                                                                                  ACCEPTED
                                                                              01-14-00844-CV
                                                                   FIRST COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                         9/21/2015 8:30:10 PM
                                                                        CHRISTOPHER PRINE
                                                                                       CLERK




                      N O . 01-14-00844-CV
                                                             FILED IN
                                                      1st COURT OF APPEALS
                               In The                     HOUSTON, TEXAS
                                                      9/21/2015 8:30:10 PM
                 Court of Appeals                     CHRISTOPHER A. PRINE
                                                              Clerk

                  FIRST DISTRICT OF TEXAS
                        Houston, Texas

                 NEIGHBORHOOD CENTERS, INC.,
                         Appellant,

                               versus

                      DOREATHA WALKER,
                  Cross-Appellant and Appellee.


            On appeal from Cause No. 2014-37034 in the
             80th District Court, Harris County, Texas


        CROSS-APPELLANT/APPELLEE DOREATHA WALKER’S
             RESPONSE TO MOTION FOR REHEARING


MULLIN HOARD & BROWN, L.L.P.            LORNA L. MCMILLION
P.O. Box 2585                           Of the Firm SBN 24086726
Lubbock, Texas 79408                    LMCMILLION@MHBA.COM
(806) 765-7491 – Phone
                                        LAWRENCE M. DOSS
(806) 765-0553 – Fax
                                        Of the Firm SBN 24012544
                                        LDOSS@MHBA.COM

            ATTORNEYS FOR CROSS-APPELLANT/APPELLEE
                       September 21, 2015
                                   TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................. i
INDEX OF AUTHORITIES .......................................................................... ii
STATEMENT OF FACTS ............................................................................. 2
ARGUMENT AND AUTHORITIES............................................................. 4
  I.    Neighborhood Centers’ request for a tunnel-vision analysis of
        Section 12.0158 ignores the Legislature’s concurrent amendment
        of Section 12.0156, which provides that charter schools are still
        only immune from liability to the same extent as public schools ........ 5

        A.     Sections 12.0156 and 12.0158 of the Education Code, when
               construed together, are consistent with this Court’s Opinion...... 6
        B.     Legislative history indicates that the scope immunity and
               liability statutes throughout the Texas Codes was meant to
               be expanded rather than limited ................................................... 8

  II.   The general savings clause of the Code Construction Act prevents
        Section 12.1058(c) from extinguishing Walker’s accrued rights and
        remedies .............................................................................................. 12

  III. Applying Section 12.1058(c) in this case would violate the
       Constitutional prohibition against retroactivity .................................. 15

        A.     The Legislative record is silent as to a compelling public
               interest that might justify retroactive application of Section
               12.1058(c) ................................................................................... 16

        B.     Section 12.1058(c) impairs a cause of action and remedial
               right available under a statute designed to compel government
               compliance with the law ............................................................. 18

        C.     Application of Section 12.1058 to this appeal would entirely
               eliminate Walker’s accrued cause of action and remedy ........... 20

CONCLUSION AND PRAYER .................................................................. 23
APPENDICES .............................................................................................. 26


                                                        i
                                  INDEX OF AUTHORITIES
Cases                                                                                                   Page(s)

City of Houston v. Houston Firefighters’ Relief & Ret. Fund,
       196 S.W.3d 271 (Tex. App.—Houston [1st Dist.] 2006,
       no pet.) ................................................................................................ 14

City of Houston v. Levingston,
       221 S.W.3d 204 (Tex. App.—Houston [1st Dist.] 2006,
       no pet.) .......................................................................................... 18–19

City of Rockwall v. Hughes,
       246 S.W.3d 621 (Tex. 2008) ................................................................ 6

City of Tyler v. Likes,
       962 S.W.2d 489 (Tex. 1997) ........................................................ 20, 21

Dallas Cnty. Cmty. Coll. Dist. v. Bolton,
      185 S.W.3d 868 (Tex. 2005) .............................................................. 13

Garrett Operators, Inc. v. City of Houston,
     461 S.W.3d 585 (Tex. App.—Houston [1st Dist.] 2015,
     no pet.) ................................................................................................ 16

Kaiser Aluminum v. Bonjorno,
      494 U.S. 827 (1990) ........................................................................... 22

Knight v. Int’l Harvester Credit Corp.,
     627 S.W.2d 382 (Tex. 1982) .............................................................. 13

Kroger Co. v. Keng,
     23 S.W.3d 347 (Tex. 2000) .................................................................. 5

Landgraf v. USI Film Products,
     511 U.S. 244 (1994) ..................................................................... 15, 22




                                                         ii
                            INDEX OF AUTHORITIES, CONT.

Cases cont.                                                                                          Page(s)

Neighborhood Ctrs., Inc. v. Walker,
     No. 01-14-00844-CV, 2015 WL 4593436 (Tex. App.
     —Houston [1st Dist.] July 30, 2015, no. pet. h.) ....................... 2, 6, 10

Quick v. City of Austin,
      7 S.W.3d 109 (Tex. 1998) ........................................................... passim

Robinson v. Crown Cork & Seal Co., Inc.,
     335 S.W.3d 126 (Tex. 2010) ....................................................... passim

Tex. Mut. Ins. Co. v. Ruttiger,
      381 S.W.3d 430 (Tex. 2012) .................................................................. 6
Sw. Bell Tel. Co. v. City of Kountze,
      543 S.W.2d 871 (Tex. Civ. App.—Beaumont 1976,
      no writ) ............................................................................................... 21

Union Carbide Corp. v. Synatzske,
     438 S.W.3d 39 (Tex. 2014) ...................................................... 6, 17, 19

Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia,
      324 S.W.3d 544 (Tex. 2010) .............................................................. 20

Constitutional Provisions

U.S. CONST. art I, § 9, cl. 3 ..................................................................... 5, 15

TEX. CONST. art I, § 16 .......................................................................... 5, 15

Statutes

TEX. EDUC. CODE ANN. § 12.1056 (West 2012) ............................................. 6

TEX. EDUC. CODE ANN. § 12.1056 (West 2012 & Supp. 2015) ............ passim


                                                       iii
                          INDEX OF AUTHORITIES, CONT.

