AFFIRMED; Opinion Filed March 13, 2019.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00521-CV

                                JOHN ELLIS, Appellant
                                        V.
                         DALLAS AREA RAPID TRANSIT, Appellee

                       On Appeal from the 160th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DC-18-05195

                              MEMORANDUM OPINION
                         Before Justices Whitehill, Molberg, and Reichek
                                   Opinion by Justice Molberg
       John Ellis challenges the trial court’s jurisdictional dismissal of his workers’ compensation

retaliation case against Dallas Area Rapid Transit (DART), his former employer, on the basis of

governmental immunity from suit.

       Because we are bound by controlling supreme court precedent in this area of perplexing

legislative enactments, we affirm the district court’s order.

                                               Background

       Ellis filed suit against DART for workers’ compensation retaliation and race discrimination

on December 23, 2016, approximately two years after his firing. As to the former claim, Ellis

alleged that after he sustained an on-the-job injury, DART harassed, discriminated against, and

fired him because he in good faith filed a workers’ compensation claim “and/or hired a lawyer to
represent him in his claim and/or instituted or caused to be instituted in good faith a proceeding

under Subtitle A of Chapter 451 of the Labor Code.” See TEX. LAB. CODE ANN. § 451.001.

           As a political subdivision of the state,1 DART filed a plea to the jurisdiction against Ellis’s

chapter 451 retaliation claim, asserting governmental immunity. Following a hearing, the trial

court granted the plea and dismissed this cause of action on August 27, 2017. Thereafter, the claim

was severed from Ellis’s race discrimination claim, making the dismissal order final and

appealable.

                                            Chapter 451 and Governmental Immunity

           The governmental immunity doctrine and the anti-retaliation provision of the Texas

Workers’ Compensation Act, TEX. LAB. CODE ANN. §§ 451.001–.003, have enjoyed an on-again,

off-again relationship for the past quarter-century.

           In City of LaPorte v. Barfield, 898 S.W.2d 288, 298–99 (Tex. 1995), the supreme court

concluded that a political subdivision’s immunity from workers’ compensation retaliation claims

had been clearly and unambiguously waived by the Public Subdivisions Law, TEX. LAB. CODE

ANN. §§ 504.001–.073, which made chapter 451 applicable to political subdivisions. Critical to

the court’s determination was a provision in the 1989 and 1993 versions of the Public Subdivisions

Law that required an employee to elect between an action for workers’ compensation retaliation

and a claim under the Whistleblower Act, TEX. GOV’T CODE ANN. §§ 554.001–.010. If the

legislature had not intended a waiver of immunity, said the court, “it would make little sense to

require an employee to elect between an action barred by immunity and one not barred.” Barfield,

898 S.W.2d at 298.




     1
       DART is a regional transportation authority created under chapter 452 of the Texas Transportation Code, formerly article 1118y of the
Texas Revised Civil Statutes. It is a governmental entity that is a political subdivision of the state. Dallas Area Rapid Transit v. Amalgamated
Transit Union Local No. 1338, 273 S.W.3d 659, 661 (Tex. 2008).
                                                                     –2–
          A decade after Barfield, however, the legislature amended labor code chapter 504 to

provide that “[n]othing in this chapter waives sovereign immunity or creates a new cause of

action.” TEX. LAB. CODE ANN. § 504.053(e). As a result, in Travis Central Appraisal District v.

Norman, 342 S.W.3d 54, 58, 59 (Tex. 2011), the court concluded that the amendment resurrected

immunity for retaliation claims brought by employees of political subdivisions. As the Norman

court noted, “[t]his no-waiver provision considerably clouds the chapter’s former clarity regarding

retaliatory discharge claims” and has “muddled the issue.” Id. Thus, the Norman court reasoned,

there was no longer a clear and unambiguous waiver of immunity which a court must find to

judicially effectuate a waiver. Id. at 59.

          Effective September 1, 2017—after Ellis filed his lawsuit—chapter 504 was again

amended, this time to provide damage limitations on the liability of political subdivisions for

workers’ compensation retaliation claims brought by their employees—the very claims that

Norman held were no longer actionable as a result of the 2005 amendments. TEX. LAB. CODE

ANN. § 504.002(a-1).2 At the same time, chapter 451 of the labor code was amended to expressly

allow “first responders” to seek relief under the chapter, and in such cases, “[s]overeign or

governmental immunity is waived and abolished to the extent of liability created by this chapter.”

TEX. LAB. CODE ANN. § 451.0025(b).

                                                                     Analysis

          Unless waived, immunity from suit deprives a court of jurisdiction. See Tex. Dep’t of

Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex. 1999) (“immunity from suit defeats a trial court’s

subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction”). Whether



     2
       Section 504.002(a-1) provides: “The liability of a political subdivision under Chapter 451 is limited to money damages in a maximum
amount of $100,000 for each person aggrieved by and $300,000 for each single occurrence of a violation of that chapter. For purposes of this
subsection, a single occurrence is considered to be a single employment policy or employment action that results in discrimination against or
discharge of one or more employees concurrently.”



