute “too internally inconsistent to satisfy that
standard.” Norman, 342 S.W.3d at 58–59 (citing TEX. GOV'T CODE ANN. § 311.034). In light of
the amendment, the court concluded that sovereign immunity barred an anti-retaliation claim
against the political subdivision. See Norman, 342 S.W.3d at 58–59.
         Unlike the PSL at issue in Norman, the SAA has not been amended in any substantive
way since the supreme court considered the waiver issue in Fernandez. Having considered the
substance of the CSCD’s argument, the basis of which is essentially the same argument
presented in Saito, Parra, Flores, and Diaz, we likewise determine that Fernandez remains good
law, which binds this court.5 Accordingly, we hold that the trial court erred in granting the
CSCD’s plea to the jurisdiction because the legislature waived the CSCD’s immunity from suit
as a state agency for suits brought under the Anti-Retaliation Law. Borden’s third issue is
sustained.


         4
           The CSCD argues that Norman does not apply since the CSCD is a state agency rather than a political
subdivision. Nonetheless, it noted the court’s decision in its brief and appears to argue that the supreme court’s
analysis in that case is useful to our analysis of the case at hand. As such, we include a discussion of Norman in our
analysis.
         5
          CSCD also asserts that Section 501.002(d) of the SAA indicates that the legislature did not intend to
waive sovereign immunity. This section provides that neither the SAA nor the Workers’ Compensation Act
“authorizes a cause of action or damages against the state, a state agency, or an employee of the state beyond the
actions and damages authorized by [the Texas Tort Claims Act.].” See TEX. LAB. CODE ANN. § 501.002(d); TEX.
CIV. PRAC. & REM. CODE Ann. §§ 101.023–.024 (West 2011). However, this provision was expressly considered by
the Texas Supreme Court in Fernandez, and the court held that it served to incorporate the Tort Claims Act’s
damage caps. See Fernandez, 28 S.W.3d at 9–10; see also Flores, 2012 WL 3239114, at *5 n.3. We will not
second guess the Texas Supreme Court’s reasoning in reaching this conclusion. Flores, 2012 WL 3239114, at *5
n.3.


                                                          4
                         EXHAUSTION OF ADMINISTRATIVE REMEDIES
       In her second issue, Borden argues that she was not required to exhaust the grievance
process set forth in the CSCD’s policies and procedures manual prior to filing suit.
Governing Law and Standard of Review
       Our trial courts are courts of general jurisdiction. Subaru of Am., Inc. v. David McDavid
Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002); Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75,
(Tex. 2000).    The Texas Constitution provides that a trial court’s jurisdiction consists of
exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in
cases where exclusive, appellate, or original jurisdiction may be conferred by the Texas
Constitution or other law on some other court, tribunal, or administrative body. See TEX. CONST.
art. V, § 8; Subaru, 84 S.W.3d at 220. By statute, trial courts have the jurisdiction provided by
Article V, Section 8 of the Texas Constitution, may hear and determine any cause that is
cognizable by courts of law or equity, and may grant any relief that could be granted by either
courts of law or equity. See TEX. GOVT. CODE ANN. §§ 24.007–.008 (West 2004 & Supp. 2012).
Courts of general jurisdiction are presumed to have subject matter jurisdiction unless a contrary
showing is made. See Subaru, 84 S.W.3d at 220.
       On the other hand, there is no presumption that administrative agencies are authorized to
resolve disputes. Id. Rather, an agency may exercise only those powers the law, in clear and
express statutory language, confers upon it. Id. (citing Key Western Life Ins. Co. v. State Bd. of
Ins., 350 S.W.2d 839, 848 (1961)). Courts will not imply additional authority to agencies, nor
may agencies create for themselves any excess powers. Subaru, 84 S.W.3d at 220.
       Under the exclusive jurisdiction doctrine, the legislature grants an administrative agency
the sole authority to make an initial determination in a dispute. See In re Entergy Corp., 142
S.W.3d 316, 321 (Tex. 2004); Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000).
An agency has exclusive jurisdiction when a pervasive regulatory scheme indicates that the
legislature intended for the regulatory process to be the exclusive means of remedying the
problem to which the regulation is addressed. See Subaru, 84 S.W.3d at 221.
       Determining if an agency has exclusive jurisdiction requires statutory construction and
raises jurisdictional issues. Subaru, 84 S.W.3d at 222. Thus, whether an agency has exclusive
jurisdiction is a question of law we review de novo. Id.; see El Paso Nat’l Gas Co. v. Minco Oil
& Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999). Our objective when construing a statute is to