Statutes (cont.)                                                                             Page(s)

TEX. EDUC. CODE ANN. § 12.1058 (Supp. 2015) ................................... passim

TEX. GOV’T CODE ANN. § 311.002 (West 2013) .......................................... 13

TEX. GOV’T CODE ANN. § 311.022 (West 2013) .......................................... 12

TEX. GOV’T CODE ANN. § 311.023 (West 2013) ........................................ 6, 8

TEX. GOV’T CODE ANN. § 311.025(b) (West 2013) ....................................... 7

TEX. GOV’T CODE ANN. § 311.031 (West 2013) ...................................... 4, 13

TEX. GOV’T CODE ANN. § 554.001 et seq. (West 2013) ........................... 2, 19

Legislative Materials

1983 Tex. Gen. Laws 4751 ........................................................................... 19

1993 Tex. Gen. Laws 609 ............................................................................. 19

C.S.H.B. 1170, 84th Leg., R.S. (2015) ..................................................... 3, 11

H. Rep. on H.B. 1170 (2015) ........................................................................ 11

H.B. 1075, 68th Leg., R.S. (1983) ................................................................ 19

H.B. 1170, 84th Leg., R.S. (2015) ................................................................ 11

H.B. 1171, 84th Leg., R.S. (2015) .......................................................... 3, 8, 9

History of House Bill 1170, Texas Legislature Online,
http://www.legis.state.tx.us/BillLookup/history.aspx?LegSess
=84R&Bill=HB1170 (last visited September 21, 2015) .............................. 11



                                                   iv
                         INDEX OF AUTHORITIES, CONT.

Legislative Materials (cont.)                                                               Page(s)

S. Rep. on C.S.H.B. 1170 (substituted on May 20, 2015) ...................... 10, 17

S.B. 248, 73d Leg., R.S. (1993) .................................................................... 19

SRC-DDS H.B. 1171 84(R) (2015) ................................................................ 9




                                                   v
                           N O . 01-14-00844-CV
                                    In The

                      Court of Appeals
                       FIRST DISTRICT OF TEXAS
                             Houston, Texas

                      NEIGHBORHOOD CENTERS, INC.,
                              Appellant,

                                   versus

                           DOREATHA WALKER,
                       Cross-Appellant and Appellee.


                On appeal from Cause No. 2014-37034 in the
                 80th District Court, Harris County, Texas


           CROSS-APPELLANT/APPELLEE DOREATHA WALKER’S
                RESPONSE TO MOTION FOR REHEARING


      Pursuant to Tex. R. App. P. 10.1(b), Cross-Appellant/Appellee

Doreatha Walker (“Walker”) files this Response to Appellant Neighborhood

Centers, Inc.’s (“Neighborhood Centers”) Motion for Rehearing, requests that

the Court deny said Motion, and respectfully shows the court as follows:




                                      1
                        STATEMENT OF FACTS
      On July 30, 2015, this Court issued its opinion overruling

Neighborhood Centers’ only issue on appeal—the denial of its plea to the

jurisdiction for Walker’s claim under Section 554.001 et seq. of the Texas

Government Code (the “Whistleblower Protection Act”). See Neighborhood

Ctrs., Inc. v. Walker, No. 01-14-00844-CV, 2015 WL 4593436 (Tex. App.—

Houston [1st Dist.] July 30, 2015, no. pet. h.) (the “Opinion”). In doing so,

this Court held the Act’s provisions waiving sovereign immunity for local

government entities conferred subject-matter jurisdiction upon the trial court

and prevented the dismissal of Walker’s cause of action. Id. at *4.

      This Court noted that the Texas Education Code expressly waives an

open-enrollment charter school’s immunity from liability “to the same extent

as a public school district.” See id. Because a “public school district” falls

within the statutory definition of a “local governmental entity” covered by the

Whistleblower Protection Act, this Court reasoned the Legislature’s waiver of

immunity for claims made by “public employees” of “public school districts”

rendered it “beyond doubt” that the same is true for claims made by

employees of an open-enrollment charter school. See id. The Court correctly




                                       2
concluded that an open-enrollment charter school constitutes a “local

governmental entity” subject to the Whistleblower Protection Act.

      While this appeal was pending, the Legislature introduced two bills

amending portions of the Texas Education Code that are relevant to this

appeal and which Neighborhood Centers now argues render the

Whistleblower Protection Act inapplicable to open-enrollment charter

schools.

      The first bill, H.B. 1170 added a new Section, 12.1058, entitled

“Applicability to Other Laws.” C.S.H.B. 1170, 84th Leg., R.S. (2015). The

second bill, H.B. 1171 amended previous Section 12.1056, now entitled

“Immunity from Liability and Suit.” H.B. 1171, 84th Leg., R.S. (2015). These

bills became effective on June 19, 2015 and June 18, 2015, respectively,

which was after oral arguments were heard in this case but before this Court

issued its Opinion.