                                                                   –3–
governmental immunity from suit has been waived and whether the trial court has jurisdiction are

questions of law that we review de novo. See, e.g., Tex. Office of the Comptroller of Pub. Accounts

v. Saito, 372 S.W.3d 311, 313 (Tex. App.—Dallas 2012, pet. denied).3

           We may find a waiver of immunity only where legislative intent to waive immunity is clear

and unambiguous. See Norman, 342 S.W.3d at 58; Univ. of Tex. Med. Branch v. York, 871 S.W.2d

175, 177 (Tex. 1994). Indeed, the Texas Code Construction Act requires as much. TEX. GOV’T

CODE ANN. § 311.034 (“[A] statute shall not be construed as a waiver of sovereign immunity

unless the waiver is effected by clear and unambiguous language.”). This does not mean, however,

that a waiver of immunity must be express. “Therefore, when a waiver of immunity has been

necessary to make sense of a statute, we have held it to be clear and unambiguous.” Norman, 342

S.W.3d at 58 (citing Barfield, 898 S.W.2d at 291–92). The clear and unambiguous standard is

never applied “mechanically to defeat the law’s purpose or the Legislature’s intent.” Norman, 342

S.W.3d at 58 (citing Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 3 (Tex. 2000)). Intent

“remains the polestar of statutory construction.” Barfield, 898 S.W.2d at 292.

           Ellis argues the 2017 damage limitation added by section 504.002(a-1) “provides clarity

regarding the legislative intent” that the Norman court found wanting. Although not in effect at

the time he filed suit, the amendment, he contends, now makes clear that the legislature all along

intended to waive a political subdivision’s immunity from suit in workers’ compensation

retaliation cases brought by its employees. Like the election of remedies provision added to the

Political Subdivisions Law that the Barfield court found persuasive in deciding immunity had been

waived because the provision was meaningless otherwise, so, too, is the enactment of a damage

limitation on claims otherwise barred by immunity. Justifiably, Ellis essentially asks a question


     3
       The common law doctrine of governmental immunity protects political subdivisions of the state, such as counties and municipalities. The
common law doctrine of sovereign immunity protects the state and its various agencies and boards. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d
692, 694 n.3 (Tex. 2003). “Courts often use the terms sovereign immunity and governmental immunity interchangeably.” Id. The differences in
the doctrines are not material to the issue presented here.

                                                                     –4–
similar to the election-of-remedies question asked in Barfield: “Why would the legislature put a

damage cap on a recovery that cannot be had?”

           As much as the 2005 amendments to chapter 504 muddied the immunity waters, the 2017

amendments failed to clear them up. While it appears nonsensical that the legislature would add

a general damage limitation for chapter 451 claims brought by employees of political subdivisions

if it did not intend to waive governmental immunity from suit, the amendment did not purport to

alter the express directive found in section 504.053(e), that “[n]othing in this chapter waives

sovereign immunity or creates a new cause of action.” Moreover, at the same time the damage

limitation was enacted, chapter 451 was amended to specifically waive immunity for claims of

first responders, as defined in section 421.095 of the Texas Government Code, but not for others

like Ellis, a bus driver. Thus, if immunity were waived for all employees of political subdivisions

as a result of the damage limitation, as Ellis argues, why would it then be necessary for the

legislature to grant an express waiver of immunity for retaliation claims of first responders?4 And

finally, confounding the analysis here is that Ellis’s cause of action arose and his suit was filed

before the effective date of the 2017 amendments.

           We cannot conclude in these circumstances that a waiver of governmental immunity is

clear and unambiguous, as is required. Like the Norman court, we view the law as “too internally

inconsistent” to meet that standard.5




       4
         Both amendments formed the substantive totality of House Bill 451. See Act of May 24, 2017, 85th Leg., R.S., ch. 810, §§ 1-2, 2017 Tex.
Gen. Laws 3149, 3149. The only thing that is currently clear and unambiguous is that immunity from suit in chapter 451 actions has been waived
for first responder employees of political subdivisions to the extent of the monetary liability set forth in labor code section 504.002(a-1).
      5
        Employees of state agencies have the full protection of the Anti-Retaliation Act, which is made applicable to them by the State Application
Act, TEX. LAB. CODE ANN. § 501.002(a)(10). See Fernandez, 28 S.W.3d at 6–8 (sovereign immunity waived); Saito, 372 S.W.3d at 314) (same).
This is so because, unlike the Political Subdivisions Law, the State Application Act was not amended to add a provision that preserved sovereign
immunity. Saito, 372 S.W.3d at 315. Why state employees are afforded protection by the law and most employees of political subdivisions are
not escapes explanation. Similarly, why protection from injurious retaliatory conduct is legislatively important for first responder employees of
political subdivisions but not for bus drivers likewise enjoys no explanation.

                                                                      –5–
                                            Conclusion

   Accordingly, we affirm the district court’s order granting the plea and dismissing the case.




                                                 /Ken Molberg/
                                                 KEN MOLBERG
                                                 JUSTICE

180521F.P05




                                              –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 JOHN ELLIS, Appellant                               On Appeal from the 160th Judicial District
                                                     Court, Dallas County, Texas
 No. 05-18-00521-CV          V.                      Trial Court Cause No. DC-18-05195.
                                                     Opinion delivered by Justice Molberg.
 DALLAS AREA RAPID TRANSIT,                          Justices Whitehill and Reichek
 Appellee                                            participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

        It is ORDERED that appellee DALLAS AREA RAPID TRANSIT recover its costs of
this appeal from appellant JOHN ELLIS.


Judgment entered this 13th day of March, 2019.




                                               –7–