                                                 5
determine and give effect to the legislature’s intent. See Phillips v. Beaber, 995 S.W.2d 655,
658 (Tex. 1999). To ascertain that intent, we look first to the statute's plain language and give its
words their ordinary meaning. Id. We must view the statute’s terms in context and give them
full effect. Id. Further, we presume that the legislature acted with knowledge of the common
law and court decisions. Id.
       If an agency has exclusive jurisdiction, a party must exhaust all administrative remedies
before seeking review of the agency’s action. Entergy Corp., 142 S.W.3d at 321; Cash Am., 35
S.W.3d at 15; BCY Water Supply Corp. v. Residential Inv., Inc., 170 S.W.3d 596, 600 (Tex.
App.–Tyler 2005, pet. denied). Until the party has exhausted all administrative remedies, the
trial court lacks subject matter jurisdiction and must dismiss any claim within the agency’s
exclusive jurisdiction. Entergy Corp., 142 S.W.3d at 321–22.
Texas Labor Code, Section 76 and the CSCD’s Grievance Procedure
       Here, the CSCD argues that Texas Labor Code, Section 76.004 mandates that the director
of the CSCD (1) establish policies and procedures for all functions of the department, (2)
develop personnel policies and procedures, including disciplinary proceedings, and (3) establish
procedures and practices through which the department will address an employment-related
grievance. See TEX. LAB. CODE ANN. § 76.004 (West 2006). However, the plain language of
Section 76.004 contains no express grant of exclusive jurisdiction. Moreover, the plain meaning
of the language used in Section 76.004 does little, if anything, to establish such a “pervasive
regulatory scheme” so as to indicate that the legislature intended for the policies and procedures
implemented under Section 76.004 to be the mandatory preliminary means of remedying a
CSCD employee’s grievances. See Subaru, 84 S.W.3d at 221.
       The CSCD argues that there could be no purpose for mandating the establishment of such
procedures and practices if CSCD employees were not required first to engage in its grievance
process prior to filing suit in district court. And while CSCD’s argument is logical, we stress
that there is no presumption that administrative agencies are authorized to resolve disputes, and
also that such agencies may exercise only those powers the law, in clear and express statutory
language, confers upon them. See Subaru, 84 S.W.3d at 220. Based on our reading of the plain
language of Section 76.004, we cannot conclude that this statute confers exclusive jurisdiction
upon the CSCD so as to overcome the presumption that subject matter jurisdiction lies in a court
of general jurisdiction. Id. Accordingly, we hold that the trial court erred in granting the



                                                 6
CSCD’s plea to the jurisdiction based on Borden’s failure to exhaust the grievance process set
forth in the CSCD’s policies and procedures manual. Borden’s second issue is sustained.6


                                                    DISPOSITION

         Having sustained Borden’s second, and third issues, we reverse the trial court’s order
dismissing Borden’s case for want of jurisdiction and remand the cause to the trial court for
further proceedings consistent with this opinion.



                                                                          SAM GRIFFITH
                                                                                Justice

Opinion delivered September 18, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




         6
           In her first issue, Borden argues generally that the trial court erred in granting the CSCD’s plea to the
jurisdiction. However, she has confined her argument to her second and third issues. See TEX. R. APP. P. 38.1(i).
Our holdings with regard to Borden’s second and third issues are dispositive of this matter. Accordingly, we need
not address her first issue. See TEX. R. APP. P. 47.1.


                                                           7
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         SEPTEMBER 18, 2013


                                          NO. 12-12-00284-CV


                         DONNA D. BORDEN,
                              Appellant
                                 V.
        SMITH COUNTY COMMUNITY SUPERVISION AND CORRECTIONS
                           DEPARTMENT,
                              Appellee


                                 Appeal from the 241st District Court
                           of Smith County, Texas (Tr.Ct.No. 11-0867-C)

                        THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court
that the judgment be reversed and the cause remanded to the trial court for further
proceedings in accordance with this opinion; and that this decision be certified to the court
below for observance.
                        Sam Griffith, Justice.
                        Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