      Neighborhood Centers moved for rehearing on August 14, 2015,

arguing that newly-enacted Section 12.0158(c) renders this Court’s opinion

invalid because the Legislature indirectly repealed waivers of immunity under

the Whistleblower Protection Act.




                                     3
                  ARGUMENT AND AUTHORITIES
      In light of these amendments to the Education Code and their June

2015 effective dates, Neighborhood Centers asks this Court to determine

whether the Legislature abrogated subject-matter jurisdiction in this case. It

has not for three reasons.

      First, the plain language of Sections 12.056 and 12.058, when

construed together, reveal that charter schools continue to retain immunity

from liability and suit “to the same extent as a school district” and thus, the

Whistleblower Protection Act and subject matter-jurisdiction thereunder are

unaffected by the amendments.

      Second, even if Section 12.018(c) can be read to indirectly repeal a

cause of action and waiver of immunity under the Whistleblower Protection

Act, the Legislature did not intend to circumvent the default savings clause of

the Texas Code Construction Act, which provides that statutory amendments

do not deprive litigants in pending cases from accrued rights or remedies. See

TEX. GOV’T CODE ANN. § 311.031(a) (West 2013).

      Third, even if the general savings clause does not apply, application of

Section 12.1058(c) to this appeal would deprive Walker of her accrued rights

and remedies in direct violation of the constitutional prohibition against



                                      4
retroactive legislation. See U.S. CONST. art I, § 9, cl. 3; TEX. CONST. art I,

§ 16; Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 139 (Tex. 2010)

(“The presumption is that a retroactive law is unconstitutional without a

compelling justification [. . .].”

       For these reasons, this Court should deny Neighborhood Centers’

Motion for Rehearing.

 I.    Neighborhood Centers’ request for a tunnel-vision analysis of
       Section 12.0158 ignores the Legislature’s concurrent amendment of
       Section 12.0156, which provides that charter schools are still only
       immune from liability to the same extent as public schools.
       Contrary to established rules of statutory construction, Neighborhood

Centers asks this Court to construe solely Section 12.1058’s provisions

regarding applicability to other laws as indirectly repealing the applicability

of the Whistleblower Protection Act’s waiver of immunity to open-enrollment

charter schools. But see Kroger Co. v. Keng, 23 S.W.3d 347, 351 (Tex. 2000)

(noting that repeal by implication is disfavored under Texas law). In asking

the Court for a tunnel-vision interpretation of immunity under the new statute,

Neighborhood      Centers     fatally   ignores   the   Legislature’s   concurrent

amendment of Section 12.1056, which expressly addresses immunity for

open-enrollment schools.




                                          5
      A. Sections 12.0156 and 12.0158 of the Education Code, when
         construed together, are consistent with this Court’s Opinion.

      In construing a statute, the court’s “primary objective is to ascertain the

Legislature’s intent, and [it does] that, if possible, through the words the

Legislature selected.” City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.

2008); Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 51 (Tex. 2014).

The court derives the Legislature’s intent “from the statute as a whole, not by

reading individual provisions in isolation.” Tex. Mut. Ins. Co. v. Ruttiger, 381

S.W.3d 430, 454 (Tex. 2012).

      Amended Section 12.1056 still provides, consistent with this Court’s

Opinion, that an open-enrollment charter school is immune from liability “to

the same extent as a public school district.” Neighborhood Ctrs., 2015 WL

4593436, at *4 (citing TEX. EDUC. ANN. § 12.1056(a) (West 2012)). The only

substantive additions to this Section are that it now states “an open-enrollment

charter school or charter holder is immune from liability and suit to the same

extent as a school district.” (additions in italics). See § 12.1056(a); App’x A.

      Any analysis of Section 12.0158(c)’s provisions relating to “other

laws” must necessarily be read in light of Section 12.0156’s “same extent”

language. TEX. GOV’T CODE § 311.023 (“In construing a statute, whether or




                                        6
not the statute is considered ambiguous on its face, a court may consider [. . .]

former statutory provisions [and] consequences of a particular construction.”)

       The allegedly offending passage of Section 12.0158(c) states:

      (c) Notwithstanding Subsection (a) or (b), an open-enrollment
      charter school operated by a tax exempt entity as described by
      Section 12.101(a)(3) is not considered to be a political
      subdivision, local government, or local governmental entity
      unless the applicable statute specifically states that the statute
      applies to an open-enrollment charter school.

TEX. EDUC. CODE § 12.0158(c). Note that the subsection references “the

applicable statute.” For purposes of the application of immunity and liability

to other laws, the applicable statute is Section 12.1056(a). Therefore, the

scope of immunity or liability for open-enrollment charter schools under

other laws via Section 12.0158, must be determined to the same extent as

immunity or liability applies to public school districts pursuant to Section

12.0156. Compare § 12.0158(c), with § 12.0156(a).

      To the extent Neighborhood Centers may have argued (though it did

not) that these two Sections are irreconcilable, this Court must attempt to

harmonize them. TEX. GOV’T CODE § 311.025(b) (“[I]f amendments to the

same statute are enacted at the same session of the legislature, one

amendment without reference to another, the amendments shall be

harmonized, if possible, so that effect may be given to each [. . .].”).


                                        7
      Contrary to Neighborhood Centers’ assertion that Section 12.1058 was

enacted to “clarify[ ] that there is no jurisdiction over an open-enrollment

charter school under the Whistleblower Act,” the statutory construction of

Sections 12.0158 and 12.1056 weigh against this assertion. See Mot. for

Reh’g, at 6. Following this same analysis, the Legislature did not enact

Section 12.1058 with the intent to “strip[ ] the court of jurisdiction” in this

case or render the Whistleblower Protection Act “[in]applicable to open-

enrollment charter schools.” See Mot. for Reh’g, at 6–7. The interpretation

suggested by Neighborhood Centers would render Section 12.1056 to be

surplussage. Therefore, this Court’s interpretation of the statute was accurate

and should not be modified.

      B. Legislative history indicates that the scope immunity and liability
         statutes throughout the Texas Codes was meant to be expanded
         rather than limited.

      The circumstances surrounding the passage of H.B. 1170 and H.B.

1171 and their respective legislative histories are particularly instructive in

determining the Legislature’s intent, and this Court may use this context to

aid its interpretation. TEX. GOV’T CODE § 311.023 (“In construing a statute,

whether or not the statute is considered ambiguous on its face, a court may




                                       8
consider among other matters the [. . .] circumstances under which the statute

was enacted [and] legislative history.”)

      The Senate Research Center’s published analysis of H.B. 1171 explains

that Section 12.1056’s provisions regarding immunity from liability were

updated to reflect current appellate court decisions applying immunity to

charter schools to the same extent as public school districts. SRC-DDS H.B.

1171 84(R), at 1 (2015). The Author’s Statement of Intent clarifies:

      Currently, open-enrollment charter schools enjoy the same
      immunity from liability that public schools do; however, the law
      is less clear on the degree to which charters are immune from suit
      or subject to liability limits under the Texas Torts Claims Act.
      Recently, the Dallas Court of Appeals ruled that charters should
      be treated the same as public schools with regard to immunity
      from suit. Because this ruling only applies to that court’s
      jurisdiction, however, charter schools will continue to fight costly
      legal battles to dismiss suits that should not have been filed in the
      first place.
      H.B. 1171 addresses the uncertainties surrounding charter
      schools’ legal status by defining them as public schools for
      purposes of immunity from both liability and suit. The bill also
      clarifies that charter schools are eligible for the cap on liabilities
      under the Texas Torts Claims Act. These provisions will keep
      schools from expending their limited budgets on expensive court
      costs, and ensure that public money meant for education remains
      in the classrooms.

Id. at 1 (emphasis added); See App’x. B. As this analysis states, Section

12.0156 expands the application of immunity from liability and suit to charter




                                        9
schools by ensuring they are clearly defined as public schools. Such

interpretation is consistent with this Court’s opinion holding the same.

Neighborhood Ctrs., 2015 WL 4593436, at *4.

      The Legislature provides no similar analysis for H.B. 1070. Rather,

than addressing liability concerns, H.B. 1070 was enacted to permit charter

schools to enter into certain collective bargaining and risk management

arrangements, in the same manner as public school districts, in order to

“strengthen the districts’ bargaining positions for purchasing materials and

contracting for services, and dilute the unforeseen costs of insurance claims.”

See S. Rep. on C.S.H.B. 1170, at 1 (substituted on May 30, 2015).

      In keeping with the Legislature’s intent to give charter schools and their

employees the same benefits as public schools, subsection (a) of Section

12.1058 establishes that an open-enrollment charter school constitutes (1) a

“local government” under the Interlocal Cooperation Act, (2) a “local

government” under self-insurance statutes applicable to governmental units,

and (3) a “political subdivision” under the Texas Political Subdivision

Employees Uniform Group Benefits Act. See TEX. EDUC. CODE § 12.1058(a).

      Subsection (b) authorizes an extension of workers’ compensation

benefits to employees of charter schools “under Labor Code provisions



                                      10
relating to workers’ compensation insurance coverage for employees of

political subdivisions.” See H. Rep. on H.B. 1170, at 1 (2015).

       In a last-minute amendment to H.B 1170, the Legislature added

subsection (c), providing that a charter school otherwise does not constitute a

political subdivision, local government, or local governmental entity, “unless

the applicable statute specifically states that the statute applies to an open-

enrollment charter school.” TEX. EDUC. CODE § 12.1058(c).1

       H.B. 1170’s legislative history neither expresses no intent to

abrogate immunity provisions in other sections of Texas Codes.

Rather, H.B. 1170 adds benefits and bargaining measures that were

previously unavailable to charter schools, and Section 12.1058(c) was likely

added to clarify in what circumstances additional benefit, bargaining, and

insurance provisions in the Texas Codes would apply to open-enrollment

charter schools.

       An analysis of the plain language of Sections 12.1056(a) and

12.0158(c) as a whole and a review their concurrent legislative histories

demonstrates that Neighborhood Centers is still a “local government entity”

1
  Compare H.B. 1170, 84th Leg., R.S. (filed on February 5, 2015), with C.S.H.B. 1170,
84th Leg., R.S. (substituted for H.B. 1170 on May 27, 2015); see also History of House
Bill 1170, Texas Legislature Online, http://www.legis.state.tx.us/BillLookup/history.
aspx?LegSess=84R&Bill=HB1170 (last visited Sept. 21, 2015).


                                         11
pursuant to the Whistleblower Protection Act despite recent statutory

amendments. As such, this Court and the trial court have subject-matter

jurisdiction over Walker’s claim, and this Court’s Opinion should stand.

II.   The general savings clause of the Code Construction Act prevents
      Section 12.1058(c) from extinguishing Walker’s accrued rights and
      remedies.
      Neighborhood Centers argues that Walker has been deprived of her

cause of action under the Whistleblower Protection Act because Section

12.1058(c) now prevents this Court from treating an open-enrollment charter

school as a “local governmental entity” under it. See Mot. for Reh’g, at 3.

Neighborhood Centers is wrong.

      Assuming, arguendo, that H.B. 1070 indirectly repealed Walker’s cause

of action under the Whistleblower Protection Act, the statute only applies

prospectively and is not applicable to this appeal in which Walker’s rights had

accrued prior to Section 12.1058(c)’s enactment. See TEX. GOV’T CODE

§ 311.022 (“A statute is presumed to be prospective in its operation unless

expressly made retrospective”.)

      Walker does not dispute that “when a right or remedy is dependent on a

statute, the unqualified repeal of that statute operates to deprive the party of

all such rights that have not become vested or reduced to final judgment.” See



                                      12
Quick v. City of Austin, 7 S.W.3d 109, 128 (Tex. 1999) (op. on reh’g). In such

cases, “if final relief has not been granted before the repeal goes into effect,

final relief cannot be granted thereafter, even if the cause is pending on

appeal.” Id. (citing Knight v. Int’l Harvester Credit Corp., 627 S.W.2d 382,

284 (Tex. 1982)). But the Texas Supreme Court has noted that this common-

law rule of abatement “may be modified by a specific savings clause in the

repealing legislation or by a general savings statute limiting the effect of

repeals.” Quick, 7 S.W.3d at 128. The savings statute is codified in the Texas

Code Construction Act and applies to the Texas Education Code. TEX. GOV’T

CODE §§ 311.002, 311.031; see Dallas Cnty. Cmty. Coll. Dist. v. Bolton, 185

S.W.3d 868, 873–74 (Tex. 2005) (using the Code Construction Act to

interpret a provision of the Education Code).

      This general savings statute provides, in pertinent part, that repeal of a

statute does not affect (1) the “prior operation of the statute or any prior

action taken under it”; (2) “any right [. . .] obligation [. . .] or liability

previously acquired, accrued, accorded, or incurred under it”; or (3) any [. . .]

proceeding, or remedy” concerning any “obligation, liability, penalty, [. . .] or

punishment.” TEX. GOV’T CODE § 311.031(a). Such a “proceeding[ ] or

remedy may be instituted, continued, or enforced [as if the statute] had not



                                       13
been repealed or amended.” See id. The Texas Supreme Court has explained

that the general savings statute “indicates a general legislative policy that the

repeal of any statute shall not affect the prior operation of that statute” or

“extinguish any liability incurred or affect any right accrued or claim arising

before the repeal takes effect.” Quick, 7 S.W.3d at 130.

      Reviewing courts must presume that the general savings statute applies

“unless a contrary legislative intent is shown by clear expression or necessary

implication.” Id. Similarly, this Court has relied upon a savings clause “to

avoid a retroactive application of a statute if the newly enacted statute repeals

a cause of action or revokes a special remedy.” City of Houston v. Houston

Firefighters’ Relief & Ret. Fund, 196 S.W.3d 271, 283 (Tex. App.—Houston

[1st Dist.] 2006, no pet.).

      In Quick, the Texas Supreme Court held that under the general savings

clause, a recent repeal did not affect the prior operation of a statute or deprive

the court of subject-matter jurisdiction to consider the party’s claims, where

the Legislature nowhere stated that the savings clause did not apply. Quick, 7

S.W.3d at 130. The same rationale applies in this case.

      In passing the amended H.B. 1170, the Legislature expressed no

contrary legislative intent to overcome the presumption that the savings



                                       14
clause applies, nor is there any necessary implication that Section 12.1058

must be applied retroactively.2 Contrary to Neighborhood Centers’ assertion

that amendment applies to this current appeal, neither the statute

nor its legislative history include instruction that the amendment

reaches back to claims pending before the statute’s effective date.

See Mot. for Reh’g, at 5. Nor is there any indication that the

general savings statute cannot be applied. In the absence of contrary

legislative intent, this Court must presume the savings clause applies and

conclude that Section 12.1058(c) does not affect any accrued right or remedy

under the prior operation of the Whistleblower Protection Act. As such,

Neighborhood Centers’ Motion for Rehearing should be denied.

III.   Applying Section 12.1058(c) in this case would violate the
       Constitutional prohibition against retroactivity.
       Even if the Legislature did intend to circumvent the general savings

statute, Section 12.1058(c) cannot deprive Walker of her remaining cause of

action without violating the United States and Texas constitutional

prohibitions against retroactive legislation. See U.S. CONST. art I, § 9, cl. 3;

TEX. CONST. art I, § 16.

2See Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994) (noting that when
a bill takes effect upon enactment, courts must utilize “ordinary judicial
principles concerning the application of new rules to pending cases”).


                                      15
       “Laws are deemed retrospective and within the constitutional

prohibition” if they retrospectively “destroy or impair[ ] vested rights.”

Robinson, 335 S.W.3d at 139–40 (internal quotation omitted). A statute that

“takes away or impairs vested rights acquired under existing laws, or creates a

new obligation [. . .] in respect to transactions or considerations already past”

must be deemed impermissibly retroactive. Id. (internal quotation omitted).

      In determining whether a statute violates the prohibition against

retroactivity, courts consider three factors as set forth by the Texas Supreme

Court in Robinson: (1) the nature and strength of the public interest served by

the statute as evidenced by the Legislature’s factual findings; (2) the nature of

the prior right impaired by the statute; and (3) the extent of the impairment.

Id. at 145. Each of these factors weighs against the application of Section

12.1058(c) in the manner suggested by Neighborhood Centers. Cf. Robinson,

335 S.W.3d at 145–46.

      A. The Legislative record is silent as to a compelling public interest
         that might justify retroactive application of Section 12.1058(c).

      Courts examine the first Robinson factor—the nature and strength of

the public interest served by the statute—based on the Legislature’s factual

findings. Id. at 145; Garrett Operators, Inc. v. City of Houston, 461 S.W.3d

585, 595 (Tex. App.—Houston [1st Dist.] 2015, no pet.). The constitutional


                                       16
prohibition against retroactive laws “preempt[s] this weighing of interests

absent compelling reasons.” Robinson, 335 S.W.3d at 150 (“Indeed, it is

precisely because retroactive rectification of perceived injustice seems so

reasonable and even necessary, especially when there are few to complain,

that the constitution prohibits it.”).

       Compelling interests, then, can only be demonstrated by specific

findings by the Legislature. Compare id. at 149 (holding retroactive

application of a statute unconstitutional where the Legislature’s lack of

findings on the extent of a generalized benefit did not amount to a compelling

interest even though the benefit could be inferred from the record), with

Union Carbide, 438 S.W.3d at 57 (permitting retroactive application only

where “[t]he Legislature provided extensive findings to support [the statute’s]

enactment and its effects.”).

       As explained above, Section 12.1058 was designed to permit open-

enrollment charter schools to enter into certain collective-bargaining and risk-

management arrangements. See S. Rep. on C.S.H.B. 1170, at 1 (substituted on

May 20, 2015). In the absence of legislative findings on this objective, the

record is silent as to the extent of the intended benefits of Section 12.1058 as

a whole. See Robinson, 335 S.W.3d at 149.



                                         17
       More importantly, nothing suggests that the language in subsection

(c)—the portion that indirectly affects the Whistleblower Protection Act—

was designed to serve any public interest by repealing a cause of action or

waiver of immunity under the Act. Maintaining an established cause of action

enjoys greater deference than clarifying the impact of unrelated legislation.

Id. at 148 (noting that a choice-of-law amendment extinguished a cause of

action “indirectly,” and that “[a]n interest in maintaining an established

common-law cause of action is greater than an interest in choice-of-law

rules”).

       Because the record is silent as to the extent of benefits of Section

12.1058 and as to any public interest that might be served by repealing

waivers of immunity under the Whistleblower Protection Act, no compelling

interest justifies retroactive application of the statute. Cf. id.

       B. Section 12.1058(c) impairs a cause of action and remedial right
          available under a statute designed to compel government
          compliance with the law.

       Turning to the second Robinson factor, the nature of Walker’s affected

interest arises from a remedial statute “designed to enhance openness in

government and to compel the government’s compliance with law by

protecting those who inform authorities of wrongdoing.” City of Houston v.



                                         18
Levingston, 221 S.W.3d 204, 218 (Tex. App.—Houston [1st Dist.] 2006, no

pet.) (citations omitted). The Whistleblower Protection Act was enacted over

thirty years ago to protect public employees and to secure lawful conduct of

state and local governmental entities, including public school districts. See

id.3 The Legislature expressed no desire to disturb these significant and well-

established objectives.

       Additionally, Walker had a well-settled expectation that the rule of law

that permitting her recovery would not be changed after she filed suit. Cf.

Robinson, 335 S.W.3d at 148. (“The Robinsons could well have expected

[. . .] that a rule of law that permitted their recovery [. . .] would not be

changed after they had filed suit to abrogate their claim.”). Walker’s rights

not only existed but had also accrued prior to the enactment of Section

12.1058(c).

       As such, this appeal is distinguishable from cases where retroactive

application was allowed for statutes affecting only remedial rights. See, e.g.,

Union Carbide, 438 S.W.3d at 59 (“We fail to see how [the plaintiffs]



3
  See also H.B. 1075, 68th Leg., R.S., ch. 832, § 3 (1983), 1983 Tex. Gen. Laws 4751,
4752, repealed by S.B. 248, 73d Leg., R.S., ch. 268, §§ 1, 47, (1993), 1993 Tex. Gen.
Laws 609, 986 (codified at TEX. GOV’T CODE § 554.001–09). That this appeal was taken
from a ruling on a plea to the jurisdiction and stayed before Walker could discover
additional facts to support the merits of her claim should not affect this Court’s inquiry.


                                            19
reasonably could have had settled expectations that the Legislature would not

change the requirements for a wrongful death lawsuit [. . .] when they have

not demonstrated that they were contemplating such a suit before Chapter 90

became effective.”); City of Tyler v. Likes, 962 S.W.2d 489, 502 (Tex. 1997)

(holding that a statute was not unconstitutionally retroactive when the

plaintiff had two months to sue before it became effective).

        C. Application of Section 12.1058 to this appeal would entirely
           eliminate Walker’s accrued cause of action and remedy.

        Finally, with respect to the third Robinson factor, Section 12.1058(c)

would not merely “impact” Walker’s accrued rights and remedies—it would

impermissibly eliminate them altogether. See Robinson, 335 S.W.3d at 145;

Quick, 7 S.W.3d at 140. According to Neighborhood Centers, this factor does

not implicate the constitutional prohibition against retroactivity because the

effect may be viewed as partly jurisdictional in nature. See Mot. for Reh’g,

at 7.

        It is true that the general rule prohibiting retroactive legislation does not

ordinarily apply to “procedural, remedial, or jurisdictional statutes, because

such statutes typically do not affect a vested right.” Univ. of Tex. Sw. Med.

Ctr. at Dallas v. Arancibia, 324 S.W.3d 544, 547 (Tex. 2010) (emphasis

added). But this rule does not apply if the amendment effectively “bar[s] all


                                         20
remedy,” takes away the remedy altogether, or encumbers it with conditions

that would render it “useless or impracticable to pursue.” See Quick, 7 S.W.3d

at 140.

      A statute that merely regulates a remedy or proscribes a mode or time

of proceeding may fairly be applied in pending cases initiated before the

effective date. Id. For example, “[t]he Legislature can affect a remedy by

providing a shorter limitations period for an accrued cause of action without

violating the retroactivity provision of the Constitution, if it affords a

reasonable time or fair opportunity to preserve a claimant’s rights under the

former law.” Id.; see Sw. Bell Tel. Co. v. City of Kountze, 543 S.W.2d 871,

874–75 (Tex. Civ. App.—Beaumont 1976, no writ) (applying statute granting

agency exclusive jurisdiction over claim pending on interlocutory appeal, and

requiring trial court to dismiss suit because the statute did not “destroy the

rights of plaintiff; it simply [took] away from the trial court the jurisdiction to

adjudicate the question and conferred the exclusive jurisdiction upon another

tribunal [. . .]”). But laws affecting a remedy are unconstitutionally retroactive

if “the remedy is entirely taken away.” Likes, 962 S.W.3d at 502 (emphasis in

original, internal quotation omitted).




                                         21
      Because Neighborhood Centers’ suggested reading of Section

12.1058(c) effectively repeals both an accrued cause of action and waiver of

immunity under the Whistleblower Protection Act, retroactive application of

the statute would be unconstitutional.

      In the end, each of these factors is designed to ensure that new laws are

applied in a manner consistent with principles of fairness and reasonable

expectations of the parties. As the United States Supreme Court has held:

      Elementary considerations of fairness dictate that individuals
      should have an opportunity to know what the law is and to
      conform their conduct accordingly; settled expectations should
      not be lightly disrupted. For that reason, the principle that the
      legal effect of conduct should ordinarily be assessed under the
      law that existed when the conduct took place has timeless and
      universal appeal.

Landgraf, 511 U.S. at 265 (quoting Kaiser Aluminum v. Bonjorno, 494 U.S.

827, 855 (1990) (Scalia, J., concurring)).

      Because fairness, equity, and the applicable factors prevent the

retroactive application of Texas Education Code Section 12.1058(c) in a

manner that deprives Walker of accrued rights and remedies, jurisdiction

remains. As such, Neighborhood Centers’ motion for rehearing should be

denied.




                                         22
                     CONCLUSION AND PRAYER
      The general savings statute of the Code Construction Act preserves the

prior operation of the Whistleblower Protection Act and the rights and

remedies that accrued thereunder prior to the enactment of Section

12.1058(c). Regardless of this provision, retroactive application of Section

12.1058(c) would be unconstitutional. Therefore, this Court had subject

matter jurisdiction when it issued its opinion: its judgment should stand.

      Accordingly, Cross-Appellee Doreatha Walker requests that the Court

deny Appellant Neighborhood Centers, Inc.’s Motion for Rehearing. Walker

prays for any additional or alternative relief to which she may be entitled.

                                      Respectfully Submitted,
                                      MULLIN HOARD & BROWN, L.L.P.
                                      P.O. Box 2585
                                      Lubbock, Texas 79408-2585
                                      (806) 765-7491 – Phone
                                      (806) 765-0553 – Fax
                                      LMCMILLION@MHBA.COM
                                      LDOSS@MHBA.COM

                                      By: /s/ Lorna L. McMillion
                                          Lorna L. McMillion
                                          SBN 24086726
                                          Lawrence M. Doss
                                          SBN 24012544
                                      ATTORNEYS FOR CROSS-APPELLANT/
                                      APPELLEE DOREATHA WALKER




                                       23
                     CERTIFICATE OF COMPLIANCE
      I do hereby certify that the relevant contents of this document consist of

4,461 words, in compliance with TEX. R. APP. P. 9.4, and this document

complies with the typeface requirements of TEX. R. APP. P. 9.4(e) because it

has been prepared in a proportionally spaced typeface using Microsoft Word

2013 in 14 point Times New Roman font.



                                   By:     /s/ Lorna L. McMillion
                                           Lorna L. McMillion




                                      24
                        CERTIFICATE OF SERVICE

       I further certify that on September 21, 2015, a true and correct copy of
the foregoing document was sent to all counsel of record as indicated below:

Linda P. Wills
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER, L.L.P.
909 Fannin St., Ste. 3300
Houston, TX 77010
Telephone: 713-353-2000
Facsimile: 713-785-7780
linda.wills@wilsonelser.com


                                   By:     /s/ Lorna L. McMillion
                                           Lorna L. McMillion




                                      25
                                     EXHIBIT "A"




                                                                                 H.B.ANo.A1171




1                                          AN ACT

2    relating to the applicability of certain immunity and liability

3    laws to open-enrollment charter schools.

4            BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

5            SECTIONA1.AASection 12.1056, Education Code, is amended to

6    read as follows:

7            Sec.A12.1056.AAIMMUNITY        FROM       LIABILITY      AND    SUIT.     (a)   In

8    matters related to operation of an open-enrollment charter school,

9    an open-enrollment charter school or charter holder is immune from

10   liability and suit to the same extent as a school district, and the

11   [its]   employees    and    volunteers       of   the    open-enrollment         charter

12   school or charter holder are immune from liability and suit to the

13   same extent as school district employees and volunteers.                         A member

14   of the governing body of an open-enrollment charter school or of a

15   charter holder is immune from liability and suit to the same extent

16   as a school district trustee.

17           (b)AAAn    open-enrollment     charter          school    is    a    governmental

18   unit as defined by Section 101.001, Civil Practice and Remedies

19   Code, and is subject to liability only as provided by Chapter 101,

20   Civil   Practice    and    Remedies   Code,       and   only     in    the   manner   that

21   liability is provided by that chapter for a school district.

22           (c)AAAn open-enrollment charter school is a local government

23   as defined by Section 102.001, Civil Practice and Remedies Code,

24   and a payment on a tort claim must comply with Chapter 102, Civil




                                              1
                                                              H.B.ANo.A1171

1    Practice and Remedies Code.

2          (d)AAAn   open-enrollment       charter   school   is   a    local

3    governmental entity as defined by Section 271.151, Local Government

4    Code, and is subject to liability on a contract as provided by

5    Subchapter I, Chapter 271, Local Government Code, and only in the

6    manner that liability is provided by that subchapter for a school

7    district.

8          SECTIONA2.AAThis Act takes effect immediately if it receives

9    a vote of two-thirds of all the members elected to each house, as

10   provided by Section 39, Article III, Texas Constitution.          If this

11   Act does not receive the vote necessary for immediate effect, this

12   Act takes effect September 1, 2015.




                                       2
                                                      H.B.ANo.A1171


______________________________       ______________________________

AAAAPresident of the Senate               Speaker of the HouseAAAAAA


      I certify that H.B. No. 1171 was passed by the House on May 8,

2015, by the following vote:AAYeas 140, Nays 0, 1 present, not

voting; and that the House concurred in Senate amendments to H.B.

No. 1171 on May 29, 2015, by the following vote:AAYeas 143, Nays 1,

2 present, not voting.


                                     ______________________________

                                         Chief Clerk of the HouseAAA


      I certify that H.B. No. 1171 was passed by the Senate, with

amendments, on May 27, 2015, by the following vote:AAYeas 31, Nays

0.


                                     ______________________________

                                          Secretary of the SenateAAA


APPROVED: __________________

AAAAAAAAAAAAAAAAADateAAAAAAA



AAAAAAAAA __________________

AAAAAAAAAAAAAAAGovernorAAAAAAA




                                 3
                                               EXHIBIT "B"


                                             BILL ANALYSIS


     Senate Research Center                                                                   H.B. 1171
     84R7567 CAE-F                                                              By: Farney et al. (Lucio)
                                                                                              Education
                                                                                              5/13/2015
                                                                                              Engrossed



     AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

     Currently, open-enrollment charter schools enjoy the same immunity from liability that public
     schools do; however, the law is less clear on the degree to which charters are immune from suit
     or subject to liability limits under the Texas Torts Claims Act. Recently, the Dallas Court of
     Appeals ruled that charters should be treated the same as public schools with regard to immunity
     from suit. Because this ruling only applies to that court's jurisdiction, however, charter schools
     will continue to fight costly legal battles to dismiss suits that should not have been filed in the
     first place.

     H.B. 1171 addresses the uncertainties surrounding charter schools' legal status by defining them
     as public schools for purposes of immunity from both liability and suit. The bill also clarifies that
     charter schools are eligible for the cap on liabilities under the Texas Torts Claims Act. These
     provisions will keep schools from expending their limited budgets on expensive court costs, and
     ensure that public money meant for education remains in the classrooms.

     H.B. 1171 amends current law relating to the applicability of certain immunity and liability laws
     to open-enrollment charter schools.

     RULEMAKING AUTHORITY

     This bill does not expressly grant any additional rulemaking authority to a state officer,
     institution, or agency.

     SECTION BY SECTION ANALYSIS

     SECTION 1. Amends Section 12.1056, Education Code, as follows:

            Sec. 12.1056. New heading: IMMUNITY. (a) Creates this subsection from existing text.
            Provides that an open-enrollment charter school or charter holder, in matters related to
            operation of an open-enrollment charter school, is immune to the same extent as a school
            district, and the employees and volunteers of the open-enrollment charter school or
            charter holder are immune to the same extent as school district employees and volunteers,
            rather than providing that an open-enrollment charter school, in matters related to
            operation of an open-enrollment charter school, is immune from liability to the same
            extent as a school district, and its employees and volunteers are immune from liability to
            the same extent as school district employees and volunteers. Provides that a member of
            the governing body of an open-enrollment charter school or of a charter holder is immune
            to the same extent as a school district trustee, rather than immune from liability to the
            same extent as a school district trustee.

                    (b) Provides that an open-enrollment charter school is a governmental unit as
                    defined by Section 101.001 (Definitions), Civil Practice and Remedies Code, and
                    is subject to liability only as provided by Chapter 101 (Tort Claims), Civil
                    Practice and Remedies Code, and only in the manner that liability is provided by
                    that chapter for a school district.

                    (c) Provides that an open-enrollment charter school is a local government as
                    defined by Section 102.001 (Definitions), Civil Practice and Remedies Code, and
SRC-DDS H.B. 1171 84(R)                                                                             Page 1 of 2
                   a payment on a tort claim must comply with Chapter 102 (Tort Claims Payments
                   by Local Governments), Civil Practice and Remedies Code.

                   (d) Provides that an open-enrollment charter school is a local governmental entity
                   as defined by Section 271.151 (Definitions), Local Government Code, and is
                   subject to liability on a contract as provided by Subchapter I (Adjudication of
                   Claims Arising Under Written Contracts with Local Governmental Entities),
                   Chapter 271 (Purchasing and Contracting Authority of Municipalities, Counties,
                   and Certain other Local Governments), Local Government Code, and only in the
                   manner that liability is provided by that subchapter for a school district.

     SECTION 2. Effective date: upon passage or September 1, 2015.




SRC-DDS H.B. 1171 84(R)                                                                        Page 2 of 2
